Defendant

Han Purification

Law Firm Mine Name, Attorney Park Sang-hoon

A defendant shall be punished by imprisonment for not less than two years and six months.

169 days of detention before this judgment is rendered shall be included in the above sentence.

35,237,200 won shall be additionally collected from the defendant.

Of the facts charged in the instant case, the charge of bribery on July 23, 2002 and the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on April 2, 2003 shall be acquitted.

The Defendant works as an expenditure officer of the National Fisheries Research Institute of the Ministry of Oceans and Fisheries (name omitted), and the person who was in charge of general affairs, accounting, and expenditure management, etc., in collusion with Nonindicted 7 and Nonindicted 10, the researcher of the said Research Institute, from October 27, 2002, who was the head of the said Research Institute, to receive part of the profits from the construction business operator who was awarded a contract for the construction work by withdrawing the money from the National Treasury by means of preparing a written resolution of expenditure and a estimate of payment in the manner of purchasing government-funded materials, as if the said Research Institute ordered the construction work and purchased government-funded materials, or by embezzlement by means of delivering it to the construction business operator under the pretext of construction cost, or to receive part of the profits from the construction business operator who was awarded a contract for the construction work ordered by the said Research Institute as a bribe

1. Around October 18, 2002, the office of the research institute of Gyeonggi-gu (name omitted) and the defendant's office of the research institute of Gyeonggi-gu (name omitted), while the fact did not have purchased government-funded materials from non-indicted 13 on June 10, 202, despite the fact that the research institute purchased government-funded materials from non-indicted 13 in 19,108,100 won, the research institute prepared a false disbursement resolution and estimate as if it purchased the government-funded materials from non-indicted 13 in 19,108,100 won, and then withdraws the same amount from the National Treasury to the account of non-indicted 13. On the 23th of the same month, the research institute (name omitted) knew that the government-funded materials were purchased from non-indicted 13,6 million won after deducting value-added tax, etc. from non-indicted 13 on the parking lot of the research institute of the same month to April 15, 2003.

2. On October 18, 2002, at the office of the Research Institute (Name omitted), for the purpose of exercising the government-funded material from Nonindicted 13, as described in the preceding paragraph, although there was no fact that the government-funded material was purchased from Nonindicted 13, as described in the preceding paragraph, the fact shall be recorded in the column for registration of the cause of the expenditure decision site kept at that place, as if purchased, on June 10, 2002, in the column for registration of the act of causing the expenditure decision site, on October 18, 2002, in the column for claims, on October 18, 2002, in the name column, the latter shall be written in the column for payment 2. The latter shall be written in the column for credit transfer, 19,108,100 won in the amount column, and then Nonindicted 2 shall affix his own seal on the column for financial commissioner’s seal affixed to the Defendant’s seal affixed to the expenditure officer’s seal, and shall be written in the manner corresponding to the expenditure amount in the attached Form 2.

3. Each disbursement resolution, which is a false official document, as described in the above two paragraphs, shall be kept in the office of the research institute (title omitted) as if the completion of each disbursement resolution, is authentic; and

4. On October 23, 2002, the non-indicted 16 corporation received KRW 6 million from the non-indicted 13 to the non-indicted 13 under the pretext of the consideration that the non-indicted 13 could receive the subcontract and received the bribe in relation to the defendant's duties by receiving KRW 38 million in total from the construction business operators, such as the non-indicted 13, etc., for a total of ten times from July 7, 2003.

1. Partial statement of the defendant;

1. The defendant's partial statement in the first trial record;

1. Each prosecutor's protocol of interrogation of the accused (including Nonindicted 13's statement among the sixth suspect interrogation protocol)

1. The prosecutor’s statement concerning Nonindicted 17

1. Each police suspect interrogation protocol against the accused (including Nonindicted 13’s statement among the second suspect interrogation protocol)

1. A copy of each protocol of interrogation of Nonindicted Party 1 by the police (including the statement of the Defendant among the copies of each protocol of interrogation of Nonindicted Party 3 and four times)

1. A copy of each police interrogation protocol regarding Nonindicted 6 (including the statement of the Defendant in the second interrogation protocol)

1. A copy of each police interrogation protocol on Nonindicted 2, 7, 9, and 15 (including the part of the Defendant’s statement among the copies of Nonindicted 2’s interrogation protocol on Nonindicted 2)

1. A copy of each police statement made against Nonindicted 5, 14, and 17

1. The written resolution for each disbursement (the investigative record, the number of pages 306, 329, 334, 814), the written statement on the act of causing expenditure (the number of pages 110), and the details on the use of expenses;

