Defendant 1 and three others

Defendants

Kim Jong-mun

Law Firm International Law Firm, Attorneys Han Won-woo et al.

Busan District Court Decision 2008Gohap493 Decided December 9, 2008

Of the judgment of the court below, the collection portion against Defendant 2 shall be reversed.

1.20,000,000 won shall be additionally collected from Defendant 2.

All appeals against the remainder except for Defendant 1, 3, and 4 and the additional collection by Defendant 2 are dismissed.

1. Summary of grounds for appeal;

(a) misunderstanding of facts (defendant 1, 2, and 3);

The above Defendants did not receive money in return for the illegal solicitation from Defendant 4, as stated in the facts charged.

B. Legal principles

(1) Although Defendant 1, 2, and 3 received money and valuables in relation to the above-mentioned election, the crime of taking property in breach of trust is not established (Defendant 1, 2, and 3).

(2) Even if Defendant 4 asked to support the election of the president of the Korea Freight Trucking Services Federation and provided KRW 100 million to Nonindicted Party 1 (Nonindicted Party 1 in the judgment of the Supreme Court), Defendant 1’s wife, was acquitted, on the ground that there was no evidence that the said money was delivered to Defendant 1, the lower court found Defendant 4 guilty by changing this part of the facts charged in this part of the facts charged that “The shopping bags containing KRW 100 million in cash was delivered to the president’s room and delivered KRW 100 million to Defendant 1 by means of leaving the shopping bags containing KRW 100 million in cash to the president’s room.” The above wife is not only contrary to the principle of presumption of innocence, but also constitutes an illegality that recognized a crime different from the facts charged in the indictment without changing the indictment (Defendant 1).

C. Unreasonable sentencing (Defendant 1, 3, and 4)

The sentence imposed by the court below on the above Defendants (Defendant 1: imprisonment of one year and six months, three years of suspended sentence, three years of additional collection, 100 million won, 6 months of suspended sentence, one year of suspended sentence, 50 million won additional collection, 1 year of suspended sentence, 4 years of suspended sentence, 2 years of suspended sentence, 10 million won of additional collection) are too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

(1) The evidence of the crime of breach of trust of this case is evidence of the defendant 4 and his employees, and the statements of the non-indicted 2 and 3, who are his employees. However, there is no objective physical evidence (the evidence record No. 359 was prepared by reference to the contents of the deposit passbook at the time when the investigation of this case was in progress, and there is no objective physical evidence because the non-indicted 3 was merely made by reference to his memory and the contents of the deposit passbook based on the above defendant's statement. The non-indicted 2 and 3 were employees of the above defendant, and their statements were not directly observed, so it cannot be viewed as a conclusive evidence.

Ultimately, the final and conclusive evidence to determine whether the above defendant was in breach of trust or not can be deemed as the above defendant's statement in the court below and the investigative agency's statement. Accordingly, the following should be seen as to the credibility of the above defendant's statement.

(2) In a case where the issue is whether to receive or receive money is the issue, the Defendant’s statement that was designated as the recipient of the money denies the receipt of the money, and there is no objective evidence such as financial data to support this, the admissibility of evidence is required, and there is credibility to exclude a reasonable doubt. In determining credibility, it is also necessary to also examine whether there is a relationship between the credibility of the statement itself as well as its own rationality, objective reasonableness, consistency before and after the statement, and its human beings, in particular, if there is a suspicion of a crime committed against him, and there is a possibility that the investigation may be initiated, or there is a possibility that the investigation may be conducted, in the event the admissibility of the statement is not denied, and there is a possibility that the statement would affect the statement to escape from the imminent wife due to intimidation or revolving, etc. (Supreme Court Decision 2008Do81377 Decided January 15, 209).

(3) Comprehensively taking account of the evidence duly admitted and examined by the lower court, the following facts can be recognized.

A person who has the right to vote in the election of the president of the Korea Freight Trucking Services Federation is merely 16 or 18 persons, such as the president of the Federation and the president of each region, and if he purchases a small number of eligible voters, he/she is in a structure with a high possibility of election, and if he/she is elected as the president, he/she can use the sales cost of 20 million won per month, and a large number of trucking transport business operators want to become the president of the Federation.

