Defendant

Prosecutor

Pursuant to the reasoning of the judgment of the court below, the court below erred by misapprehending the legal principles of good faith and failing to exhaust all necessary deliberations and failing to exhaust all necessary deliberations.

Attorneys Han-ra et al.

Seoul Central District Court Decision 2018Gohap20 Decided July 20, 2018

The guilty part of the lower judgment and the part of the acquittal on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss on National Treasury, etc.) relating to KRW 200 million delivered on or around September 2016 shall be reversed.

A defendant shall be punished by imprisonment for five years.

2.7 billion won shall be additionally collected from the defendant.

To order the defendant to pay an amount equivalent to the above additional collection charge.

Of the facts charged in the instant case, the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss on National Treasury, etc.) regarding KRW 200 million delivered around September 2016, which is the primary and ancillary facts charged, shall be acquitted.

The prosecutor's appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) among the acquittal portion of the judgment of the court below is dismissed.

The summary of the acquittal part in this judgment shall be publicly notified.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes related to Nonindicted 1, 2, and 3 (hereinafter “Aggravated Punishment of Specific Crimes Act”)

1) Job relationship and consideration relation in the comprehensive bribery

The Supreme Court affirmed the establishment of the crime of bribery where it is recognized that the grant of money to the President is in a quid pro quo relationship with the President’s duties as a whole and in a comprehensive manner, thereby establishing the so-called comprehensive crime of bribery, which is not stipulated in the Criminal Act, and applied the above legal doctrine as it is to the act of bribery by a member of the National Assembly. In other words, if money and valuables were provided on the comprehensive and limited authority of the President, the specific act of performing duties is deemed as a quid pro quo relationship even if the specific act of duties is not specified, and the money and valuables provided to the President, in fact, has the substance of the quid pro quo for the act of “port”, and there is no room for recognition of government funds and political funds, etc. to assist the President in the pure intent of performing the State affairs. Nevertheless, the lower court determined to the effect that the money and valuables are

2) Improperity of the lower judgment on business relationship

In light of the Constitution, the Government Organization Act, the National Intelligence Service Act, etc., has legal authority and authority to direct and supervise the NIS employees in accordance with the duties of the President, and this is a realistic and specific task rather than a general and abstract duty, and so long as the authority to direct and supervise the NIS employees belongs to the duties of the President, the crime of offering of bribe is established if the president grants money and valuables (the contents of the duties of the President and the relationship with the president of the State). It is difficult to view that Nonindicted 1, 2, and 3, who were the president of the State, had special relationship with the Defendant regarding the performance of the duties of the president, have no special relationship with the Defendant, and thus, it is difficult to view that the payment of the special project cost was delivered according to the need of the president (whether there is a special relationship with the president of the State affair, which is an extraordinary method of delivery of the NIS employees’s funds, and thus, there is no doubt that it is unlawful for the president to provide the president with the special project cost for the NIS employees’s general or the president’s comprehensive performance of the State affair.

3) Improperity of the judgment of the court below on the recognition of business relationship

In light of the statement of Nonindicted 1, Nonindicted 2, and Nonindicted 3 and other employees of the NIS, the payment of the special project cost by Nonindicted 1, Nonindicted 2, and Nonindicted 3 was accompanied by the expectation to provide comprehensive convenience to the NIS or at least the expectation that the Defendant would not give any disadvantage to the NIS or the president of the NIS, and thus, Nonindicted 1, Nonindicted 2, and Nonindicted 3 had the awareness of the relationship with the duties of the offering of the offering of the bribe and the relation of the consideration for the payment was sufficiently recognized. Nevertheless, the lower court determined that Nonindicted 1, Nonindicted 2, and Nonindicted 3 had the intention to provide the budget to the NIS, and that there was no awareness of the consideration or benefits arising from the provision of the special project cost. In so doing, the lower court erred by misapprehending the legal doctrine on the perception of the acceptance of the bribe and the person who provided the offering of the bribe as to the relation with the duties of the bribe, and by misapprehending the legal doctrine.

4) The illegality of the judgment of the court below on the establishment of the crime of acceptance of bribe against the accomplice in the crime of violation of the Specific Crimes Aggravated Punishment Act (State treasury loss

Since the crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) and the crime of offering of a bribe and the crime of acceptance of a bribe are different legal interests, the crime of violation of the Specific Crimes Aggravated Punishment Act cannot be deemed as not establishing the crime of acceptance of bribe merely on the ground that the crime of violation of the Specific Crimes Aggravated Punishment Act (loss to National Treasury, etc.) is an accomplice, and as long as there was no mutual agreement between the non-indicted 1, 2, and 3 and the defendant on the grant of the special project expense, the payment of the said special project expense cannot be evaluated as an internal distribution of profits among the accomplices. Nevertheless, the lower court determined that the special project expense granted to the defendant by the non-indicted 1, 2, and 3 is nothing more than the result attributable to the accomplice of the crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.). Accordingly, the lower court erred by misapprehending the legal principles on the crime of violation of the Aggravated Punishment

B. misunderstanding of facts and misapprehension of legal principles as to the violation of the Specific Crimes Aggravated Punishment Act (Bribery) with respect to Nonindicted 8

1) Job relationship and consideration relation in the comprehensive bribery

The Prosecutor asserts that this part of the appeal is the same as the above-mentioned No. 1-A, 1.

2) Improperity of the lower judgment on business relationship

In light of the fact that the chief secretary assisting the President is in a position to exercise de facto influence over the organization, personnel, and overall operation of the NIS under the order of the President, and that the chief secretary received large amounts of KRW 50 million per month by the President, and cannot be deemed as a consideration for personal friendship, it appears that Nonindicted 3 was in profit to obtain from Nonindicted 8, such as personnel hearings of the president, inspection of state administration of the NIS, and compilation of the budget of the NIS, and the fact that Nonindicted 3 delivered part of the budget to the chief secretary assisting the President, it is sufficient to doubt the fairness of the chief secretary’s execution of duties. In light of the fact that the special project cost, which Nonindicted 8 received from Nonindicted 3, was paid in consideration of Nonindicted 8’s duties. Nevertheless, the lower court erred by misapprehending the legal doctrine on the relationship between the duty performance and the compensation for the crime of acceptance of bribe, and by misapprehending the legal doctrine.

3) The illegality of the judgment of the court below as to the conspiracy relation between the Defendant and Nonindicted 8

The delivery of the special project cost by Nonindicted 3 to Nonindicted 8 is subject to the Defendant’s demand for funding, and Nonindicted 8, while recognizing these circumstances, strengthens the execution of the special project by using the Defendant’s influence and position, thereby strengthening the Defendant’s intent in a successive and implicit manner. Moreover, the reason why the grant of the special project cost was suspended was the final decision of the Defendant following Nonindicted 8’s recommendation, and Nonindicted 8 delivered the Defendant the remainder of the special project cost that he used. In full view of the status, role, and power of the Defendant’s occupation in the whole crime, the Defendant can be recognized to have committed the crime through a functional control. Nevertheless, the lower court determined that the special project cost delivered by Nonindicted 8 was in a passive position, and thus there was no public offering relationship between the Defendant and Nonindicted 8. In so doing, the lower court erred by misapprehending the legal doctrine on the public offering relationship and misapprehending the legal doctrine.

C. misunderstanding of facts as to the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding KRW 200 million, which was delivered by Nonindicted 3 around September 2016, and misapprehending of legal principles

1) In light of the fact that the Defendant received funds from the NIS upon the Defendant’s request for a more than three years and received funds from the NIS for more than three years, and around September 2016, the Defendant directly received KRW 200 million, the Defendant received funds from the NIS through Nonindicted 4 and Nonindicted 7, who is an accomplice, and the Defendant committed this part of the crime, and the Defendant used the funds by delivery of KRW 200 million as encouragement money, etc., and the Defendant ultimately committed a violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), the Defendant shall also bear the responsibility for the crime of National Treasury loss of KRW 200 million.

2) Even if the Defendant’s functional control is not recognized, the Defendant’s crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) was completed by using KRW 200 million upon delivery, in light of the fact that Nonindicted 4 and Nonindicted 7, who received the Defendant’s comprehensive instruction in the process, committed Nonindicted 3’s crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), and that the Defendant, who received the above KRW 200 million directly and used the above KRW 200 million for purposes other than the scope of the NIS’s duty, is also recognized, the Defendant is held liable for aiding and abetting the Defendant as a crime

3) Nevertheless, the lower court found the Defendant not guilty of this part of the facts charged and did not recognize the liability as an aiding and abetting offender, and erred by misapprehending the legal doctrine.

D. misunderstanding of legal principles as to collection

As seen above, since the crime of violation of the Specific Crimes Aggravated Punishment Act (Bribery) is all established against the defendant, Article 134 of the Criminal Act shall apply and the collection of the entire amount of acceptance of bribe shall be sentenced.

E. Unreasonable sentencing

The punishment sentenced by the court below (six years of imprisonment) is too unhued and unfair.

2. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Judgment on the misconception of facts and misapprehension of legal principles as to the violation of the Specific Crimes Aggravated Punishment Act (Bribery) with respect to Nonindicted 1, 2, and 3

1) Summary of this part of the facts charged

A) The Defendant received a bribe of KRW 600 million totaling KRW 50 million from Nonindicted 1 to April 2014 every 12 times from May 2013 to April 2014, as stated in the facts constituting the crime No. 1 of the lower judgment as indicated in the lower judgment.

B) The Defendant received a bribe of KRW 800 million in total amount of eight hundred million per month from July 2014 to February 2015, as indicated in Article 1-b of the facts constituting an offense in the lower judgment.

C) The Defendant received a bribe of KRW 1.9 billion in total from Nonindicted 3 19 billion each month from March 2015 to July 2016, as stated in the crime No. 1-C of the lower judgment.

D) On September 2016, the Defendant received a bribe of KRW 200 million from Nonindicted 3.

2) Summary of the judgment of the court below

In full view of the following circumstances, the lower court determined that the evidence presented by the prosecutor alone is insufficient to deem that the Defendant was proven without reasonable doubt that the special project cost, which the Defendant received from Nonindicted 1, 2, and 3, was paid in consideration of the Defendant’s duties, and that there was no other evidence to acknowledge it.

