[1] The case holding that it is not enough to acknowledge the authenticity of the statement made by the person making the original statement in court on the sole basis of the statement that "the person making the original statement has made a true statement and signed and sealed it"

[2] The relation of the number of crimes in a case where the victim threatened the victim to take money exceeding the statutory brokerage commission limit

[1] The case holding that since the victim testified to the effect that he appeared as a witness on the fifth trial date of the first instance, and testified to the effect that he/she made a true statement and confirmed its content and affixed his/her signature and seal on the examination of the prosecutor, it is not clear whether such a statement is the purport of recognizing the authenticity of the protocol, such statement alone is insufficient to recognize

[2] The case where the defendant obtains money by threatening the victim and thereby receives money in excess of the upper limit of statutory brokerage commission is the case where one act constitutes several crimes.

[1] Article 312 of the Criminal Procedure Act / [2] Article 40 of the Criminal Act; Article 350 (1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Article 15 subparagraph 2 of the Real Estate Brokerage Act; Articles 20 (3) and 38 (2) subparagraph 5 of the Real Estate Brokerage Act

[1] Supreme Court Decision 82Do1865, 82Ga383 decided Oct. 12, 1982 (Gong1982, 1120), Supreme Court Decision 94Do1384 decided Sept. 9, 1994 (Gong1994Ha, 2685), Supreme Court Decision 94Do343 decided Nov. 11, 1994 (Gong194Ha, 3323)

Defendant

Defendant

Attorney Yoon Il-young

Changwon District Court Decision 95No1645 delivered on May 1, 1996

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. Of the facts charged in the instant case against the Defendant, the summary of the conflict is as follows. In other words, the Defendant is a person engaged in real estate brokerage business at Msan City. In other words, the Defendant, the seller, and Nonindicted Co. 1, a seller, mediated a contract for the sale of KRW 9,600,000 to KRW 8,330,000,000. The Defendant received KRW 2,550,000,000,000 from the seller to the victim Nonindicted Co. 2, the representative director of the said company, who is the above company, from the above brokerage commission for the above sales contract. If the Defendant did not inform the victim Nonindicted Co. 2, a representative director of the above company of the amount of KRW 2,50,000,000,000,000,0000,000 won of the penalty for the instant land purchase at his own discretion, by notifying the Defendant of the purchase of the above land by including the purchase price in the purchase price.

B. As to the above facts charged, the court of first instance found the defendant guilty by taking into account the defendant's partial statement in the court of first instance, the statement in the court of first instance in the court of first instance in the court of first instance, the statement in the prosecutor's office and the investigation officer in the original prosecutor's office in the court of first instance in the non-indicted 2's office, each statement in the prosecutor's office in the non-indicted 2'

C. However, the lower court’s determination that the Defendant, as stated in its reasoning, threatened Nonindicted 2 with intimidation, is difficult to easily obtain the said money for the following reasons. The evidence on the facts charged is examined in turn.

(1) The Defendant’s statement at the court of first instance does not constitute evidence to prove the facts charged in the instant case, with the content of denying the crime.

(2) According to the record, the statement of this Article prepared by the officer in charge of the investigation of the original district prosecutor's office is clear that it is produced as evidence to the court or it is not a legitimate evidence investigation. Thus, it cannot be admitted as evidence of conviction.

(3) We examine each written statement of the victim Nonindicted 2 prepared by the prosecutor and the prosecutor of the Changwon District Prosecutors' Office.

According to the records, the defendant did not agree to the written statement of the non-indicted 2 prepared by the prosecutor and the original prosecutor's office of prosecutor's office as evidence in the court of first instance. Therefore, the above written statement is admissible as evidence of conviction against the above facts charged only when the above non-indicted 2, who is the original prosecutor, must make a statement that the establishment thereof is true in the court of first instance. However, the above non-indicted 2, who appeared at the fifth court date, and testified to the purport that the prosecutor had made a true statement and confirmed the contents thereof and affixed his signature and seal to the investigation agency. Since it is unclear whether the above written statement is the purport of recognizing the authenticity of each written statement, it is insufficient to acknowledge the authenticity of each written statement (see Supreme Court Decisions 76Do3962, Nov. 27, 1979; 82Do1865, Oct. 12, 1982; 82Do383, Oct. 12, 1982).

(4) We examine the testimony of the above non-indicted 2 at the court of first instance.

