[1] Where the administrative authority of the United States of America, which is the requesting state, consented to confinement, trial, and punishment for crimes other than those originally permitted to be extradited after extradition was made pursuant to the extradition treaty between the Government of the Republic of Korea and the Government of the United States of America, and the court of not guilty of all the crimes originally permitted to be extradited, the validity of the extradition itself (effective) and whether the prosecution and the trial procedure are unlawful (negative)

[2] The case holding that the period applicable to the procedure for extradition procedure after the defendant escaped to the United States after committing the crime is not included in the number of days pending trial to be included in the sentence

[3] The meaning of the principle of prohibition of disadvantageous alteration and the standard for determining whether to change disadvantage

[4] In a case where only the defendant appealed, whether it violates the principle of prohibition of disadvantageous alteration by changing the collection imposed in the judgment of the court of first instance to confiscation (negative)

[5] The case holding that the defendant can additionally collect the value of the shares received as a bribe on behalf of the defendant since it is not reasonable to confiscate the shares

[6] In a case where the appellate court’s failure to impose confiscation or additional collection is unlawful, the scope of reversal of the final appeal

[1] Article 15 of the Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America provides that a person who is extradited under the above Treaty shall not be detained, tried, or punished in the requesting state for crimes other than the crimes for which extradition is permitted, but not by the Government of the Republic of Korea and the Government of the United States of America. Article 15 of the Extradition Treaty provides that a person who is extradited under the above Treaty shall be an extraditable crime, or a crime based on the same facts as a crime on which extradition is permitted, and which constitutes part of the extraditable or permitted crimes, such as a crime on which extradition is based on the same facts as a crime on which extradition is based, and the administrative authority of the requesting state consents to detention, trial, or punishment of the person in question. If the administrative authority of the requesting state of the United States of America consents to detention, trial, or punishment for all the crimes for which extradition is already permitted, it does not affect the validity of the extradition itself, as well as

[2] The case holding that pre-trial detention is a compulsory disposition which inevitably detains a defendant or a suspect in order to prosecute, and is not executed, but is similar to the type of deprivation of liberty, and therefore Article 57 of the Criminal Act stipulates that the whole or part of the pre-trial detention period shall be included in the principal sentence from the perspective of protection of human rights; however, the number of days for which the defendant demanded inclusion in the principal sentence as pre-trial detention period has been inevitably taken in order to achieve the purpose of prosecution, not a compulsory disposition period which has been taken, but a period of time for which the defendant escaped to the United States after committing a crime but falls under the procedure for taking extradition after being arrested pursuant to an extradition treaty between

[3] The principle of prohibition of disadvantageous alteration is to guarantee the defendant's right to appeal or the right to request a formal trial against a summary order. In the case of a higher court or a formal trial case appealed for the defendant only or on behalf of the defendant, the court shall not sentence more severe punishment than punishment already sentenced or notified for the same criminal facts. The judgment as to whether a sentence has been changed disadvantageous to the defendant sentenced shall be based on the seriousness of the criminal punishment under the Criminal Act, but the judgment shall be based on whether the defendant is substantially disadvantageous to the defendant, considering the whole order such as both concurrent punishment and additional punishment, suspension of execution, total number of days pending trial, period

[4] Change of additional collection imposed in the judgment of the court of first instance to confiscation in the judgment of the court of first instance may be deemed to be a new sentence which has not been pronounced in the court of first instance, but it may not be deemed that the collection is a disposition ordering the payment of the value in lieu of confiscation when all or part of the goods to be confiscated are not confiscated. In substance, there is no difference between confiscation and confiscation. In addition, Article 134 of the Criminal Act and Article 134 of the Act on Special Cases concerning Confiscation of Public Officials Crimes, and Article 134 of the Criminal Act and Article 134 of the Act on Special Cases concerning Forfeiture of Confiscation of Public Officials, which aims to prevent public officials from continuously holding illegal profits acquired through a crime involving official duties, such change does not constitute a substantial change in the interest of the defendant, even if the court of first instance alters the additional collection to confiscation in the opinion of the court of first instance as confiscation. Accordingly

[5] The case holding that since the defendant's shares received as a bribe are not seized and are registered in the name of the defendant's spouse on the register of shareholders, since the above spouse is not a person who has been sentenced to confiscation, submission of the confiscated articles cannot be ordered, and the above shares can be confiscated on the ground that it is not reasonable to confiscate the above shares on the ground that the judgment of confiscation does not have the effect of the decision of confiscation