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. The first instance court's loss: Article 5 subparagraph 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 355 (1) of the Criminal Act, Article 2 subparagraph 1 of the Act on Liability of Accounting Personnel, Etc., and Article 30 of the Criminal Act, comprehensively,

(b) The point of preparing each false official document in Article 2 of the ruling: Articles 227 and 30 of the Criminal Act (Selection of Imprisonment);

(c) The holding of each false official document as shown in the judgment of the court: Articles 229, 227 and 30 of the Criminal Act (Options of Imprisonment);

(d) The point of acceptance of bribe No. 1 through No. 9 each year in the annexed list of crimes (3) of the judgment No. 4: Articles 129(1) and 30 (Selection of Imprisonment) of each Criminal Code;

E. Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 129(1) and 30 of the Criminal Act

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act (Aggravation of concurrent crimes for concurrent crimes prescribed in the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) with the largest punishment)

1. Discretionary mitigation;

Article 53 and Article 55 (1) 3 of the Criminal Act (Considering circumstances, such as the fact that there is no record of punishment, embezzlement, or acceptance of the amount equivalent to the research institute's expenses, etc., the return of the amount equivalent to KRW 25 million to Nonindicted 13, who has been employed as a public official for 25 years, but appears to be retired ipso facto from office in the instant case, and that his mistake is remarkably divided)

1. Calculation in the number of detention days before judgment is rendered;

Article 57 of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Code, Article 6 of the Act on Special Cases concerning Confiscation of Public Officials' Crimes (Public Offering to Acceptance of Bribery and Causing loss to the National Treasury, but it cannot be individually known that money and valuables received or loss to the National Treasury are received or to the National Treasury, and thus, the total sum of 105,711,600 won shall be collected equally from three accomplices)

1. Summary of the facts charged concerning the acceptance of bribe on July 23, 2002 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on April 2, 2003 and August 23, 2002

Defendant,

A. A. Around June 20, 2002, upon entering into a contract with Nonindicted 13 to purchase government-funded materials, such as anti-refluencies, from Non-Indicted 13 for KRW 22,460,000, a part of the above construction amount was returned as expenses, etc. for the operation of the research institute. On or around July 23, 2002, after receiving KRW 6 million from Non-Indicted 13 in the parking lot for Namyang-si (hereinafter omitted), the Defendant received a bribe in connection with the Defendant’s duties;

B. On March 26, 2003, upon entering into a contract with Nonindicted 14 to purchase yellow soil necessary for outdoor raising place work with the amount of KRW 20 million, and on April 2, 2003, after receiving KRW 10 million in the research institute from the amount of KRW 10 million after deducting the yellow soil value and equipment costs, etc. within the research institute on April 2, 2003, and accepting a bribe in relation to the Defendant’s duties, by receiving KRW 10 million in the name of office expenses;

C. Within the research institute on August 23, 2002 (title omitted), Nonindicted 15 received a bribe in relation to the Defendant’s duties after receiving 10 million won in the name of rebates in relation to the slot and reinforcement of the above research institute’s office building from Nonindicted 15 (title omitted).

2. Defense and issues of the defendant;

Although the Defendant received money from Nonindicted 13, etc., the Defendant concluded a private contract for government-funded materials supply or construction work, concluded a contract in a way to lower the contract amount than the amount stated in the written estimate submitted by the said business entity, and received a refund of the amount paid out from the said business entity and did not receive the said money as a bribe, the prosecutor asserts that the Defendant was indicted for bribery. The issue of this part is whether the Defendant’s money received from the business entity is a bribe or merely received a refund of the amount equivalent to the amount paid out from the business entity.

3. Determination

A. Criteria for determination

Since a bribe in the crime of bribery is an unjust profit in relation to his/her duties, whether the Defendant entered into a contract by means of lowering the contract amount rather than the amount stated in the written estimate submitted by the business entity or merely received a refund of the amount paid out from the business entity should be determined by comprehensively taking into account the intent of the parties who give and receive the money and the terms of the contract and the ratio of the amount paid out of the contract amount. The above facts charged are examined in accordance with the aforementioned determination criteria.

B. The point of acceptance of bribe on July 23, 2002

On June 20, 2002, the above money was received in relation to the supply of government-funded materials, such as anti-refluences (22,460,000 won), and the Defendant stated that the amount of the material was returned after the collection of the material was made by the police. However, the prosecutor explicitly stated that the above money was received by rebates, but again stated that the above money was returned by the prosecutor, but in this court, the above money was merely a return of the contract amount after the collection of the contract amount.