(A) On September 4, 1994, the above non-indicted 2 asked the defendant to report the head of the above non-indicted 2's home at the defendant's office at his own office on the following day, and asked the defendant to open the head of the Tong at the defendant's office. Non-indicted 2 refused this request, and asked the defendant to visit the head of the Tong at the defendant's office. The defendant's address was 1.2 billion won because the defendant's address attempted to go back to the head of the Tong. However, it is difficult to believe that the defendant sent the head of the passbook at the 1.2 billion won due to the above circumstances. Further, it is difficult to believe that the non-indicted 2 demanded that the defendant pay the above money at his office around 10:00,000 won by asserting that the two half of the defendant was 2.5 billion won or more, and it is difficult to request the defendant to make a statement at the prosecutor's office after two hundred five billion won or more, and that the defendant made a statement at the above time of two hundred five billion won.

(B) As to when the commitment to brokerage commission related to the conclusion of the instant sales contract in the judgment of the court of first instance was made, Nonindicted 2 stated that when the first statement was made before the Changwon District Prosecutors' Office investigator on July 19, 195, the Defendant changed two Bans at the time of entering into the contract, and subsequently, when the statement was made before the prosecutor on August 1, 1995 and August 3, 1995, Nonindicted 2 stated that the Defendant agreed to two Bans at the time of entering into the contract at the time of entering into the contract. In addition, in the first instance court, the testimony of Nonindicted 2 is not consistent, such as testimony that there was no mentioning about the commission prior to entering into the contract, and in that sense, the testimony of the said Nonindicted 2 is difficult to believe.

(5) According to the records, the defendant, who received 2.5 million won from the above non-indicted 2, prepared a receipt, and delivered it to the above non-indicted 2 (the 24th page of the investigation record). According to the above non-indicted 2's statement, since the non-indicted 2 made the defendant a tax withholding amount of KRW 2.5 million and delivered the full amount to the defendant that he would make a tax return at his own tax office (the investigation record 21 pages), it is difficult to understand that the defendant demanded a receipt from the victim by means of intimidation and talked about the issue of tax, or that the person who takes over the receipt from the victim was issued a receipt to the victim.

In addition, even after the above non-indicted 2 paid a sum of KRW 250 million to the defendant, the above non-indicted 2 stated that he was present as a witness and paid the above amount by the defendant's intimidation only when he investigated the suspicion of receiving the real estate brokerage commission exceeding the statutory limit on July 15, 1995 by the Ni-Gun's information about about about 10 million won. It is difficult to understand that the victim who received a large amount of money of KRW 250 million without taking any measures for a long time.

D. In a false criminal trial, the conviction shall be based on the evidence submitted to the court as evidence and has gone through legitimate evidence examination, and further, it shall be based on the evidence with probative value, which could lead the judge to have a conviction that the facts charged are true beyond a reasonable doubt. As determined above, the court below affirmed the judgment of the first instance which found the guilty guilty of the facts charged of the crime of public conflict by employing the evidence which was submitted as evidence to the court and has not been admissible, or is not consistent with the evidence or statement which was not admissible, and has not been credibility since it was inconsistent with the above, and thus, affirmed the judgment of the court of first instance which found the guilty guilty of the facts charged of the crime of public conflict. The court below erred in the misapprehension of the rules of evidence, which affected the conclusion

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment of the court of first instance maintained by the court below, the court of first instance found the defendant guilty of receiving money and valuables exceeding KRW 2,50,000,000,000,000,000,000,000, which is the upper limit of statutory brokerage commission, by threatening the victim Nonindicted 2 by threatening the victim Nonindicted 2, and the defendant's so-called revolving the defendant, Article 350(1) of the Criminal Act and Articles 38(2)5, 15 subparag. 2, and 20(3) of the Real Estate Brokerage Act shall apply to the violation of the Real Estate Brokerage Act, and Article 38(1)2 and 50 of the Criminal Act shall apply to the violation of the Real Estate Brokerage Act, and they shall be deemed as concurrent crimes under Articles 37(1)2 and 50 of the Criminal Act.

However, the defendant's taking of money by threatening the above non-indicted 2 and thereby receiving money in excess of the statutory brokerage commission limit constitutes several crimes. Thus, the court below's finding the concurrent crimes as concurrent crimes and admitting it as concurrent crimes, which affected the conclusion of the judgment by misapprehending the legal principles on concurrent crimes. The second argument is justified.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)