[6] In a case where a ground for reversal exists only with respect to the part of confiscation or collection among the appellate judgment which rendered a main sentence, confiscation, or collection, the appellate court may reverse the part only, but in a case where the appellate court reverses the part only on the ground that the confiscation or collection was not pronounced, the appellate court's judgment cannot reverse the part only on the ground that there was no part of confiscation or collection in the appellate court's judgment. Accordingly,

[1] Article 15 of the Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America / [2] Article 57 of the Criminal Act / [3] Articles 368, 39, and 457-2 of the Criminal Procedure Act / [4] Article 368 of the Criminal Procedure Act, Article 134 of the Criminal Act / [5] Articles 3 (2) and 6 of the Act on Special Cases Concerning Forfeiture for Public Officials Crimes, Article 40 of the Office Regulations for Seized Articles 391 of the

[2] Supreme Court Decision 2002Do6606 decided Feb. 11, 2003 (Gong2003Sang, 864) Supreme Court Decision 2004Do482 decided Apr. 27, 2004 (Gong2004Sang, 946) / [3] Supreme Court Decision 2004Do6784 decided Nov. 11, 2004 (Gong2004Ha, 2067) / [4] Supreme Court Decision 82Do256 decided Apr. 13, 1982 (Gong1982, 547) / [6] Supreme Court Decision 92Do700 decided Jul. 28, 192 (Gong192, 2615)

Defendant

Defendant and Prosecutor

Law Firm Barun Law, Attorneys Kim Yong-il

Seoul High Court Decision 2005No628 delivered on July 15, 2005

The guilty portion of the lower judgment is reversed, and that part of the case is remanded to the Seoul High Court. The prosecutor’s remaining appeals are dismissed.

1. The court below established the first instance judgment that found the defendant not guilty on the ground that the evidence consistent with the above facts cannot be trusted as to the receipt of money, valuables, or property gains worth KRW 298 million in total from Nonindicted 1, and the money, valuables, or property gains exceeding KRW 10 million from Nonindicted 2, and Nonindicted 3 as to the duties of the chief of the National Police Agency's special investigation officer, and that the defendant is punished as a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery). Of the facts charged in this case, the defendant's receipt of KRW 70 million in the lower order of March 1, 2001 from Nonindicted 1, and KRW 30 million in the lower order of April 2, 200, and KRW 40 million in the second order of the same year (five million in the face value per share) and there is no other evidence that there is no error in the misapprehension of legal principles as to the duty relationship as alleged in the grounds for appeal.

2. Article 15 of the Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America (hereinafter referred to as the "Delivery Treaty") provides that a person who is extradited under the above Treaty shall not be detained, tried, or punished in the requesting state of crimes other than those for which extradition is granted, which are crimes permitted, or crimes based on the same facts as those on which extradition is granted, but which constitute extradition or a part of the crimes permitted extradition is based on the same facts as those on which extradition is based, and the administrative authorities of the requesting state of extradition shall not be detained, tried, or punished. According to the records, the administrative authorities of the requesting state of the United States of America (hereinafter referred to as the "the extradition treaty") of the requesting state of the facts charged in this case shall be aware that the requesting state of the consent to detention, trial, or punishment of the crimes for which extradition is not permitted (see, e.g., Supreme Court records 326 pages). In such a case, even if the original extradition was pronounced after being acquitted after it does not affect the validity of the extradition itself, and it does not affect the decision of the grounds for appeal.

3. In addition, pre-trial detention is a compulsory disposition which inevitably detains a defendant or suspect in order to prosecute, and is not executed, but is similar to the type of deprivation of liberty, Article 57 of the Criminal Act provides that the whole or part of pre-trial detention period shall be included in the principal sentence from the perspective of protecting human rights. The number of days for which the defendant demanded inclusion in the principal sentence as pre-trial detention period is not a compulsory disposition period which has been inevitably done in order to achieve the purpose of prosecution, but it cannot be deemed that the period for which the defendant had been arrested after committing a crime and has been arrested pursuant to the extradition treaty, and thus constitutes the pre-trial detention period to be included in the principal sentence. In addition, as long as the court below has partially included the pre-trial detention period for the defendant, it did not err by misapprehending the legal principles on the inclusion of pre-trial detention period in the principal sentence as alleged in the ground for appeal (see Supreme Court Decision 2002Do6606, Feb.

