2018No49 A. Brokerage and acceptance of bribe

(b) Offering of bribe;

1.(a)A

2.(b)B

Prosecutor

Duties Governing (prosecutions) and compulsory (public trial)

Law Firm C (For Defendant A)

Attorney E, D

Attorney AA (the national election for the defendant B)

Daejeon District Court Decision 2017Gohap266 Decided January 12, 2018

May 25, 2018

All of the appeals by prosecutors are dismissed.

1. Summary of the grounds for appeal;

Defendant B led to the confession that a bribe was given to Defendant A regarding good offices. The confession and the statement made by Defendant B in the original court, court, and investigation agency on the case of acceptance of bribe against Defendant A is highly reliable. Nevertheless, the lower court rejected the Defendant B’s statement, and the other evidence alone is insufficient to believe, and the bribe regarding good offices from Defendant A was given to Defendant B.

B accepted the bribe, and it is insufficient to recognize that Defendant B offered the bribe, and sentenced the Defendants not guilty. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

2. Determination

A. The judgment of the court below

Based on evidence duly admitted and examined, the court below acknowledged that Defendant A was provided with alcoholic beverage and spawn, etc. more than nine times as indicated in the separate list of crimes No. B. However, on the premise that Defendant B’s progress in the trial, such as violation of the Punishment of Tax Evaders Act, etc., Defendant B’s arrest and detention process, Defendant B’s attorney-at-law in the process, etc., and the progress of the trial, the court below asserted that: (a) the circumstance that Defendant B was under trial; (b) it appears that the specific contents of the case, response measures, progress, etc. were not divided; and (c) there was no evidence that Defendant B would have tried to help the public prosecutor during the trial; and (d) it was difficult to view Defendant B’s testimony that Defendant B would have been under the pretext of offering any of the aforementioned criminal cases to Defendant B; and (d) it was difficult to view that Defendant B would have been present at the court below’s first hearing on the grounds that Defendant B would have been present during the trial; and (e) there was no evidence that Defendant B would have been demanded for the first time to return of the cost.

B. Judgment of the court below

In full view of the above facts admitted by the lower court and the evidence duly admitted and examined by the lower court, and the following circumstances, the lower court’s aforementioned determination is justifiable, and there is no error of misunderstanding of facts as alleged by the public prosecutor.

① On September 2013, Defendant B made a false statement with B under the pretext of Defendant B’s solicitation, it was first known that Defendant B had been serving as a judge at the time of Defendant B’s interrogation protocol, and Defendant A would have been able to exercise influence as a judge. However, Defendant B’s statement made on April 21, 2017, which was prepared by the investigation of Defendant B following the complaint, was the same as that of Defendant B’s witness at the lower court’s prosecutor’s office. There was no question as to whether Defendant B had been serving as a witness at the time of the first interrogation protocol, and how it was said that Defendant B would have been serving as a witness during the investigation of Defendant B’s interrogation protocol. There was no question as to whether Defendant B had been serving as a witness in violation of the Punishment of Tax Evaders Act. However, Defendant B would not be said to be the same as that of Defendant B’s witness at the time of the first interrogation protocol.

(3) “A bribe is given and received in connection with a referral of matters pertaining to the duties of another public official” as referred to in Article 132 of the Criminal Act refers to an act of accepting and receiving a bribe under the pretext of arranging matters pertaining to the duties of another public official, and there is no need to specify the contents of the other public official, who is the other party to the referral, or his/her duties. Since the act of arranging a bribe is in the future even if it is in the future, there is no need for any pending issues to be resolved by the referral of the other public official at the time of accepting and receiving the bribe. However, in order for the crime of accepting and arranging a bribe to be established, matters pertaining to the duties of another public official, which belong to the duties of the other public official, and a certain degree must be specified that the pretext of accepting and arranging the bribe is related to the referral of such matters. It is merely limited to the extent that the other public official would have any help or possibility of causing damage if it appears well to the person accepting and receiving the bribe, and it does not constitute the crime of accepting a bribe (see Supreme Court Decision 232017Do246.

However, even if the defendant B's complaint, the written statement dated April 21, 2017, the suspect interrogation protocol of the defendant B, and the witness B's legal statement, it is clear that the defendant A merely stated that he will help the defendant B, and that there is no conversation about the specific contents of the case against the defendant B. In addition, the defendant B could help the defendant's suspect interrogation protocol because he was a judge. (Evidence No. 559 of the evidence record), although it was not stated that he will help the defendant, he would help the defendant in any form. "," the defendant A would be a judge, the suspect interrogation protocol of the defendant B, and the witness's testimony of the court below, and there is no possibility that the sentence will reduce the defendant's punishment. In light of the above, the defendant B's suspect interrogation protocol of the defendant B and the witness's testimony of the court below, the defendant's witness's testimony and the witness's testimony of the court below would not help the defendant B.

Therefore, the prosecutor's above assertion is without merit.

3. Conclusion

Since all appeals filed by the prosecutor against the defendants are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, judges and leather

Judges Doo.

Judges in depth;