A) Details of the presidential duties and the relationship with Nonindicted 1, 2, and 3, the president of the NIS

According to the statements of the relevant Acts and subordinate statutes, while the president and the president are closely related to the duties of the president and the president, the close relationship between the president and the president is a natural consequence according to the authority and duties prescribed by the Acts and subordinate statutes. Thus, even if the money and valuables were to take place between the president and the president, it cannot be readily concluded that the amount of money and valuables is directly related to the President’s duties or are paid for his duties, and it should be determined by taking into account various circumstances, such as the circumstances leading up to the provision of money and valuables, and the intention between the parties. On the other hand, the president has the legal and de facto strong authority and influence over the NIS, and the NIS is also related to the performance of duties under the direction and supervision of the President for the purpose of national security as a subordinate organization of the president, and thus, it is difficult for the president to refuse the presidential’s instruction and request, barring any special circumstances. Therefore, in the event that money and valuables were given upon the president’s instruction or request, it is necessary to recognize the duty relationship or consideration immediately after considering the objective duty relationship between the president and the president.

B) The process of disbursement of the special project cost by the Director of the NIS

(1) Nonindicted 1 appears to have been paid special project costs in response to the demand or instruction of the Defendant or at least that there was such demand or instruction. Nonindicted 2 and Nonindicted 3 seem to have been paid special project costs in response to the demand or instruction of the Defendant that had been previously maintained.

D. Meanwhile, Nonindicted 2’s monthly increase of KRW 100,000 from KRW 50,00 to KRW 100,000 is determined in consideration of Nonindicted 9’s request, which is the representative body of the so-called pro-fetial power, and thus, it is difficult to view that the circumstance or characteristic of the payment of special project costs has changed fundamentally solely on the ground that the said increase was made in KRW 100,00. In addition, Nonindicted 3’s order to suspend the Defendant’s financial assistance on or around August 2016, upon receiving a report from Nonindicted 5 on the purport that the Defendant’s financial assistance was suspended, and it appears to have re-paid the special project cost by understanding that the Defendant’s financial demand was made, and thus, it is difficult to view that the said KRW 200,000 has been paid KRW 10,000 per month in the previous month.

Referencely, even before Nonindicted 1, 2, and 3 delivered the instant special project cost, Nonindicted 3 appears to have been a practice of delivering the NIS funds from the NIS to the NIS. At least, the perception of the previous practice is likely to have an impact on the delivery of the Defendant’s request or instruction without particular rejection or awareness.

In addition, the special project cost that Nonindicted 1, 2, and 3 paid upon the Defendant’s instruction is an embezzlement and an embezzlement act is deemed to have been performed in collusion with the Defendant. As such, there is considerable room to view that the special project cost that was paid to the Defendant by embezzlement is merely the fact that the embezzlement belongs to the co-offenders of the National Treasury loss crime.

C) The perception and intent of the Defendant and the Director of the NIS

Nonindicted 1 appears to have been paid special project costs by hearing the statement that part of the budget of the NIS is included in the special project cost of the NIS in the course of preparing the personnel hearing of the NIS, and by the intention of returning it to the NIS after receiving the request from Nonindicted 4. Nonindicted 2 and Nonindicted 3 also seem to have been paid the special project cost with the intention of supporting the budget in accordance with the Defendant’s request or instruction that was previously maintained from the previous year. In addition, in light of the organization of the NIS and the relationship of duties with the President, etc., it appears sufficient for Nonindicted 1, 2, and 3, the president of the NIS, who is the direct subordinate agency assisting the Defendant, to have been paid the special project cost with the intention of subsidizing the budget from the perspective of the direct subordinate agency assisting the Defendant who is the President, the possibility that Nonindicted 1, 2, and 3, the president of the NIS, would have been paid the special project cost, and there is no material to deem that Nonindicted 1, 2, and 3 paid any specific consideration or benefits from the

D) Method of delivery of special project costs

The Defendant ordered Nonindicted 4 and Nonindicted 6 to receive money from the NIS. The president of the NIS instructed Nonindicted 10, Nonindicted 11, and Nonindicted 5, the sender, to take part of the special project cost for the NIS, and did not instruct or receive a report on a specific method of delivery. Although the special project cost was delivered closely, the delivery of the funds to the NIS would be a problem if it is known that the funds of the NIS would be delivered to the NIS or to an external institution, and it does not seem that the delivery of unjust money would have been considered.

E) the timing and amount of the special project cost.

On a monthly basis, the president of the NIS paid KRW 50 million or KRW 100 million on a mechanical and regular basis for a long period of time. The regular payment of the special project cost for such long period is considerably different compared to the ordinary payment method of the bribe that requires considerable secrecy. Around September 2015 and around January 2016, additional KRW 100 million was paid in addition to KRW 100,000,000 that was paid every month, but this is consistent with the position and theory, and it seems that additional funds were paid with the intent to support the budget of the NIS as in the previous case.

F) Whether there was a benefit to obtain by the Director of the NIS, the issuing person

In addition, it is difficult to understand that the president of the NIS would be able to perform his/her duties or provide various conveniences on the pending issues by offering money and valuables to the President. Moreover, it is somewhat vague or abstract, and it is difficult to obtain the motive for the offering of a bribe in reality. Meanwhile, it appears that Nonindicted Party 1, after being appointed as the president of the NIS, had some pending issues related to the NIS’s request for the reform of the NIS, such as “the case involving the statement of the fixed number of the NIS,” “NL conversation Disclosure case,” and “the Seoul City Public Officials Spy Case,” but it is not deemed that the special project cost is not granted due to such pending issues. Moreover, since these pending issues are considered to have been important issues not only to the NIS but also to the NIS itself, it is difficult to view that it is a special project cost for delivery, such as ascertaining the trend of the National Assembly in relation to the affairs of the NIS and the consideration, and delivering the opinions of the NIS and its representative to the party.

G) Whether there is room for doubt as to the fairness of the execution of duties by the President

Nonindicted 1, 2, and 3, the president of the NIS, takes charge of the role of assisting the president as a subordinate agency to the direct control of the president, and as a president under the direction and supervision of the president, the performance of duties according to the president’s direction. Therefore, it is difficult to readily conclude that the fact that the president of the NIS delivers part of the president’s budget to the president is doubtful of fairness in the performance of duties against the president or the president. In detail, it is difficult to deem that there was any circumstance to suspect the fairness in the performance of duties.

H) Regarding the use of the special project cost delivered by the Defendant

Unlike whether the Defendant used part of the special project cost delivered by the president of the NIS for private purposes, there is no evidence to deem that the president of the NIS knew or accepted that the Defendant would use the special project cost delivered by him for private purposes. The prosecutor’s assertion that the Defendant used the special project cost for private purposes is difficult to serve as the basis for determining the relevance to duties or the consideration for the delivery of the special project cost between the president of the NIS and the Defendant.

3) Judgment of this Court 1)

In light of the following facts and circumstances acknowledged by the court below based on the evidence duly admitted and investigated by the court below, the judgment of the court below is sufficiently acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor. Accordingly, the prosecutor's assertion on this part is not acceptable.

A) Job relationship and consideration relation with the so-called comprehensive bribery

(1) Article 129 of the Criminal Act provides that “The crime of acceptance of bribe as provided in Article 129 of the Criminal Act shall be the case where a public official receives a bribe in relation to his duties.” Thus, the contents or scope of his duties should be determined first in order to determine the relationship between the public official’s receipt of a bribe and his duties.” The lower court recognized the facts and circumstances as stated in its holding concerning the Presidential and the NIS’s duties, the relationship between Nonindicted 1, 2, and 3, etc. under the title “(1)” and the president’s duties, and the relationship between the two, etc., and determined that “the President and the NIS or the NIS are very closely related to their duties” (Article 50-52 of the lower judgment), even if there is a closely related relationship between the President and the NIS, such circumstance alone alone is insufficient to readily conclude that the receipt of a bribe by the President is directly related to the President’s duties or as a consideration for their duties, i.e., the circumstances indicated in the Supreme Court precedents, the delivery of money and valuables between the parties, and other circumstances.

D. The Prosecutor established the so-called comprehensive bribery which is not stipulated in the Criminal Act in relation to the presidential bribery, and applied this legal principle as it is to the member of the National Assembly. The court below cited the Supreme Court en banc Decision 96Do3377 delivered on April 17, 1997, and the Supreme Court Decision 97Do2609 delivered on December 26, 1997.

However, the above en banc decision states that "the brain is sufficient to have been granted or received in connection with the duties of the President, and there is no need to specify the act of performance of such duties." In addition, even if money was given or received under the pretext of political funds, election funds, or sexual gold, the nature of bribe shall not be lost as long as there is an substance in consideration of the act of performance of such duties." The decision of the court below held that the purpose of the money grant to the President was to exercise influence on the determination and execution of economic policies related to corporate management and the operation of finance and taxation, so long as the purport of the money grant to the President was to have been decided and executed so as not to have preferential treatment or at least disadvantage, it can be recognized that there was a quid pro quo pro quo pro quo pro quo pro quo relationship with the above President's duties, and that the above money cannot be seen as a quid pro quo pro quo pro quo relationship with the entire act of performance of duties of the National Assembly member."

B) Whether there exists a business relationship and a compensation relationship

(1) Non-Indicted 1 stated in the court below that "The budget organized in the National Assembly was executed by the Information Headquarters as it was executed by the Information Headquarters (No. 2. 511 of the trial record)," and Non-Indicted 2 stated in the prosecutor's office that "it is deemed that the budget was diverted to the budget (Evidence No. 5. 6532 of the record)," and stated in the court of the court below that "the court of the court of the court below stated that "it is a general common sense that the National Assembly would provide assistance from the National Assembly to the Office," (No. 2. 593 of the trial record), and Non-Indicted 3 stated in the court of the court below that "the President cannot be seen as a general person responsible for security, but it was executed in the trust that the funds provided to the defendant were used in the security or the operation of the State," and that "Non-Indicted 2 will not be considered to have provided the budget to the President for the State in advance (No. 280 million won of the trial record)."