4. In full view of the evidence revealed by the court below, the defendant was found to have obtained 10,00 shares in the name of Non-Indicted 4 and 5,00 shares in the name of Non-Indicted 4, and 5,000 shares in the name of Non-Indicted 4 around June of the same year, and Non-Indicted 6 had 15,00 shares in the above shares on December 18, 202. The defendant was found to have not acquired 10,00 shares (760 shares number) from Non-Indicted 5,00 shares in the above shares on March 12, 200. The court below erred by misapprehending the legal principles as to the above 15,000 shares in the list of non-Indicted 1,000 shares, which were issued on April 24, 200, and thus, it was possible for the defendant to additionally collect 70,000 shares in the above shares under the name of Non-Indicted 1's shareholders (270,000 shares).

However, the principle of prohibition of disadvantageous alteration is to guarantee the defendant's right to appeal or right to request formal trial against a summary order. In the case of a higher court or formal trial which only the defendant appealed for the defendant or for the defendant, the court shall not sentence more severe punishment than that already sentenced or notified to the same criminal facts. Determination as to whether a sentence has been changed disadvantageous to the defendant sentenced shall be based on the seriousness of the criminal punishment, but it shall be determined based on whether the defendant is substantially disadvantageous to the defendant considering the whole order such as concurrent punishment or additional punishment, suspension of execution, total days of detention, period of detention in prison, etc. (see Supreme Court Decision 2004Do6784, Nov. 11, 2004, etc.). The principle of prohibition of disadvantageous alteration is that it is not clear that the court of first instance imposed a new punishment which the court of first instance did not pronounce, in its formal form, and it shall not be deemed that there is a change in the purpose of confiscation of the defendant's right to request formal collection in the appellate court's opinion that there is no substantial change in the purpose of confiscation law.

However, under Articles 2 and 3(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the crime committed by the defendant is a crime of violation of Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and both the property acquired as well as the property acquired as the negligence or consideration thereof should be confiscated. However, in cases where the confiscation is deemed inappropriate due to the nature and conditions of the property subject to the confiscation, whether a person other than the criminal has a right to the property or not, and other circumstances, the equivalent value may be additionally collected (Articles 3(2) and 6 of the same Act). (Article 3(2) and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes committed by the defendant. According to Article 40 of the Rules on the Aggravated Punishment, if the confiscated property is not seized, the prosecutor shall order the person who was sentenced to the confiscation to submit the confiscated property by an order to submit the confiscated property, and if the person who was sentenced to the confiscation fails to comply with such order, the court may order the confiscation of the above shares.

Nevertheless, the court below reversed the entire conviction part of the judgment of the court below solely on the ground that it is possible to confiscate the above shares of KRW 150 million among the amount of additional collection in the court of first instance. Furthermore, when the court of first instance declares confiscation without a judgment of the court of first instance, it did not order the confiscation of the above shares because it violated Article 368 of the Criminal Procedure Act, which provides for prohibition of disadvantageous alteration. Thus, the court below erred in the misapprehension of legal principles as to the relationship between confiscation and additional collection and the principle of prohibition of disadvantageous alteration, and as to the confiscation of illegal property and additional collection due to a specific offense of a public official, it affected the conclusion of the judgment. Accordingly, the prosecutor pointed out this issue and pointed out the grounds for appeal.

5. Accordingly, the Defendant’s appeal is without merit, and the Prosecutor’s appeal is with merit only within the scope recognized in the above paragraph (4). The Prosecutor’s appeal is dismissed on the grounds that there are grounds for reversal only for the part of confiscation or collection among the appellate judgment that rendered a judgment of forfeiture or collection (see, e.g., Supreme Court Decision 92Do700, Jul. 28, 1992). However, in a case where the appellate court reverses the judgment on the grounds that the confiscation or collection was not rendered, as in the case of this case, it cannot be reversed on the ground that there is no part of confiscation or collection in the appellate court’s judgment on the grounds that the part of the judgment of the lower court’s conviction was reversed, and that part of the case is remanded to the lower court, and

Justices Yang Sung-tae (Presiding Justice)