(C) In fact, there are frequent cases of giving and receiving money in return for support whenever the president of the above federation is elected, and thus, it could be recognized that the long-term practices are similar to old practices, and in addition to this case, several criminal trials or preliminary injunction proceedings against suspension of execution of duties are finalized or pending.

Around May 9, 2006, Defendant 1 and Defendant 4 promised to give up the horse racing to the president of the Korea Trucking Transport Association at the request of Defendant 4 and to assist Defendant 4 in making his best in winning the election. After Defendant 4 was elected, Defendant 4 promised to give two executive directors of the Korea Trucking Transport Association to Defendant 1, and to post Defendant 1 to the vice-president of the Korea Trucking Transport Association, and provided that Defendant 4 shall compensate for KRW 300 million to Defendant 1 within three months from the above-mentioned day.

Defendant 4 asserted that he did so at the special election on February 7, 2007, and he dumpeded the so-called "written incentive" at the general meeting of the Federation on March 13, 2007, and he dumpeded the so-called "written incentive" to Defendant 1 et al., and the assertion was made against the newspaper engineer.

On January 7, 2008, Defendant 4 filed a complaint with Defendant 1, 2, and 3 on the charge of acquiring money by deceiving himself even though he did not have any intent or ability to undermine the support and solicitation, and attached the content-certified mail on October 13, 2007, which includes the above contents in the complaint.

㉳ 고소 이후 피고인 4는 여러 차례에 걸쳐 수사기관에서 진술을 하였고, 원심 법정에서도 진술을 하였는데, 수뢰자들의 금품 요구시점(또는 피고인 4의 금품제공 공세에 응한 시점)이나 장소, 현금을 담은 쇼핑백의 재질과 개수, 현금 포장방법 등에서 세부적으로 진술이 번복되거나 불분명하고, 공소외 2, 3의 진술과 일치하지 않았지만, 자신의 구속 등 수사 및 재판 진행 경과와 관계없이 일관되게 공소사실 기재와 같이 피고인 1, 2, 3에게 현금을 공여하였다고 진술하였고, 공여된 현금의 조성 내역을 밝히는 통장사본, 금융거래확인서 등을 수사기관에 제출하기도 하였다.

㉴ 피고인 4는 비록 초등학교 졸업이지만 자수성가하여 그의 화물자동차 운수사업은 비교적 번창하였고, 상당수의 전과도 사업과정에서 발생한 것으로 보인다.

(4) According to the above facts, Defendant 4’s statement may be evaluated as having the reasonableness, objective reasonableness, consistency before and after the following: (a) it is difficult to view that the above Defendant 4’s statement is likely to be subject to criminal punishment in a situation where the investigation is not initiated in view of Defendant 4’s social and economic status, career, etc., and only Defendant 1, 2, 3, etc. were able to pressure or punish Defendant 1, 2, and 3 with the intent to force or punish him/her; and (b) it is difficult to deem that Defendant 4 continued to maintain the subsequent statement.

(5) Ultimately, Defendant 4’s statement in the court and the investigative investigator’s statement are deemed to have credibility enough to exclude a reasonable doubt, and the court below found Defendant 1, 2, and 3 guilty of Defendant 1, 2, and it is just in the court below which found Defendant 1 guilty, and the above Defendants’ assertion of this part of the allegation is without merit.

B. As to the misapprehension of legal principles

(1) The court below rejected the defendants' assertion in the judgment that "the defendants 1, 2, 3, and co-defendant 4's assertion that the defendant's business is not another person's business," and that the above defendants' assertion, relevant legal principles, and evidence are separate agencies from the general assembly of the Korean Cargo Association as a business execution institution of each regional cargo association, and that the above defendants' exercise of voting rights in the general assembly of the Korean Cargo Association on behalf of each regional cargo association which is a member of the Korean Cargo Association shall be deemed to exercise voting rights in accordance with the articles of association, election management regulations, and the articles of association of the Korean Cargo Association, etc., and that this constitutes the representative of each regional cargo association or the representative thereof. In light of the records of the evidence of this case, the court below rejected the above defendants' assertion in the judgment of the court below on the basis of the above legal principles and the determination of evidence, and there is no other evidence supporting the above judgment, and there is no reason to believe that the above judgment is legitimate.

