The scope of forfeiture where illegal gains are individually distributed among co-defendants of violation of the Attorney-at-Law Act;

The purpose of necessary confiscation or collection under Article 82 of the former Attorney-at-Law Act (amended by Act No. 4544 of Mar. 10, 1993) is to deprive a criminal or a third party of money and valuables or other benefits and prevent him from possessing unlawful profits. Thus, in case where several persons jointly distribute money and valuables received under the pretext of solicitation in connection with a case or affairs handled by a public official, only the money and valuables actually received from each person shall be individually confiscated or collected additionally, and where part of the money and valuables received under the pretext of solicitation is given to a public official as a bribe in relation to solicitation in accordance with the purport of actually receiving the money and valuables, even if the money and valuables actually received under the pretext of solicitation, the profit of the part shall not be attributed to the defendant, and thus, only the money and valuables

Article 82 of the former Attorney-at-Law Act (amended by Act No. 4544 of March 10, 1993)

[Plaintiff-Appellee] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellee)

Defendant

Defendant

Gwangju District Court Decision 93No232 delivered on May 7, 1993

Each of the judgment of the court below and the judgment of the court of first instance shall be reversed.

10,000,000 won shall be additionally collected from the defendant.

The defendant's remaining appeals are dismissed.

1. Judgment on the Defendant’s ground of appeal No. 1

If the evidence employed by the court of first instance examined by comparing it with the records, it can be sufficiently recognized that the defendant jointly with the co-defendant 1 of the first instance court and received a total of KRW 60,000,000 in the name of receiving a tax official's request for the reduction of capital gains tax to be imposed on him, and it cannot be deemed that there was an error of misconception of facts in violation of the rules of evidence, such as the theory of lawsuit, and therefore there is no reason to discuss.

2. Determination on the ground of appeal No. 2

The purpose of necessary confiscation or collection under Article 82 of the former Attorney-at-Law Act (amended by Act No. 4544 of Mar. 10, 1993) is to deprive a criminal or a third party of money and valuables or other benefits and prevent him from holding unlawful profits. Thus, in case where several persons jointly distribute money and valuables received under the pretext of solicitation in connection with cases or affairs handled by a public official, only the money and valuables actually received from each person shall be individually confiscated or collected additionally, and the value of the money and valuables should be collected separately (Supreme Court Decision 72Do1791 of Nov. 26, 1974; Supreme Court Decision 75Do782 of Nov. 25, 197; Supreme Court Decision 77Do1540 of Aug. 23, 197; Supreme Court Decision 82Do1310 of Jul. 27, 1982).

According to relevant evidence and records, the defendant and the joint defendant of the first instance trial jointly offered 30,000,000 won out of the above 60,000,000 won which were received from the non-indicted 1 as a bribe related to the above solicitation to the non-indicted 2, who is a public official in charge of the revenue and expenditure duty, and the remaining 30,000,000 won can be recognized as a bribe related to the above solicitation, and the defendant distributed 10,000,000 won and consumed 20,000,000 won by the co-defendant of the first instance trial. Thus, in this case, the amount to be collected from the defendant is limited to 10,00,000 won.

Nevertheless, the court below dismissed the defendant's appeal against the judgment of the court of first instance that collected a sum of KRW 30,000,000,000 from the defendant and the co-defendants of the court of first instance who first received 60,000 from the non-indicted 1. Thus, the court below erred by misapprehending the legal principles on additional collection under Article 82 of the former Attorney-at-Law Act, and it is obvious that such illegality affected the conclusion of the judgment. Thus, there is a reason to point out this error, and the part concerning additional collection among the judgment of the court of first instance concerning additional collection cannot be reversed.

3. Therefore, according to Articles 391 and 396(1) of the Criminal Procedure Act, each part of the judgment of the court below and the judgment of the court of first instance concerning additional collection shall be reversed, and since the defendant cannot confiscate 10,00,000 won out of the remaining money and valuables distributed as a bribe to the relevant public officials, the equivalent amount shall be additionally collected in accordance with the proviso of Article 82 of the former Attorney-at-Law Act. Since the remaining grounds for appeal by the defendant are without merit, it shall be dismissed in accordance with Articles 399 and 364(4) of the Criminal Procedure Act. It is so decided as per Disposition

Justices Ahn Yong-sik (Presiding Justice)