In light of the following circumstances, the court statement of the defendant, the second and sixth suspect interrogation protocol of the defendant (including the part concerning the statement of the defendant, the second and the second prosecutor's interrogation protocol of the defendant, and the second prosecutor's interrogation protocol of the defendant against the defendant, i.e., the above money in the interrogation of the defendant in the prosecutor's office, which was acknowledged as a whole, was explained in detail as to whether it was made at the time, and the fact that the money received from the non-indicted 13 reaches about 26% on the basis of total contract amount, etc., it does not seem that the non-indicted 13 delivered the part concerning his interest as a bribe to the defendant. Thus, it is insufficient to recognize that the defendant received the above money as a bribe only by the defendant's statement at the prosecutor's office on this part, and there is no other evidence to acknowledge it otherwise.

C. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on April 2, 2003

On March 26, 2002, the above money was received in relation to the purchase of yellow soil necessary for outdoor raising 20 million won, and the defendant explicitly stated that the above money was received rebates, but in this court, the defendant argued that the above money was merely a contract amount and returned.

In full view of the defendant's court statement, the third prosecutor's protocol of interrogation of the defendant, each prosecutor's protocol of the police's statement against the defendant, each prosecutor's protocol against the non-indicted 14, and the disbursement resolution (55 pages), the non-indicted 14 did not clearly state the character of the above money. However, since the defendant knew that the amount received from the non-indicted 14 reaches about 50% based on total contract amount, the non-indicted 14 did not seem to have delivered the defendant's interest portion as a bribe, it is insufficient to recognize that the defendant received the above money as a bribe only by the defendant's statement at the prosecutor's office on this part, and there is no other evidence to prove it otherwise.

D. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on August 23, 2002

The above amount is received in relation to Slve and Reinforcement Corporation of June 27, 2002. The defendant stated that the above amount was received as rebates from the police to the prosecution. However, the defendant argued that the above amount was merely a contract amount and returned amount in this court.

In light of the following circumstances, the defendant himself stated that he could not be consistent with the character of the above money, i.e., the defendant himself, but in light of the fact that the police stated that the defendant changed the amount of KRW 10 million from the construction cost to the amount of KRW 700 to KRW 8 million, and that the defendant stated in a relatively detailed statement about the character of the above money, it is difficult to believe the content of the five prosecutorial protocol of the defendant and the third prosecutorial protocol of the defendant's interrogation of the defendant about this part, and each submitted evidence alone is insufficient to recognize that the defendant received all the above amount of the above amount exceeding KRW 2 million which the defendant recognized as a bribe, and there is no other evidence to prove this otherwise.

4. Sub-committee:

Therefore, since each of the above facts charged constitutes a case where there is no proof of crime, each of the above facts charged must be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on August 23, 2002, the part of the charge concerning acceptance of bribe stated in the attached Table 4 (3) of the crime sight table (Bribery)

1. The point of occupational embezzlement listed in attached Table 1-4 of the List of Offenses (1) in attached Table 1;

(a) Prosecution of the defendant;

On April 15, 2003, the Defendant concluded a yellow soil purchase contract with Nonindicted Co. 17 and 39.8 million won with Nonindicted Co. 18 on April 15, 2003, but Nonindicted Co. 17 did not have the ability to supply yellow soil, and purchased yellow soil from Nonindicted Co. 14. Nonindicted Co. 17 transferred KRW 39.8 million to Nonindicted Co. 17, and again returned KRW 36.4 million from Nonindicted Co. 17. Of that amount, the Defendant transferred KRW 16.4 million to Nonindicted Co. 14, who actually supplied yellow soil, and disbursed the remainder as construction cost, such as the creation of the warden’s sand. In relation to this, the Defendant asserts to the effect that he is innocent on the ground that he did not have the intention to obtain illegal permission.

B. Determination

The following circumstances, which are acknowledged as a combination of the above evidence and the copy of the deposit passbook (830 pages), i.e., Nonindicted 17, on April 25, 2003, stated that the defendant paid 39.8 million won to the defendant as construction expenses, i.e., the cash 20.8 million won and 19 copies of the check. In light of the fact that Nonindicted 17, on April 25, 2003, stated that the defendant sent 39.8 million won to the defendant as profits, it is difficult to accept the defendant's suspect examination statement or the defendant's suspect examination statement as to this part of the defendant's suspect examination statement as to the defendant's unlawful act of incurring 17,000 won, and the defendant stated that he paid 9.8 million won out of the above amount to the non-indicted 17, but it is difficult to accept the defendant's statement or the defendant's statement as to the defendant's unlawful act of incurring expenditures. In light of the above, it is difficult to accept the defendant's statement.