The court below held that it is difficult for the Director to refuse the direction or request of the President, or that it is difficult to say that the crime of bribery is established, or that the delivery of money from the extension of existing practices to the President is excluded from the subject of judicial judgment by recognizing the President's governing act. However, the court below is merely a reference to some of such circumstances while considering whether there is a quid pro quo relationship with the funds provided to the defendant by the Director, and it is not excluded from the subject of judicial judgment based on the concept of governing act.

C) Whether the parties are aware of a bribe

(1) The president of the NIS granted the special project cost with the intention of supporting the budget to the Blue House. On the other hand, even if Nonindicted Party 2 paid the monthly amount of KRW 100 million, and Nonindicted Party 3 paid KRW 100 million in addition to the Tlue and Seo, it is difficult to view that there is a fundamental difference in the intention of supporting the budget to the Blue House in light of the circumstances stated by the lower court.

D. Nonindicted 3 stated in the court of the court below that “ Nonindicted 4 and Nonindicted 2, the delivery of 200 million won was suspended, and that Nonindicted 4 and Nonindicted 4, who were Nonindicted 4, stated that “it would have been difficult for the President to pay money,” and that “it would not have been directly requested by the President.” (No. 2, No. 726,727 of the public trial record), Nonindicted 5 stated in the court of the court of the court that “it would be one of Nonindicted 4 and that it would be difficult for the President,” and that they would have been delivered to Nonindicted 7, and that the place was delivered to Nonindicted 4, which was the same as that of Nonindicted 3, and that Nonindicted 4 and Nonindicted 3, which was delivered to Nonindicted 4, which had no special character of the trial record, were delivered to Nonindicted 5 and Nonindicted 4, which had no character of the trial record, and that Nonindicted 4 would not be deemed to have been delivered to Nonindicted 5 and Nonindicted 4, which would have been necessary for the Defendant’s statement to the effect that it would not be paid.

Article 12(1) of the Criminal Procedure Act provides that “The Defendant, at the court of first instance, submitted a written statement to the effect that the Defendant would have received support from the prescribed number of the State, and that the Defendant would have received support from the prescribed number of the State, and that the Defendant would have received support from the prescribed number of the State, and would have used it as expenses necessary for the business if there is no legal problem” (Article 1, 219, No. 4, No. 1984). In light of these written statements, the Defendant, who received the State Fund, did not seem to have considered that

Applicant There is no evidence that the president of the NIS knew or accepted that part of the special project cost delivered by the Defendant was used for private purposes. Rather, according to the respective statements of the president of the NIS Nonindicted 1, Nonindicted 2, and Nonindicted 3, these statements appear to have been trusted that the Defendant, the president of the NIS, would comprehensively use the special project cost for national security or at least use it as the budget of the Agency.

D) Whether the embezzlement is merely a distribution of the amount

Supreme Court Decision 2005Do7112 Decided October 12, 2007, which was invoked by the court below, held that in a case where a public official who enters into a negotiated contract enters into an agreement with a construction business operator to make a return of money, and then received money, whether such money is deemed a bribe and whether it is deemed an embezzlement or not should be objectively assessed and determined by comprehensively taking into account various circumstances as stated in its reasoning. In this regard, the Supreme Court denied the establishment of the crime of accepting property in breach of trust or violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (i.e., punishment of breach of trust or occupational breach of trust) separately from the crime of fraud or occupational breach of trust (see Supreme Court Decision 2013Do7201, Oct. 24, 2013; Supreme Court Decision 2015Do18795, May 24, 2016). Accordingly, the court below’s determination that the aforementioned special crime of embezzlement and embezzlement should not be applied to the defendant.

B. Determination of misconception of facts and misapprehension of legal principles as to the violation of the Specific Crimes Aggravated Punishment Act (Bribery) related to Nonindicted 8

1) Summary of this part of the facts charged

The Defendant, in collusion with Nonindicted 8, received a bribe of KRW 150 million in total from Nonindicted 3 three times every month from June 2016 to August 2016, in collusion with Nonindicted 3, as indicated in paragraph (2) of the facts constituting the crime indicated in the lower judgment.

2) Summary of the judgment of the court below

In full view of the following circumstances, the lower court determined that the evidence submitted by the prosecutor alone was insufficient to deem that the special project cost that Nonindicted 3 paid to Nonindicted 8 was paid in consideration of Nonindicted 8’s presidential secretary’s duties, or that the Defendant received the special project cost in collusion with Nonindicted 8 in return for the presidential secretary’s duties, and that there was no other evidence to acknowledge it otherwise.

A) The relationship between the President secretary general and the Director of the NIS

The Secretary General and the Director General of the NIS are subordinate agencies that assist the President in the performance of state affairs, and the Secretary General are in a position to exercise de facto influence over the duties of the NIS by assisting the President. However, they should be determined by taking into account various circumstances, such as the process of granting money and valuables, the intention between the parties, etc.

B) The details of the payment and suspension of the special project cost

Nonindicted 3 appears to have received the Defendant’s order and paid the special project cost to Nonindicted 8, and Nonindicted 8 also appears to have received the special project cost that Nonindicted 3 paid at the Defendant’s order. The process during which the special project cost was suspended is obvious that the payment of the special project cost and the number of payments was suspended in a passive manner according to the Defendant’s suspension order.

C) Method of delivering and storing special project costs;

The chief of the NIS’s secretary general, Nonindicted 12, Nonindicted 8’s statement of Nonindicted 8’s execution cost, via Nonindicted 13’s instruction, and the special project cost that Nonindicted 8 paid to Nonindicted 8, by Nonindicted 8’s office, would have been delivered to Nonindicted 8 through an official method in comparison with the usual method of delivery of a bribe that was carried out in a secret manner. Nonindicted 8 attempted to ask Nonindicted 13, who is the NIS’s execution cost, without hiding the fact that he received the funds from the NIS, to ask for a way of cash storage, while working against Nonindicted 13, who is a letter of execution cost. This is difficult to easily explain the fact that the transferred funds were a bribe.

D) The perception and intention of Nonindicted 3 and Nonindicted 8, at least, Nonindicted 3, who received the demand from the Defendant or the Cheongdae to provide the support for the operating expenses of the library room, and Nonindicted 8 also recognized that the support was received as the operating expenses of the library room according to the Defendant’s instruction. In addition, it is reasonable to deem that Nonindicted 8 returned KRW 30 million to the Defendant at the time of his resignation from the office of the office of the secretary. In addition, it is also consistent with Nonindicted 8’s assertion that Nonindicted 8, who was aware that Nonindicted 8 was receiving the official operating expenses through the Defendant at the expense of the office of the secretary, rather than recognizing the special operating expenses received from Nonindicted 3 as the consideration related to his duties.

E) Whether there is a benefit to obtain by the Director of the NIS who is the delivery

In addition to the presidential instruction, there is no evidence suggesting that there was a special motive that Nonindicted 3 should have paid the special project cost only to Nonindicted 8. In addition to the presidential instruction, Nonindicted 8’s above remarks appear to have been represented by the government’s position on behalf of the president, and it is difficult for Nonindicted 3 to obtain the said specific project cost in return for the delivery of Nonindicted 3’s special project cost, which is the president’s assistant secretary, in addition to the aforementioned special project cost, in terms of the fact that Nonindicted 8’s expectation of performance of duties by the president or various convenience in the pending issues of the NIS by granting money and valuables to the chief secretary, and that it is difficult for Nonindicted 3 to obtain the said specific project cost as the motive for offering the bribe. In addition to the aforementioned special project cost, Nonindicted 8 appears to have been present at the National Assembly Steering Committee on July 13, 2016, and the National Assembly’s inspection of the operation committee of the National Assembly on October 21, 2016.

F) Whether there is room for doubt as to the fairness of the presidential secretary’s execution of duties

It is difficult to readily conclude that, in this case where the president delivers part of the budget of the NIS to the president’s secretary general at the direction of the president, and the president’s secretary general received it in a passive manner in response to the direction of the president, it is doubtful that the fairness of the president’s duties to the secretary general or the president’s duties is doubtful solely on the fact that such money and valuables are given and received.

G) Whether Nonindicted 8 conspireds with the Defendant

Non-Indicted 8 does not seem to have first requested the Defendant to provide government funds or directly requested the Defendant to provide financial support, and does not seem to have any communication between the Defendant with respect to the scope, method of delivery, the delivery name, etc. of the amount paid. Non-Indicted 8 appears to have been in a position to have been delivered the government funds delivered from Non-Indicted 3 under the direction of the Defendant. In particular, as seen earlier, Non-Indicted 8 appears to have been in a position to have been given the government funds delivered from Non-Indicted 3, rather than the cost related to his own duties, it appears that Non-Indicted 8 thought that the special project funds in this case would have been paid to the President for the government funds. Even if Non-Indicted 8 was given the recognition that the amount delivered from Non-Indicted 3 was the government funds, it is insufficient to view that Non-Indicted 8 received the special project funds in return for his duties, or received the special project funds under the mutual agreement to share the amount related to the crime related to the delivery of the special project funds.

3) Judgment of this Court 2)

In light of the following facts and circumstances acknowledged by the court below based on the evidence duly admitted and investigated by the court below, the judgment of the court below is sufficiently acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor. Accordingly, the prosecutor's assertion on this part is not acceptable.

A) Job relationship and consideration relation with the so-called comprehensive bribery

same as the above-mentioned paragraphs 2-A, 3, and (a).

B) Whether there exists a business relationship and a compensation relationship

(1) Non-Indicted 3 stated in the prosecution that “Non-Indicted 3 provided aid in consideration of business relations, not to be provided by the President.” (Evidence No. 5 No. 1 No. 5 of the Evidence No. 116 of the Record), and that “Non-Indicted 3 provided it to Non-Indicted 8 with knowledge that it would be used as the actual operating expenses” in the court of the court below (No. 2 of the trial record No. 730 of the trial record). According to these statements, Nonindicted 3 appears to have provided special operating expenses to Non-Indicted 8 according to the Defendant’s direction, and it does not seem to have provided any special operating expenses,

D. The Prosecutor argues that the court below used the presidential instruction or request as the main argument for the existence of Nonindicted 3’s budgetary support intent and recognized the presidential governing act. However, as seen earlier, the court below merely considered the existence of a quid pro quo relationship in determining whether there exists a quid pro quo relationship, and it does not seem that the court below determined on the basis of the logic of governing act.