(2) According to Defendant 4’s statement in the court below, Defendant 4 made from time to time a telephone conversation with Defendant 1 in relation to the election of the chairman, and Defendant 4, with Defendant 1’s intent to offer cash to Defendant 1, stated that Defendant 1’s wife Nonindicted 1, who was in the office, left the shopping bags containing KRW 100 million in cash on Defendant 1’s office side floor of the president’s office with Defendant 1’s non-indicted 4 limited liability company, and notified Defendant 1 that he would have brought about a telephone to the office. Accordingly, this conforms to the empirical rule to deem that the shopping bags containing KRW 100 million in cash, was delivered to Defendant 1.

In addition, even though the court below acknowledged the criminal facts by changing the facts charged in this part of the facts charged that "the shopping bags containing KRW 100 million in cash were delivered to Defendant 1 by keeping them in the president's room and by delivering them to Defendant 1 by means of leaving them in the president's room," it can be said that the amount of involvement in all the facts charged or the modified criminal facts is different, but it can be said that the shopping bags containing KRW 100 million in cash was delivered to Defendant 1 under the involvement of Nonindicted 1, and that the purport of the above facts charged is that the shopping bags containing KRW 100 million in cash were delivered to Defendant 1. Thus, the above action of the court below is within the scope recognized as identical to the facts charged, and it cannot be said that there is a concern over substantial disadvantage in Defendant

Therefore, this part of the defendant's assertion is without merit.

C. Regarding the assertion of unreasonable sentencing

The lower court, under the title of “reasons for both punishment”, determined the punishment for Defendant 1, 3, and 4 by taking into account the various sentencing factors, such as the written reasoning.

In full view of the motive, means and result of the instant crime, the age, character and conduct, intelligence and environment of the said Defendants, criminal records, circumstances after the crime, etc., the sentence (including additional collection charges) imposed by the lower court on the said Defendants is deemed to be all appropriate, and it cannot be deemed to be unfair. Thus, there is no reason for the said Defendants’ assertion of unfair sentencing, and there is no ground for ex officio judgment affecting the lower court’s decision due to unfair sentencing against Defendant 2 except for additional collection. (The defense counsel of Defendant 2 asserted unfair sentencing not included in the statement of grounds for appeal on the second trial date, but this cannot be a legitimate ground for appeal).

D. Ex officio determination

Defendant 2’s defense counsel claimed excessive amount of collection not included in the statement of grounds of appeal on the second trial date of the trial at the trial of the court below, but in full view of the evidence duly admitted and investigated by the court below, it can be acknowledged that Defendant 2 received cash of KRW 90 million from Defendant 4 at the end of December 2006 and returned the above Defendant around January 2007. In light of the time of return, it is reasonable to view that the amount of KRW 30 million returned by Defendant 2 was received from Defendant 4, and there is no other evidence to deem otherwise, the returned KRW 30 million should be excluded from the amount of additional collection against Defendant 2.

Therefore, the judgment of the court below ordering additional collection of KRW 150 million from the above defendant is erroneous by misapprehending the facts or by misapprehending the legal principles on additional collection, which affected the conclusion of the judgment.

3. Conclusion

Therefore, among the judgment below, the portion of the additional collection against Defendant 2 is reversed pursuant to Article 364(2) of the Criminal Act, and pursuant to Article 357(3) and Article 357(1) of the Criminal Act, the additional collection of KRW 120 million is collected from the above Defendant pursuant to Article 357(3) and Article 357(1) of the Criminal Act, and there is no reason to file an appeal on the remainder except for Defendant 1, 3, and 4’s appeal and additional collection. Thus, all of these appeals are dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and “60 million won” as stated in Article 364(4) of the judgment of the court below’s first-A of the judgment of the court below is “20 million won [1-dong 1-dong 1-dong 2000,0000,000 from the above Defendant’s above Defendant 1’s non-indicted 4 company” (the above correction may not be made ex officio pursuant to Article 25 of the Criminal Procedure Rules).

Judges Lee Jung-chul (Presiding Judge)