2. The point of acceptance of bribe listed in the annexed list (3) 2 through 4, 6 through 10 of the annexed list of crimes (3) in the judgment of the court;

(a) Defense and issues of the defendant;

The defendant alleged that the defendant received money from Nonindicted 13, etc. for the acceptance of bribe listed in the annexed crime list (3) 2 through 4, 6 through 10 of the annexed crime list (3) in the judgment of the court below. However, all of the defendant asserted that the defendant entered into a contract by means of entering into a private contract on construction contract or supply of government-funded materials and received a refund of the amount equivalent to the contract amount stated in the estimate submitted by the above business operator, and that he did not receive the money from the business operator as a bribe (the defendant asserted that the defendant made a statement that he received the money as a bribe even in the case of receiving the money by means of unfasing the concept of rebates in the investigation stage, but it is not acceptable to accept the defendant's above assertion in light of the fact that the defendant's statement was made separately from the case of receiving the money by unfasing the contract amount at the investigation stage and the case of receiving it as a rebates at the investigation stage.

B. Determination

(1) Criteria for determination

3.A. Determination in accordance with the criteria set forth in paragraph (1).

(2) On March 15, 2002, the acceptance of KRW 500,00 from Non-Indicted 4 of the development of the acceptance of bribe (trade name omitted)

The above money is received in relation to 2.5 million won services ordered by Non-Indicted 4 to cut away trees, and the above money is not an advance promise from the police to the prosecution, but it is stated that Non-Indicted 4 received in return for the service within the research institute. Although the amount received from Non-Indicted 4 corresponds to 20% of the total contract amount, the ratio is somewhat high since the content of the contract constitutes 20% of the total contract amount, but it seems that there is considerable room for regulating profits because the contents of the contract are not necessary for basic facilities or materials, it is not that the above amount constitutes a bribe against the defendant (the fifth prosecutor's interrogation protocol against the defendant, the third police's interrogation protocol against the defendant, the contents of the suspect's interrogation protocol, and the contents of the use of expenses).

(3) Acceptance of the bribe in the middle of April 2002 (mutually omitted) from Nonindicted 5 to KRW 1 million

In light of the fact that the above money was received in relation to the supply of consumeds for experiments equivalent to approximately KRW 20 million for policemen on April 2002, the defendant made a statement that the above money was customarily received as case expenses from the police to the prosecution, and Nonindicted 5 also stated that the above money was paid as case expenses by the police, and that the amount received from Nonindicted 5 is less than 5% of the total contract amount, it is reasonable to deem that the above money constitutes a bribe corresponding to the defendant (the fifth prosecutor's interrogation protocol against the defendant, the third prosecutor's interrogation protocol against the defendant, the police's interrogation protocol against the defendant, and the statement statement of the police against Nonindicted 5).

(4) On May 2, 2002, the acceptance of bribe amounting to KRW 500,00 from Nonindicted 5 (mutually omitted)

In light of the fact that the above money was received in relation to the supply of consumed goods for experiment around May 2, 2002, and the defendant stated that the above money was received as case expenses customarily from the police to the prosecution, and that Nonindicted 5 also paid as case expenses by the police, and that the amount received from Nonindicted 5 is the amount equivalent to 10% of the total contract amount, it is reasonable to deem that the above money constitutes a bribe to the defendant as to the part of his interest out of the amount contracted by Nonindicted 5 (the fifth prosecutor's protocol of interrogation of the prosecution, the third police interrogation protocol against the defendant, and the copy of the police protocol against Nonindicted 5).

(5) On October 10, 2002, the acceptance of bribe (mutually two omitted) from Nonindicted 6 to five million won from the point of acceptance of bribe (mutual two omitted)

Around September 2002, the above money was delivered as KRW 1826,00,00,000, including the delivery of KRW 1,826,000,000,000,000. At the police first, the defendant stated that the above money was returned after he was overcharged the contract amount, but at the police first, the defendant stated that the above money was not returned after he was overcharged the contract amount. The prosecutor stated that the above money was rebates related to the delivery contract, and the prosecutor stated that the above money was not returned. The prosecutor stated that the above money was rebates related to the delivery contract, which was made by the police. The defendant stated that the amount received from the non-indicted 6 was about 16% of the total contract amount, but it was about 20% of the profits if the non-indicted 6 delivered from the police, which was difficult at the time, and that it was reasonable to view that the above part of the suspect interrogation protocol was a bribe of the defendant's suspect interrogation committee against the non-indicted 6's suspect.