(1) The prosecutor of the Ministry of Maritime Affairs and Fisheries argues that Nonindicted 8 used 150 million won for private use, but he was asked to make a statement to have been made for business purposes. It is not possible to understand how much money was paid. The prosecutor’s statement by Nonindicted 13 (No. 6 of the evidence record No. 1 and No. 382 of the evidence record No. 6) alone is insufficient to recognize it, and there is no other evidence to acknowledge it. Rather, Nonindicted 8 appears to have returned to the Defendant at the time of his resignation.

C) Whether the parties are aware of a bribe

(1) Non-Indicted 3 granted special project costs on the ground that the president’s instructions were given. Non-Indicted 3 did not provide operating expenses of the Presidential Secretariat, separate from the president’s instructions. Non-Indicted 8, after receiving government funds, asked the President to ask him questions about the method of use and use them for actual operating expenses, and considered that it was the money that the President gave.

B. The Defendant submitted a written statement in the lower court’s trial that “ Nonindicted 8’s office chief secretary experienced difficulties due to the security and, if she could assist Nonindicted 3, the Defendant said Nonindicted 8’s office chief secretary.” In light of these written statements, the Defendant appears to have not thought that the said funds constitute a bribe even if the Defendant directed Nonindicted 8 to pay special project costs.

D) Whether the embezzlement is merely a distribution of the amount

As seen in the above Section 2-A, 3, and 4, the part that the court below held that “The special project cost paid to Nonindicted 8 according to the Defendant’s instruction is a mere result of the reversion of the embezzled money by Nonindicted 3 and the Defendant, who is the accomplice of the crime of national loss (section 73 of the judgment of the court below), is inappropriate, but such mistake does not affect the conclusion of the judgment.”

C. Determination of misconception of facts and misapprehension of legal principles as to the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding KRW 200 million, which was delivered by Nonindicted 3 on September 2016 from Nonindicted 3

1) Summary of this part of the facts charged

The Defendant, in collusion with Non-Indicted 3 and Non-Indicted 5 of the NIS Head of the NIS, lost the National Treasury by delivering the documents of KRW 200 million, in which Non-Indicted 7 directly possessed by the President as the official seal around September 2016.

2) Summary of the judgment of the court below

In full view of the following circumstances, the lower court determined that the evidence presented by the Prosecutor alone was insufficient to deem that there was an explicit or implied communication between Nonindicted 3 and the Defendant, or that there was a functional control over the Defendant’s act, without any reasonable doubt, and that there was no evidence to acknowledge otherwise.

A) From around September 2016, there is no evidence to deem that Nonindicted 3 instructed, demanded, or participated in the process of delivering the project cost to the Defendant by withdrawing the special project cost. In particular, Nonindicted 3 suspended the payment of the special project cost according to the Defendant’s express order on August 2016, and thereby, there is no reason to deem that the public offering relationship between Nonindicted 3 and the Defendant regarding the payment of the special project cost was interrupted, and there is no other circumstance to deem that the public offering relationship between Nonindicted 3 and Nonindicted 3 had been implicitly followed.

B) Rather, when comprehensively considering the statements made by Nonindicted 3, Nonindicted 4, Nonindicted 5, and Nonindicted 7 on the background in which Nonindicted 3 had the Defendant paid KRW 200 million for the special project cost on September 2016, it appears that Nonindicted 3 was the opportunity for Nonindicted 3 to pay KRW 200 million to the Defendant, which was divided by Nonindicted 4 and Nonindicted 5 regarding the Cheongbu circumstances, to report Nonindicted 5 to Nonindicted 3. On the other hand, it does not seem that the Defendant instructed Nonindicted 3 to pay the special project cost directly or given such instructions through Nonindicted 4.

C) In addition, even if the Defendant received KRW 200 million from Nonindicted 3 with the knowledge that it was government funds, the act of embezzlement due to the non-exploitation of special project costs led to the number of offenses committed by Nonindicted 3 by unexploiting or executing it (see, e.g., Supreme Court Decision 2004Do5904, Dec. 9, 2004). As such, the mere fact that the Defendant was issued with the knowledge that it was funds from the NIS does not necessarily mean that he participated in the act of embezzlement, such as non-exploitation of special project costs. Rather, it appears that the Defendant was paid ex post facto after the occurrence of the crime of embezzlement due to the non-exploitation of special project costs (the prosecutor, even if the public prosecutor did not recognize the conspiracy relationship between the Defendant and Nonindicted 3, it is reasonable to deem that the Defendant was an aiding and abetting crime of the National Treasury losses since he received it with the knowledge that the Defendant was government funds. However, insofar as it is difficult to recognize that Nonindicted 3’s loss was paid after the National Treasury.

3) The judgment of this Court

In light of the following facts and circumstances acknowledged by the court below based on the evidence duly admitted and investigated by the court below, the judgment of the court below is sufficiently acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the prosecutor. Accordingly, the prosecutor's assertion on this part is not acceptable.

A) On August 2016, Non-Indicted 3 stated in the court of the court below that “Non-Indicted 5 made it unnecessary to provide funds any more than 200 million won for the special project cost” in the court of the court below, and Non-Indicted 5 stated in the court of the court below that “Non-Indicted 4 pointed out the problems in the press reports, etc. on the situation of the State Administration and Agriculture, and then received the Defendant’s order of suspension from Non-Indicted 4.” (No. 1 right 325 through 327 of the public trial record), and Non-Indicted 4 stated in the court of the court of the court below to the above purport (No. 3 rights 1143 of the public trial record). In full view of each of the above statements, Non-Indicted 3, Non-Indicted 4 and Non-Indicted 5’s statements, even if Non-Indicted 4 had no special relation with the Defendant’s payment of KRW 200 million for the special project cost prior to September 2016, it cannot be deemed that the Defendant’s special order was discontinued 2016.

B) Nonindicted 4 and Nonindicted 7 were in charge of the above KRW 200 million decision and delivery process. However, there is no evidence to deem that there was the Defendant’s order with respect to Nonindicted 4 and Nonindicted 7. Rather, Nonindicted 4 stated in the court of the court below that “No report was made to the Defendant on the fact that KRW 200 million would come from the national prescribed number of the courts” (No. 3rd page 1146 of the trial record), and Nonindicted 7 stated in the court of the court below that “No direction or advice was made in advance regarding KRW 200 million” (No. 3rd page 1225 of the trial record).

D. Judgment on the misapprehension of legal principles as to collection

As seen above, since each crime of violation of the Specific Crimes Aggravated Punishment Act (Bribery) is not recognized against the defendant, the prosecutor's assertion that the amount of bribery should be collected in full in accordance with Article 134 of the Criminal Act on a different premise is without merit.

3. Ex officio determination

A. Whether the president of the NIS is an accounting personnel

1) Summary of the judgment of the court below

In full view of the following circumstances, the lower court determined that it is reasonable to view that the NIS constituted “other persons in charge of national accounting affairs” as defined in subparagraph 1 (k) of Article 2 of the Act on Liability of Accounting Personnel, Etc. (hereinafter “Act on Liability of Accounting Personnel”) in the position to substantially deal with the entire budget of the NIS including the special project cost of the Director General.

A) In full view of the relevant statutes and the provisions on the budget administration of the NIS, the president of the NIS is in the position to exercise overall control over the affairs of the NIS, manage the affairs of the accounts of the NIS, and direct and supervise the head of the assistance bureau, who is a finance officer. ② It is reasonable to deem that the government officer is in the position of substantially involved in the budget and accounting affairs, such as (i) the procedures for budget compilation, such as reviewing the application for a re-budget and budget budget, and annual reports on the annual report of accounts, monthly reports on the amount of activities incurring expenditures, and the procedures for the settlement of accounts, such as the review of the report on the settlement of accounts of the agency operation expenses, and (ii) the audit of

B) The NIS’s budget is composed of special activity expenses due to the nature of the NIS’s duties such as collecting and preparing domestic and foreign security information, and the security service for State secrets. Accordingly, the NIS’s budget provides that the NIS shall be an independent institution under the National Finance Act (Article 12(1) and the budget of an independent institution under the National Finance Act provide that the budget of an independent institution under the National Finance Act shall be respected to the maximum extent possible by the head of the relevant independent institution). ② The NIS may submit the budget bill to the Ministry of Strategy and Finance and the National Assembly Information Committee (Article 12(2)), ③ the National Assembly’s budget submission of data on details of budget execution due to the maintenance of security during the process of budget settlement or audit by the Board of Audit and Inspection (Article 13(1)), ④ the president, who is not the accounting officer, shall be responsible for the audit of the budget under his/her jurisdiction (Article 14). In light of such exclusive and independent nature of the budget, the president of the NIS is more closely involved in the process of settlement of accounts and accounts, as well as is directly involved in the budget.

C) Comprehensively taking account of the statement made by Nonindicted 5 and Nonindicted 14 of the NIS, the president of the NIS actually exercises the authority to approve the formulation of the budget bill (budget request), the result of the execution of the budget, and the result of the settlement of accounts. ② In the process of examining and re-afusing the details of the budget execution on the major projects of each department upon receiving a report on the details of the budget execution, he/she shall direct and supervise the personnel in charge of the NIS’s accounts, and ③ in the process of directly ordering the audit and approving the audit, he/she appears to have practically managed and supervised the budget compilation, execution, and settlement of

D) In the case of the special project cost of the NIS, the authority to prepare and approve the disbursement resolution is formally delegated to the head of the bureau, and the head of the bureau is in the position of a person who uses it. On the other hand, on the other hand, he/she is in the position of directly participating in the execution procedure of the special project cost by carrying out and approving the act of incurring expenditure of the special project cost. As such, the head of the NIS is more directly and closely involved in the execution and audit of the special project cost than any other budget of the NIS.

