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The judgment below
Of the above, the part of collection against Defendant B shall be reversed.
Defendant
B 74,301,200 won shall be collected.
Reasons
1. Summary of grounds for appeal;
A. In accordance with the purport of receiving money and valuables, Defendant B, by misapprehending the legal principles, offered 26 million won as a bribe to Defendant A who is a related public official, among money and valuables received as a broker for matters pertaining to public official’s duties. The above 26 million won is not in fact reverted to Defendant B, and thus, it cannot be collected from Defendant B.
2) The sentence of the lower court’s unfair sentencing (two years of imprisonment, three years of suspended execution, etc.) is too unreasonable.
B. The Prosecutor’s sentence (Defendant A: 2 years and 6 months of imprisonment, 4 years of suspended execution, etc., Defendant B: the same applies to the above) of the lower court is too unhued and unreasonable.
2. Determination
A. The purpose of confiscation or collection under Article 116 of the Act is to deprive a criminal who has acquired money or other valuables or other benefits or to prevent them from holding unjust profits. Thus, in a case where the public official received money or other valuables in connection with solicitation or delivered them to another intermediary in accordance with the purport of receiving part of the money or other valuables, the benefits of the part is not actually attributable to the criminal, and thus, the remaining money or valuables should be confiscated or collected additionally (see Supreme Court Decisions 93Do1569 delivered on December 28, 1993; 9Do1900 delivered on June 25, 199, etc.). According to the above legal principle, the health expenses for this case, according to the evidence duly adopted and investigated by the court below, Defendant B cannot be acknowledged as having received money or other valuables from the supplier as a public official, and the above facts can be acknowledged as having been delivered to Defendant A under the purport of the above Act.