(6) On August 23, 2002, the acceptance of bribe (mutually three omitted) from Nonindicted 15 to two million won (mutual three omitted)

In light of the above facts, the above amount was received in relation to Slve and Reinforcement Corporation on June 27, 2002. The Defendant stated that the above amount was received as rebates from the police to the prosecution, and Nonindicted 15 also stated that the Defendant changed the amount of KRW 10,800,000 in the construction cost, and that the amount received from Nonindicted 15 is about 2% of the total contract amount, it is reasonable to deem that the above amount of KRW 2,00,000 out of the above 10,000 won constitutes a bribe for the Defendant among the amount contracted by Nonindicted 15 (the fifth prosecutor's interrogation protocol against the Defendant, the third prosecutor's interrogation protocol against the Defendant, the police interrogation protocol against the Defendant, and the police interrogation protocol against the Defendant 15).

(7) On July 31, 2002, the acceptance of bribe from Nonindicted 9 to seven million won (the acceptance of bribe from Nonindicted 9)

On May 2, 2002, the above amount was received in relation to the research institute basic reinforcement work. The defendant stated to the effect that the police would receive rebates although he did not explicitly state the nature of the amount, the above amount was explicitly stated in the prosecutor's office that he would receive rebates, and the defendant's amount received from the non-indicted 9 constitutes 15% of the total contract amount. However, although the defendant's amount received from the non-indicted 9 was a little amount of money, the non-indicted 9 did not falsely state his own interest and did not pay money to the defendant, and he did not pay money to the police at the time of the non-indicted 9, but did not operate the equipment. However, considering the fact that the defendant stated that the defendant delivered the above amount to the non-indicted 9 that he would take another construction work, it is reasonable to view that the above amount constitutes a bribe that corresponds to the part of his interest among the amount contracted by the non-indicted 9 (the defendant's fifth suspect interrogation protocol of the prosecutor's office, the defendant's suspect interrogation protocol of the defendant, and the suspect suspect interrogation of the defendant).

(8) The charge of acceptance of bribe on July 2, 2003 and the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on July 7, 2003 (Receiving KRW 15 million from Nonindicted Co. 3 Co. 1)

From March 27, 2003 to April 15, 200, the above amount is given or received between the public corporation and the public corporation for outdoor breeding place with approximately KRW 70,00,000 in total cost, and between April 23, 200 to July 1, 2003. The defendant stated that the police did not explicitly state the nature of the amount, but he was paid for rebates. The public prosecutor stated that the above amount was explicitly stated that the above amount was received for rebates, Nonindicted 1 also stated that the defendant was paid for the police, and that the amount received from the police was about KRW 15% in total based on the contract amount. However, it is reasonable to view that Nonindicted 1 stated that the public prosecutor's suspect interrogation protocol was a bribe against the defendant (the above part of the suspect interrogation protocol against the defendant) in consideration of the fact that the amount was paid from the police as honorarium to the defendant, and that the defendant stated that there was no interest above the amount of money for the public corporation, the above part of the suspect interrogation protocol against the defendant 1.

(9) Sub-determination

Therefore, the defendant's argument on this part cannot be accepted in entirety.

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on July 7, 2003 (Receiving KRW 10 million from Nonindicted 1)

The defendant alleged that he was not the defendant but the non-indicted 2, who received KRW 10 million from the non-indicted 1 on the above date, and therefore, this part of the facts charged is not guilty. However, as long as it can be acknowledged that the defendant and the non-indicted 2, etc. received KRW 10 million from the non-indicted 1, the defendant was guilty even if he did not directly receive KRW 10 million from the non-indicted 1, since the defendant did not receive KRW 10 million, the defendant's assertion on this part cannot be accepted.

As seen earlier, there are extenuating circumstances for the Defendant. However, the instant crime was committed in collusion with the president and research officer of the research institute while the Defendant is in office as an expenditure officer of the research institute, resulting in a loss of the National Treasury equivalent to KRW 67 million in the course of preparing, using a false official document in collusion with the president and research officer of the research institute, and resulting in a loss of the National Treasury equivalent to KRW 38 million in the short term, and the amount equivalent to the amount received from the business operators in the short term is actively demanded by the Defendant as well as the amount equivalent to the amount received from the business operators in the short term of 10 times, as well as the crime is planned and repeated, which is very bad in the nature of the crime, and is not recovered from any damage to the National Treasury. Accordingly,

Justices Kim Jong-young (Presiding Justice) Lee Jong-young