2) The judgment of this Court

However, the above determination by the court below is difficult to accept for the following reasons. Even if accounting affairs are in principle the authority of the head of a central government agency, if the head of a central government agency delegates the accounting affairs to public officials under his/her jurisdiction pursuant to relevant statutes or the head of a central government agency does not stipulate that accounting affairs shall be carried out by himself/herself pursuant to relevant statutes, it is reasonable to deem that the head of a central government agency does not constitute accounting officials, and such legal doctrine also applies to the president. Ultimately, it is reasonable to deem that the accounting affairs do not constitute “other persons in charge of national

A) Relevant legal principles

(1) Article 2 of the Accounting Personnel Liability Act provides for the definition of accounting personnel, and it does not explicitly list the head of a central government agency or the head of a local government, but Article 2 subparagraph 1 (k) of the same Act provides that "other persons in charge of the accounting affairs of the State other than those listed in items (a) through (j) of the same subparagraph shall be the accounting personnel, and Article 2 subparagraph 2 (b) of the same Act provides that a local government shall also include a person in charge of the affairs equivalent to the accounting affairs executed by a person listed in items (a) through (j) or subparagraph 2 (a) of the same Article, and thus, even if a local government is not specifically designated as an accounting personnel under any of the titles listed in items (a) through (j) or subparagraph 1 (b) of the same Article, it shall be deemed that the person is the accounting personnel (see Supreme Court Decisions 9Du5498, Feb. 23, 2001; 2003Do6534, Oct. 27, 2004).

B. Meanwhile, according to the provisions of Articles 44(1), 49(1), 91(1), and 106(1) of the Local Finance Act concerning whether the head of a local government constitutes “accounting personnel” under the Accounting Personnel Liability Act, the accounting-related affairs of the local government are, in principle, matters concerning the authority of the head of the local government, and among them, certain authority may be delegated to the public officials under his/her jurisdiction. Thus, if the head of the local government did not delegate such authority or the head of the local government is under his/her jurisdiction to deal with accounting-related affairs by himself/herself, the head of the local government also includes the scope of accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act (see Supreme Court Decision 9Du5498, Feb. 23, 2001

The principle of no crime and punishment, which are guaranteed through Articles 12 and 13 of the Constitution, mean that crimes and punishment must be determined by law, and the principle of clarity derived from such principle of no crime without the law refers to what is intended to punish a law, and what is expected by anyone who can anticipate, and that the elements of a crime are clearly prescribed so as to make a decision on one's own act (see Supreme Court Decision 2006Do920, May 11, 2006). In addition, criminal law should be strictly interpreted and applied in accordance with the language and text, and excessively expanded or analogical interpretation in the direction unfavorable to the defendant is not permitted as it is against the principle of no crime without the law (see Supreme Court Decision 98Do1719, Jul. 9, 199).

B) Legislative intent of the Accounting Staff Liability Act, the structure and content of the regulation, the developments leading to the amendment, etc.

(1) The purpose of the Accounting Personnel Liability Act is to clarify the responsibilities of accounting personnel, etc. and to prevent any accounting relationship in violation of the provisions prescribed in the statute or other relevant regulations and budget, thereby allowing the State, local governments, and other organizations, etc. subject to audit by the Board of Audit and Inspection to properly execute the accounting (Article 1).

The Luxembourg Accounting Personnel Liability Act was enacted by Act No. 441 on July 25, 1957. At the time of the enactment, the employees related to cash or the receipt and disbursement of goods were stipulated as accounting personnel. The reason for the proposal of the Accounting Personnel Liability Act was that ① Accounting Personnel have the obligation to faithfully perform the act in accordance with the statutes and other relevant provisions, and ② Accounting Personnel have the obligation to compensate for damages caused to the State or organizations intentionally or by negligence, ② The competent Minister or the competent supervisory agency has the obligation to order compensation even before the Board of Audit and Inspection determines, and ③ The competent Minister or the competent supervisory agency has the obligation to jointly and severally liable to the company that ordered illegal accounting activities.

Article 2 subparag. 1 of the Act on the Responsibility of Accounting Personnel is clearly divided into two categories: (i) accounting personnel, superior, and head of the agency to which they are affiliated; (ii) accounting personnel refer to any person who performs the national accounting affairs pursuant to the relevant Acts and subordinate statutes governing the budget and accounting of the State, who falls under any of the items of Article 2 subparag. 1 (Article 2 subparag. 1); and (iii) where accounting personnel are deemed liable for compensation, the head of the central government agency may order the relevant accounting personnel to compensate even before the Board of Audit and Inspection determines (Article 6(1)1); and (iv) where accounting personnel are jointly and severally liable for compensation to the superior who instructs or demands illegal accounting activities, and where accounting personnel are instructed or requested to do so by their superior, they shall be indicated to the head of the agency to which they are affiliated (Article 8) that they cannot perform the relevant accounting act if they

Article 2 subparagraph 1 (k) of the current Act on Liability of Accounting Personnel was newly established on December 31, 1981 at the time of the amendment by Act No. 3485 on December 31, 1981. Since various accounting-related Acts and subordinate statutes at the time were enacted or amended, there was lack of systematicity, the Accounting Personnel Liability Act was amended in order to strengthen the basic legal status as to the liability for damages of accounting personnel by integrating and integrating them. In particular, Article 2 was amended to uniformly define the definition of accounting personnel in accordance with the provisions of various Acts and subordinate statutes. In light of the progress newly established under Article 2 subparagraph 1 (k) of the Act on Liability of Accounting Personnel, it appears to be to prevent the case where the name or organization falls under the category of accounting personnel in cases of various Acts and subordinate statutes, rather than to establish the basis for establishing the independent status of accounting personnel.

(v) Meanwhile, Article 7 of the National Accounting Act, enacted by Act No. 8636, Oct. 17, 2007, provides that the head of a central government agency shall appoint an officer in charge of accounting in order to carry out all the accounting affairs under his/her jurisdiction. Accordingly, the Accounting Personnel Liability Act also adds the national accounting law that stipulates matters related to the national budget and accounting in Article 2 subparagraph 1, and newly establishes a title that includes an officer in charge of accounting in Article 2 subparagraph 1. As such, the reason why the officer in charge of accounting who is not directly related to the execution of receipt and disbursement of cash, goods, etc. is included in the accounting officer is to prevent any violation of the relevant statutes, relevant regulations, and budget and to appropriately execute accounting affairs by imposing liability for compensation on the accounting officer.

⑹ 이러한 회계직원책임법의 입법 취지, 규정 체계 및 내용, 개정 경위 등에 비추어 보면, 회계직원책임법 제2조 제1호 카목 에서 규정한 ‘그 밖에 국가의 회계사무를 처리하는 사람’은 ‘관련 법령’의 규정에 의하여 국가의 회계사무를 ‘집행’하는 ‘직원’ 중 ‘ 제1호 각 목 에서 규정하고 있는 사람에 해당하지 않지만, 그와 동일하거나 유사하게 수입 징수와 지출원인행위 등 구체적이고 개별적인 회계사무를 집행하는 사람’을 의미한다고 보인다.

C) relevant laws and regulations concerning the management and delegation of accounting affairs;

(1) The Minister of Strategy and Finance shall exercise overall control over the affairs of national accounting, and the head of a central government agency and a fund managing entity shall administer the affairs of accounting under their jurisdiction (Article 6(1) of the National Accounting Act). The Minister of Strategy and Finance shall exercise overall control over the affairs of collection and receipt of revenue and expenditure, and the head of a central government agency shall administer the affairs of collection and receipt of revenue under its jurisdiction, and the affairs of expenditure and expenditure (Articles 6 and 19 of the National Funds Management Act). Accordingly, the affairs of accounting under its jurisdiction are, in principle,

On the other hand, the head of a central government agency shall appoint an accounting officer in order to have him/her carry out all accounting affairs under his/her jurisdiction, and the head of a central government agency may replace the appointment of an accounting officer with the position established in the government agency to which he/she belongs (Article 7(1) and (3) of the National Accounting Act). In addition, the head of a central government agency may delegate the revenue collection affairs and the act of incurring expenditure to public officials under his/her jurisdiction, as prescribed by Presidential Decree (Articles 9(1) and 21(1) of the Management of the National Funds Act), and accordingly, the revenue collection affairs and the act of incurring expenditure may be delegated to public officials under his/her jurisdiction (Articles 9(2) and 22(1) of the Management of the National Funds Act), and the term "revenue collection officer" and "financial officer" in the Management of the National Funds Act (Article 9(2) and Article 22(2) of the Enforcement Decree of the National Funds Act). The financial officer shall substitute the appointment of an expenditure officer under his/her jurisdiction with the expenditure budget or fund management plan.

Article 8(1) of the Local Accounting Act provides that “The head of the local government shall exercise overall control over and manage the affairs concerning the accounts of the relevant local government,” and the same provision applies to cases of the head of the central government agency with respect to appointment of accounting officers, appointment of revenue collection officers, delegation of the act of incurring expenditure, etc. in the relevant statutes, such as the Local Finance Act and the Local Accounting Act (amended by the Local Accounting Act on May 29, 2016, deleted the provisions of the Local Finance Act on the delegation of revenue collection affairs and the act of incurring expenditure, etc.).

D) Contents of the provisions on the budget management of the NIS

(i) The NIS provides for finance officers, revenue collection officers, expenditure officers, accounting officials, etc. as budget accounting officials (Article 5); the finance officers to have them perform the act of incurring expenditure on the expenditure budget; and the revenue collection officers to have them manage the affairs concerning the collection of revenues under their jurisdiction; and the head of the finance and revenue collection officers to have them take charge of the affairs of finance officers and revenue collection officers (Articles 6 and 7).

In light of the structure and contents of the pertinent statute, the above provision of the NIS seems to be replaced by the appointment of an officer in charge of accounting, who is the head of the central government agency, to the finance officer, the revenue collection officer, the expenditure officer, etc., who is the head of the central government agency, in accordance with the relevant statute, delegated the affairs concerning revenue collection, expenditure and expenditure, which are the affairs under his/her jurisdiction, to the finance officer, the revenue collection officer, the expenditure officer, etc., who

E) Financial guarantee regulations for accounting officials

(1) An accounting official, such as a revenue collection officer, a finance officer, and an expenditure officer, shall not perform his/her duties without any financial guarantee prescribed by Presidential Decree (Article 45(1) of the Management of the National Funds Act); and the head of a central government agency shall establish and operate matters concerning the financial guarantee of the accounting official under his/her jurisdiction (Article 109 of the Enforcement Decree of the Management of the National Funds Act). According to the "Financial Guarantee Regulations for Accounting Officials in the Ministry of Strategy and Finance" prepared to determine common matters necessary for financial guarantee, an accounting official shall be construed as a "revenue collection officer, a finance officer, an expenditure officer, an order officer for receipt and disbursement of funds for prior use, an accounting officer (including a cash receipt and disbursement officer other than revenue and expenditure), a contracting officer and his/her agent, a person who is deemed particularly necessary by the Minister of Strategy and Finance as an accounting official (Article 2 subparag. 1); and an accounting official shall be established within 30 days from the date he/she is appointed as an accounting official (Article 3(1)); and 1) of the Act shall be renewed every year for accounting officials (20).

