Defendant 1 and one other

Defendant 1 and Prosecutor

Freeboard (prosecutions) and the highest court;

Law Firm Seolim et al.

Daejeon District Court Decision 2014Gohap71 Decided January 8, 2015

Of the judgment below, the part on Defendant 2 shall be reversed.

Defendant 2 shall be punished by imprisonment for a term of two years and six months and by a fine of thirty thousand won.

When Defendant 2 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 200,000 into one day.

30,000,000 won shall be additionally collected from Defendant 2.

Defendant 1’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts or misapprehension of legal principles

Defendant 1 received money from Nonindicted 1 on February 2012 to the effect that KRW 5 million among KRW 15 million, which he received from Nonindicted 1, 2012, was delivered to another person. As such, he/she would not receive money. As such, he/she returned KRW 5 million to Nonindicted 3 as an intention to return to Nonindicted 2, and around December 10, 2012, he/she returned KRW 35 million among KRW 100 million received from Nonindicted 4 to Nonindicted 2 as an intention to return to Nonindicted 5, and thus, the crime of bribery is not established for KRW 5 million and KRW 35 million.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 1 (the imprisonment of six years, the fine of 130 million won) is too unreasonable.

B. Public Prosecutor (Defendant 2)

The punishment sentenced by the court below to Defendant 2 (the imprisonment of 4 years of probation, the fine of 30 million won in June) is too uneased and unfair.

2. Determination

A. Part concerning Defendant 1’s assertion of mistake or misapprehension of legal principles

In this regard, Defendant 1 asserted the same purport in the original judgment, and the lower court rejected the above assertion on the grounds as stated in the column of “judgment on Defendant 1 and his defense counsel’s assertion” among the original judgment. Examining the judgment of the lower court in comparison with the records, the lower court’s judgment is just and acceptable, and it does not seem that there was an error of mistake of facts or of misunderstanding of legal principles as alleged by Defendant 1, and thus, this part of the allegation by Defendant 1 is without merit.

B. Defendant 1’s assertion of unreasonable sentencing

In light of the overall sentencing conditions (in particular, the imprisonment with labor imposed by the court below on Defendant 1 is less than seven years, which is the lower limit of the sentencing guidelines) as shown in the proceedings of this case, including the various circumstances described by the court below in the column of “the reasons for the sentencing” of the court below, it cannot be deemed unfair because the sentence imposed by the court below on Defendant 1 is too unreasonable. Thus, this part of the defendant 1’s assertion is without merit.

C. Prosecutor’s assertion of unreasonable sentencing

The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) committed by Defendant 2, considering that Defendant 2, as the president of the ○○○ branch of the Do government-managed enterprise, Defendant 2, who is responsible for performing his duties in a clean and fair manner as the president of the Do government-managed enterprise, has considerably damaged the social trust in the integrity and fairness of the performance of duties of public corporation officers and employees by accepting a bribe from Nonindicted Company 2, a contractor of the construction ordered by the Do government-funded branch of the Do government-managed enterprise, and thereby has seriously damaged the public corporation’s integrity and fairness in the performance of duties. Furthermore, considering the fact that the amount of bribe received by Defendant 2 reaches KRW 30 million, Defendant 2, including the aforementioned reasons indicated in the “contincing grounds” column in the judgment of the court below, Defendant 2’s imprisonment with prison labor, which is inevitable, should be considered as Defendant 2’s imprisonment with prison labor, and thus, Defendant 2’s imprisonment with prison labor.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, pursuant to Article 364 (6) of the Criminal Procedure Act, the part against the defendant 2 among the judgment below is reversed, and it is decided again after the pleading as follows. Since the defendant 1's appeal is without merit, it is dismissed and it is decided as per Disposition.

The summary of the facts constituting an offense and the evidence acknowledged by this court is identical to the statement in each corresponding column of the part against Defendant 2 among the judgment below, and thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

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

Article 2(1)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 129(1) and 30 of the Criminal Act; Article 4(1) and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 2 subparag. 16 and Article 3 subparag. 1 of the Enforcement Decree of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Imposition of fines concurrently;

Article 2(2) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

Judge Kim Ho-ho (Presiding Judge)