According to the above financial guarantee provisions and the Local Accounting Act, accounting officials under the National Fund Management Act and the Local Accounting Act are in fact identical to the scope of accounting officials under Article 2 subparagraph 2 of the Accounting Personnel Liability Act, and the review report by the competent committee on the bill of the National Fund Management Act enacted on December 30, 2002. According to the review report of the competent committee on the bill of the National Fund Management Act enacted on December 30, 2002, the financial guarantee for accounting officials is to secure the performance of their liability to compensate for any property damage to the State by intentional or gross negligence. The above liability for compensation is stipulated in the Accounting Personnel Liability Act, and the Local Accounting Act explicitly provides that the responsibility of accounting officials shall be governed by the Accounting Personnel Liability Act (Article 49 subparagraph 3 of the Local Accounting Act). In full view of the structure and contents of the relevant Acts and subordinate statutes, it is reasonable to deem that accounting officials under Article 2 subparagraph 1 of the Accounting Personnel Liability Act also fall under the financial guarantee officials subject to the National Fund Management Act.

Article 22(1) of the Criminal Procedure Act provides that an accounting official who is subject to the above financial guarantee provision refers to a public official who is directly in charge of the affairs related to the receipt and disbursement of money and goods, and the head of a central government agency appears not to be included in the above provision. According to the statement of Nonindicted 5 (Seoul High Court 2018No1729, 26, 54, the examination record of Nonindicted 5, 2018No1729, which was submitted in the trial at the trial), even if the scope and the financial guarantee of the accounting official are followed by the internal rules of the NIS,

F) Whether there is a special feature to view the president differently from the head of other central government agency

(i) The head of a central government agency, including the Director of the NIS, shall administer the affairs pertaining to accounting under his/her jurisdiction (Article 6(1) of the National Accounting Act), take charge of the affairs under his/her jurisdiction, and direct and supervise public officials under his/her control (Article 7(1) of the Government Organization Act, and Article 7(2) of the National Intelligence Service Act). The circumstance that the NIS requires the head of each department to submit the report on the preparation of a business plan and draft budget, budget application, settlement of accounts, settlement of accounts, and settlement of accounts to “receiving: Receipt” is that the head of the central government agency, including the Director of the NIS, manages the affairs

Meanwhile, according to the National Intelligence Service Act, the NIS is an independent institution under the National Finance Act (Article 12(1)), and the revenue and expenditure budget shall be submitted to the Ministry of Strategy and Finance in total upon request (Article 12(2)); the National Assembly’s budget settlement review or audit process conducted by the Board of Audit and Inspection may refuse to submit data or respond to matters concerning State secrets (Article 13(1)); and the NIS’s budget audit under its jurisdiction shall be conducted with respect to the budget under its jurisdiction (Article 14). Such relevant provisions are to ensure that it may not be disclosed if necessary for the national security of the organization, location, capacity, budget and settlement of accounts of the intelligence institution (see, e.g., the grounds for amendment of the National Information Division Act wholly amended by Act No. 1510, Dec. 14, 1963). Such relevant provisions alone do not change from the head of any other central government agency in relation to whether an information institution constitutes accounting personnel.

Article 14 of the National Intelligence Service Act (Article 14 of the National Intelligence Service Act) (1) In the practice of the NIS, with respect to ① budget compilation, each department shall report to and obtain prior approval from the president of the NIS on projects or important projects that involve a large-scale budget, ② budget execution allocated to the NIS shall be executed with the approval of the president of the NIS, but the budget related to the important projects or projects that carry out a large-scale budget by each department shall be executed with the approval of the president of the NIS. ③ In relation to the settlement of accounts, the budget statement of annual accounts shall be prepared by the budget office and approved by the president of the NIS. ④ In relation to the audit, the audit shall be conducted in the form of regular or occasional audit and inspection at the direct auditor office of the NIS under Article 14 of the NIS Act, with the approval of the president of the NIS and the National Assembly. The actual involvement of the NIS in the budget compilation, execution, settlement of accounts, and audit seems to be followed by the management of the accounts under its jurisdiction by the president of the NIS. Rather, the specific budget execution is difficult to be conducted by the auditor of the Act.

In addition, as seen earlier, the head of a central government agency may order the relevant accounting personnel to compensate even before the Board of Audit and Inspection determines (Article 6(1)1 of the Accounting Personnel Liability Act). In addition, the above provision is interpreted as a provision based on the premise that the head of a central government agency who has delegated the authority to conduct accounting affairs to an employee under his/her jurisdiction still has general management and supervisory authority concerning accounting personnel, etc., and in addition, in addition to the fact that the Act on Accounting Personnel Liability separately provides for the classification of accounting personnel, superior, and the head of an agency under his/her jurisdiction, the head of a central government agency shall not be deemed the head of an agency under his/her jurisdiction solely on the ground that he/she has the authority

In addition, the procedures for the disapproval and execution of the special project cost of the NIS are carried out in the order of the delegation decision rules with respect to the act of incurring expenditure, such as the preparation and approval of the disbursement decision by the chief of the NIS, ② the preparation and non-explosion order by the chief of the NIS, ③ the approval and the non-explosion order by the chief of the assistance bureau on the disbursement decision prepared by the budget officer, ④ the act of causing expenditure such as the preparation and approval, etc. of the disbursement decision by the chief of the assistance bureau, ④ the act of causing expenditure such as the preparation and approval, etc. of the disbursement decision by the chief of the assistance bureau, and the chief of the NIS only uses the special project cost by being allocated by the chief of the assistance bureau.

Considering these circumstances, even if the special project cost is not paid based on the non-explosion order of the NIS, the act of the NIS’s instruction cannot be deemed as the initial act of budget execution, payment order and expenditure, etc., for which the NIS bears the obligation of expenditure by the pertinent act (a contract or any other act which is the disbursement officer of the NIS). It merely constitutes an act such as the decision of the president of the NIS, etc., which requires such an act prior to such an act of expenditure, etc. (see Supreme Court Decision 2009Du14309, Dec. 22, 2011). The president of the NIS may have more wide discretion on the purpose, time, object of execution, and method of execution of the special project cost compared to the head of other central government agency depending on the unique characteristics of the intelligence agency, but solely on such circumstance, it does not change from the head of other central government agency.

(v) In addition, Article 2 Subparag. 1 of the Act on the Responsibility of Accounting Personnel defines accounting personnel who execute the national accounting affairs in accordance with Article 2 Subparag. 1 of the Act on the Punishment of Specific Crimes (hereinafter “the Act on the Responsibility of Accounting Personnel”) and provides a general provision that “other persons in charge of the national accounting affairs” in item (a) through (j) includes the revenue collection officer, finance officer, accounting officer, etc., and that “other persons in charge of the national accounting affairs.” Thus, it conforms to the language and text of the Act to interpret that “other persons in charge of the national accounting affairs” refers to at least the persons who can be seen as equal to those provided for in items (a) through (j) above in accordance with the legislative intent of the Act on the Liability of Accounting Personnel. If the head of the NIS, other than the head of the NIS who has been entrusted with the affairs of revenue collection and the acts of incurring expenditure, etc. under his jurisdiction, other persons who are in charge of the national accounting affairs, are in violation of the Act on the Punishment of Specific Crimes (hereinafter “Special Crimes Act”).”

G) The meaning of the Supreme Court ruling invoked by the prosecutor

The above Supreme Court Decision 9Du5498 Decided February 23, 2001 cited by a prosecutor held that the head of a local government did not delegate part of the accounting affairs of a local government, in principle, to a public official under his/her jurisdiction, and that the head of a local government is legally responsible for accounting affairs under the Accounting Personnel Liability Act. However, as seen above, the above decision requires the head of a central government agency to appoint an accounting officer in order to carry out general accounting affairs under his/her jurisdiction (Article 7 of the National Accounting Act) and accordingly, the officer in charge of accounting is additionally newly established [Article 2 (k) of the former Accounting Personnel Liability Act (amended by Act No. 8636 of October 17, 2007), Article 2 (j) of the current Accounting Personnel Liability Act, Article 2 (j) of the former Accounting Personnel Liability Act, and Article 2 (1) of the former Accounting Personnel Act (amended by Act No. 8636 of Oct. 17, 2007), and Article 19 of the Local Accounting Personnel Liability Act was enacted for the same purpose as the Local Accounting Personnel Management Act.

3) Sub-decisions

Therefore, the judgment of the court below which acknowledged the establishment of the offense of violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.), which is the primary charge, on the different premise above, erred by misapprehending the legal principles on the meaning and scope of accounting personnel, which affected the conclusion of the judgment

However, as seen below, even if the president of the NIS does not correspond to accounting personnel under Article 2 subparagraph 1 of the Act on the Liability for Accounting Personnel, insofar as he/she was in the process of controlling, directing, and supervising the accounting affairs of the NIS and was in custody of the special project expenses from the head of the assistance team, budget officer, etc. who is a public official under his/her jurisdiction while carrying out his/her duties, Nonindicted 1 of the NIS is in the position of a person in charge of special project expenses, and thus, can be the subject of the crime of occupational embezzlement (see Supreme Court Decision 2016Do18327, Jun.

B. Omission of determination as to the conjunctive charges related to KRW 200 million, which was received on September 2016

Of the facts charged in the instant case, the prosecutor instituted a prosecution on the premise that the president of the NIS constituted accounting officials on the charge of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding KRW 200 million (Loss on National Treasury, etc.), which was delivered by Nonindicted 3 on September 2016 from among the facts charged in the instant case, on the premise that the president of the NIS constituted accounting officials, but at the lower court determined the facts charged as the primary facts charged. If the president of the NIS did not constitute accounting officials, the Defendant in collusion with Nonindicted 5 of the senior chief secretary, who is accounting personnel, applied for amendments to the indictment to the effect that he/she committed a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.). As such, the lower court permitted this in collusion, and the lower court did not err by omitting the judgment on the conjunctive facts charged, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the guilty part of the judgment of the court below and the 200 million won-related violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) delivered on September 2016 are not guilty. Thus, without examining the prosecutor's judgment on the grounds of unfair sentencing, it is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's judgment on the grounds of unfair sentencing, and the prosecutor's appeal on the violation of the Specific Crimes Aggravated Punishment Act (Bribery) among the non-guilty part of the judgment of the court below is without merit. Thus, it is so decided as per Disposition by the court below.

4) Criminal facts

[Status of Defendant and Related Persons]

From February 25, 2013 to March 10, 2017, the Defendant served as the 18th President of the Republic of Korea; the head of the State and the head of all central administrative agencies including the NIS in accordance with the Constitution of the Republic of Korea as the head of the State and the head of the administrative accompanying affairs under the Constitution of the Republic of Korea; and the appointment and dismissal of the president and the deputy head of the National Intelligence Service (hereinafter referred to as the “National Intelligence Service”) and the head of the Planning and Coordination Office (hereinafter referred to as the “the head of the Planning Office”) of the National Intelligence Service (hereinafter referred to as the “National Intelligence Service”); and the Defendant has legal and substantial authority over the whole country, such as personnel affairs

From March 22, 2013 to May 22, 2014, Nonindicted Party 1, Nonindicted Party 2 from July 16, 2014 to February 28, 2015, and Nonindicted Party 3 as the president of each NIS from March 18, 2015 to May 31, 2017, and under the direction and supervision of the President who is the appointing authority, Nonindicted Party 1 is a person in charge of personnel affairs, budget, organization management and policy execution, and information and security affairs of the NIS.

From April 15, 2013 to June 26, 2017, Nonindicted 5 worked as the head of the NIS and carried out the affairs delegated to him/her, such as personnel, budget, and organization management, by assisting the head of the NIS’s affairs. In particular, Nonindicted 5’s finance officer who is in charge of the act of incurring expenditure among the accounts of the NIS, is in charge of the execution and management of the expenses for special activities of the NIS, and falls under the accounting personnel of the Act on Liability of Accounting Personnel, Etc. (hereinafter “Accounting Personnel Act”).

From May 16, 2016 to November 2, 2016, Nonindicted 8 served as the Chief Secretary of the Office of the President (hereinafter referred to as “Chief Secretary”), was in charge of the affairs of the Office of the President under the order of the President, supervised and supervised the public officials belonging to the Office of the Office of the President, and participated in the personnel affairs of the Senior Officers of each Ministry appointed by the President, such as personnel affairs, budget, and policies of the Office of the NIS, etc. as the Chief Director, and exercised his influence.

Nonindicted 6 is a person who served as the secretary general of the Office of the President from March 14, 2013 to October 31, 2016; Nonindicted 4 is a person who served as an assistant secretary general of the Office of the President from March 14, 2013 to January 22, 2015; and Nonindicted 7 is a person who served as an assistant secretary general of the Office of the Office of the President from January 23, 2015 to October 31, 2016; and Nonindicted 7 is a person who served as an assistant secretary general of the Office of the President from March 22, 2013 to October 31, 2016.

【Criminal Facts】

1. Crimes concerning the funds of the NIS given to the defendant;

On May 2013, the Defendant, immediately after the presidential appointment, demanded the president of the NIS, Nonindicted 1, 2, and 3 (hereinafter “the president”) to grant some of the special project cost to him/her in order.

Accordingly, the president of the NIS expressed that the special project cost of KRW 4 billion per year (the special project cost, hereinafter “special project cost”) is allocated to the president of the NIS who does not prove the source of use among the budget of the NIS, and led Nonindicted 5, who is the chief of the NIS, to comply with the above demand of the Defendant. The president instructed Nonindicted 5, who is the chief of the NIS, to prepare an amount equivalent to KRW 50 million per month from among the funds of the NIS, to prepare an amount equivalent to KRW 50 million per month.

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlements) (hereinafter “Specific Economic Crimes Act”) at the time of being employed as the president of the NIS

On May 2013, the president of the NIS Nonindicted Party 1 instructed the Defendant to the effect that “The Government Council shall send 50 million won per month from the Office of Government Administration, as the Office of Government Administration,” through Nonindicted Party 4, Nonindicted Party 1 sent 50 million won to the Office of Government Director in Seocho-gu Seoul, Seocho-gu, Seoul to the effect that “ Nonindicted Party 10 of the Government Council Policy Special Assistants for Government Administration may communicate money to the Office of Government Administration. Of the special project cost, Nonindicted Party 1 instructed Nonindicted Party 11 of the Office of Government Administration to the effect that “the Government will deliver money to the Office of Government Administration through Nonindicted Party 11” is called.

At that time, Nonindicted 10 requested Nonindicted 10,000 won among the special project costs kept by Nonindicted 11, the Director General of the Budget Office of Planning and Coordination, who kept the special project cost of KRW 200 million from Nonindicted 14, in cash. On May 2013, Nonindicted 10 requested Nonindicted 11, who was the Director General of the National Police Bureau, to “the delivery to the Cheongdaedae”, and Nonindicted 11 consulted on the date and time of promise by communicating Nonindicted 6 to the Secretary General of the Cheongdaedaedae.

On the other hand, around May 2013, the Defendant directed Nonindicted 6 that “The money was given to the National Assembly.” From May 2013 to Nonindicted 6, Nonindicted 6, instructed Nonindicted 11, who received the direction, sent to Nonindicted 11, who was committed in order to allow him to enter the Cheongdae Park, without going through access control through the Information Office for Information and Communication. Nonindicted 11, who was committed, sent Nonindicted 11 to a specific place in the vicinity of the Cheongdaedae which was promised to allow him to board, and entered the Cheongdae Park Park, and Nonindicted 11 also used the method of sending Nonindicted 6 meetings, who is a general secretary, for the purpose of meeting the NIS staff.

Ultimately, around May 2013, the Defendant, via Nonindicted 6, received from Nonindicted 1 through Nonindicted 11, an envelope containing KRW 50 million in cash of KRW 50 million from Nonindicted 11 in the office of secretary general secretary general in Jongno-gu, Jongno-gu, Seoul. In addition, from around that time to April 2014, the Defendant received KRW 60 million in total from Nonindicted 1, via Nonindicted 11, in the office of secretary general affairs affairs, via Nonindicted 11.

Accordingly, the Defendant, in collusion with the president Nonindicted 1 of the NIS, arbitrarily withdrawn and embezzled KRW 600 million of the special project cost, which was under his/her custody, regardless of the “information and the investigation of the case,” etc.

B. Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) at the time of Nonindicted 2’s position

On July 18, 2014, Non-Indicted 2 was appointed as the president of the NIS and received a business report from Non-Indicted 5 at the office of the head of the NIS located in Seocho-gu Seoul Metropolitan Government △△△△dong, that “The head of the NIS sent KRW 50 million per month from the special project cost to Cheongbu.” At that time, Non-Indicted 9 requested from Non-Indicted 9 to the effect that “the head of the NIS would increase the amount of Cheongbu Corporation subsidies.” After receiving a request from Non-Indicted 9 the Prime Minister to the effect that “the head of the NIS would increase the amount of Cheongbu Corporation subsidies.” At the Defendant’s request, Non-Indicted 2 directed Non-Indicted 5 to deliver the Defendant cash of KRW 100 million per month from among the special project cost of KRW

Accordingly, around July 2014, Nonindicted 5 had Nonindicted 14 of the budget officer of the Planning and Coordination Office withdraw KRW 100,000 from the special project cost of the NIS in cash, and had Nonindicted 4 contact Nonindicted 4 in advance, set a place for delivery in advance, moved Nonindicted 5’s vehicle to each of his own vehicle to the alleyway adjacent to the Cheongdae-gu Office, and then, Nonindicted 4 sent the documents with KRW 50,000,000 in KRW 50,000,000 in KRW 50,000,000 to Nonindicted 4.

Ultimately, the Defendant received KRW 800 million per month from Nonindicted 2 through Nonindicted 4 and Nonindicted 6 from July 2014 to February 2, 2015, in total, KRW 100 million per month from Nonindicted 2, as indicated in attached Table 2.

Accordingly, the Defendant voluntarily withdrawn and used KRW 800,000,000,000, which was composed of special project costs, in collusion with Nonindicted 2 and Nonindicted 5 of the NIS Head of the NIS, regardless of “information and the investigation of the case that require confidentiality”.

C. Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) at the time of Nonindicted 3’s position

In March 2015, the Director of the NIS, Nonindicted 3, at the office of the Director of the State Administration located in Seocho-gu Seoul Metropolitan Government △△△dong, Nonindicted 5, who received a business report, sent KRW 100 million per month from Nonindicted 5 to the audience. Nonindicted 3 instructed Nonindicted 5 to the effect that “The cash of KRW 100 million per month is to be given to the President” out of the special project cost of KRW 4 billion per year. Meanwhile, the Defendant again demanded Nonindicted 3 to re-examine Nonindicted 3 to the effect that “I will not have any funds provided by the NIS. I will continue to support the liquor tax.”

On March 2015, Nonindicted 5, in receipt of Nonindicted 3’s order, ordered Nonindicted 15 of the budget officer of the Planning and Coordination Office to withdraw KRW 100 million out of the special project cost of the president of the NIS, and received this order from Nonindicted 4 to the documents prepared by the NIS. Around that time, Nonindicted 5 sent Nonindicted 4 documents containing KRW 50 million cash of KRW 50,000,000 to Nonindicted 4 with the wheels of Nonindicted 4’s vehicle, with contact with Nonindicted 4 in advance, set a place for delivery, and moved to each of the vehicles to the alley in the vicinity of the Cheongbuan Park, and then, Nonindicted 4 sent the documents to Nonindicted 6 along with the documents received.

Ultimately, the Defendant, via Nonindicted 4 and Nonindicted 6, received KRW 1.9 billion each month from Nonindicted 3, including Nonindicted 3’s explanation around September 2015, and around January 2016, from around July 2016, the sum of KRW 1.9 billion each month, including Nonindicted 3’s explanation around September 2015, and Nonindicted 3’s explanation around January 2016.

Accordingly, the Defendant voluntarily withdrawn and used KRW 1.9 billion from “information and the investigation of the case that require confidentiality,” in collusion with Nonindicted 3 and Nonindicted 5 of the NIS Head of the NIS.”

2. Business embezzlement related to the funds of the NIS granted to Nonindicted 8 chief secretary

Around May 2016, the Defendant sent Nonindicted 3 to the Director of the NIS at the Office of Secretary-General in Jongno-gu Seoul, Jongno-gu, Seoul ( Address omitted), and instructed Nonindicted 3 to “I wish to grant the Secretary-General support to the Head of the Office at the Office of Secretary-General at the Office of Secretary-General at KRW 50 million per month, and Nonindicted 3 asked Nonindicted 3 “I know, I will know,” respectively.

After June 2016, Non-Indicted 3 entered KRW 50 million in cash in the office of the head of the NIS located in Seocho-gu Seoul Metropolitan Government △△△dong, and ordered Non-Indicted 12 to open a shopping bag, which read “Non-Indicted 8’s thickness with the Blue House 8’s office.” Upon receiving such order, Non-Indicted 12, upon receiving the order, put the cash amount of KRW 50 million into a gift box, put it into a box, putting it into a box with a string box, and then sealed the box into a shopping bag, and then sealed the box with a string box, and then packed KRW 50 million in cash, and then sealed the box in a box, and then contacted Non-Indicted 12 to the Blue room in advance, confirmed the date of the head of the Blue House, consulted with the head of the Blue House in advance, and found it into the Blue House by the Blue House.

Nonindicted 8 received from Nonindicted 12 to 50 million won a total of KRW 150 million per month from Nonindicted 3 of the NIS head of the House Office around that time, as well as from around the time to August 2016, Nonindicted 8 received the shopping bags in which KRW 50 million was incurred, from Nonindicted 3 of the NIS head of the House Office, in the same manner.

Accordingly, the Defendant, in collusion with Nonindicted 3, embezzled by arbitrarily withdrawing and using KRW 150,00,000 of the special project cost, which was kept in custody for business from June 2016 to the early police officer from August 2016, 2016, regardless of “information and investigation of the instant case, which requires the maintenance of secrecy”.

Since the corresponding column of the judgment of the court below is the same as the corresponding column of the judgment below, it is quoted in accordance with Article 369 of the Criminal Procedure

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

Article 3(1)2 of the Specific Economic Crimes Act, Articles 356, 355(1), and 30 of the Criminal Act (including the embezzlement of business as stated in Article 1 of the Act on the Aggravated Punishment of Specific Crimes), Article 5 subparag. 1 of the Specific Crimes Act, Article 2 subparag. 1 of the Accounting Personnel Liability Act, Articles 355(1) and 30 of the Criminal Act (including the embezzlement of business as stated in Article 1 of the Act on the Aggravated Punishment of Specific Economic Crimes), Article 35(1) of the Criminal Act, and Article 30 of the Criminal Act (Article 1-2 of the Act on the Aggravated Punishment of Specific Economic Crimes; Article 2 subparag. 1 of the Act on the Aggravated Punishment of Specific Economic Crimes; Article 33 of the Act on the Aggravated Punishment of Specific Economic Crimes; Article 356 of the Act on the Aggravated Punishment of Specific Economic Crimes; Article 35(1) of the Act on the Aggravated Punishment of Specific Economic Crimes; Article 35(2)30 of the Criminal Act on the person’s punishment of embezzlement.

[A public prosecutor asserts that the crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) is established against a person who holds the status of "accounting personnel" as prescribed by Article 2 of the Act on the Liability of Accounting Personnel, and that the defendant who conspired with Nonindicted 5 of the head of the assistance team who is an accounting personnel should be punished as to the crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) in accordance with the main sentence of Article 33 of the Criminal Act. However, the above crime is established when a person who is in the position as prescribed by the pertinent provision of the Act on the Liability of Accounting Personnel commits a crime as prescribed by Article 355 of the Criminal Act at the time of committing an aggravated crime under Article 355 of the Criminal Act. Thus, if the defendant who has no such status relationship committed a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.), it is reasonable to punish the defendant as to the crime of violation of Article 355 (1) of the Criminal Act. However, it is reasonable to impose the aggravated punishment on the defendant as to the profits of the Specific Crimes Act.

2. Aggravation 5)

Articles 37 (former part of Article 37, Articles 38 (1) 2, and 50 of the Criminal Act [Aggravation of concurrent crimes resulting from the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) concerning the crime when a person holds office of the President of the State Administration, Nonindicted 3 of the largest amount of punishment and punishment

3. Additional collection:

Articles 6, 3(2) and (1), and 2 subparag. 1(c) of the Act on Special Cases concerning Confiscation of Crimes of Public Officials; Article 5 subparag. 1 of the Specific Crimes Aggravated Punishment Act

[Basis for calculation of a surcharge] : 2.7 billion won of the special project cost (=80 billion won + 1.9 billion won) acquired as a result of the crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) stated in the judgment of the court

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Scope of punishment by law: Three to forty-five years of imprisonment;

2. Scope of recommended sentences according to the sentencing criteria;

(a) First crime [Violation of the Specific Economic Crimes Act (Embezzlement)]

[Determination of Punishment] Embezzlement and Breach of Trust

[Special Aggravationd Persons] Aggravationd: Teachers for the Commander

[Recommendation and Scope of Recommendation] Aggravation, 3 to 6 years of imprisonment

(b) Second crimes (Embezzlements);

[Determination of Punishment] Embezzlement and Breach of Trust >> Embezzlement/Misappropriation> (Type 2) more than KRW 100 million, less than KRW 500 million

[Special Aggravationd Persons] Aggravationd: Teachers for the Commander

[Recommendation and Scope of Recommendation] Aggravation, 2 to 5 years of imprisonment

(c) Scope of recommendations based on the standards for handling multiple crimes for crimes referred to in subparagraphs 1 and 2: Imprisonment with prison labor for three to eight years (the upper limit of crimes 1 + the upper limit of crimes 1/2);

(d) Crimes of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.);

The sentencing criteria are not set.

(e) Scope of final recommended sentences based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than three years (inasmuch as crimes for which the sentencing criteria are set and crimes for which no sentencing guidelines are set are concurrent crimes under the former part of Article 37 of the Criminal Act, only the lower limit of the scope of the recommended sentences for crimes

3. Determination of sentence: Five years of imprisonment;

The Defendant, a presidential secretary of the administration exercising overall control over state affairs, is in a position to strictly execute and supervise the State's budget in accordance with the law and procedure, and was responsible for supervising and supporting the State's final person in charge of national security to smoothly perform the constitutional responsibilities granted by the relevant State agency as a final person in charge of the State's security. Such Defendant merely received funds from the secretary of the NIS, and reported that he/she used such funds in practice from the former government, and requested the president to provide the president with the budget de facto under the President's command and supervision without undergoing the minimum procedure of confirmation as to whether it is legitimate, thereby continuously embling or causing loss to the State. The Defendant received the special project cost amounting to KRW 3.3 billion from the president of the NIS over a three-year period of time. In addition, the amount of loss suffered by the State is reasonable. Moreover, the Defendant seems to have used some of the special project cost granted from the president of the NIS for the purpose of private security, such as management expenses and loss of the State's expense, which is the basis of strict national security.

Furthermore, considering that it was difficult for the president to refuse to follow the direction of the defendant, who is the president having the authority to direct and supervise the president, to deliver the special project cost to the defendant during the term of office of the defendant for the president, the ultimate responsibility for the long-term large-scale crime should be deemed that the defendant is the defendant. Nevertheless, the defendant, while denying the crime of this case, is consistent with the attitude that is inconsistent with the position and role of the former president, such as failure to respond not only to the investigation by investigation agencies, but also to the attendance at the court below and the court below at all.

However, it does not seem that the Defendant, from the beginning, requested the delivery of funds of the NIS for the private purpose or for any unlawful purpose. On the other hand, even if it appears that the Defendant committed the crime in question according to the previous practices, such as the fact that the previous government received the funds of the NIS from the previous government, etc., it does not seem that the Defendant was aware of the illegality at the time of committing the crime. Moreover, part of the special project cost received from the president of the NIS is deemed to have been used for the public purpose, such as the budget of the NIS. In addition, it is necessary to consider the circumstance that the Defendant had no record of criminal punishment prior to committing the crime in this case as favorable to the Defendant.

Other circumstances shown in the records and pleadings, such as the age, character and conduct, environment, motive, means and result of the crime, and the circumstances after the crime, etc., shall be determined as the sentence as ordered.

1. Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding each of the 3.3 billion won-related crimes delivered from May 2013 to July 2016 (the primary charges against the crimes committed while in office Nonindicted 1, 2, and 3)

A. Summary of this part of the facts charged

Nonindicted Party 1, from March 22, 2013 to May 22, 2014, Nonindicted Party 2, from July 16, 2014 to February 28, 2015, and Nonindicted Party 3, from March 18, 2015 to May 31, 2017, hold office as the president of each NIS and is under the direction and supervision of the President who is the appointing authority, and constitutes accounting personnel under the Accounting Personnel Liability Act.

In collusion with the president, Nonindicted 1, and Nonindicted 5 of the NIS, from May 2013 to April 2014, the Defendant voluntarily released and used KRW 600 million of the NIS funds, which were composed of special project costs over 12 occasions, as described in attached Table 1, and incurred losses from July 2014 to February 2015, in collusion with the president, Nonindicted 2, and Nonindicted 5 of the NIS, and the Director of the NIS from July 2014 to February 2015, the Defendant incurred losses from the National Treasury by voluntarily withdrawing and using KRW 1.9 billion of the NIS funds, which were composed of special project costs over eight times, as described in attached Table 2, from March 2015 to July 3, 2016, as indicated in attached Table 3.

B. Determination

This part of the facts charged is premised on the premise that the president of the NIS corresponds to accounting personnel under the Accounting Personnel Liability Act. As seen in the above Section A, 2, and 3, the president of the NIS does not constitute accounting personnel. Therefore, since this part of the facts charged is a case where there is no proof of crime, each of the charges should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the charges of violating the Act on the Aggravated Punishment of Specific Crimes (Embezzlement) and the charges of violating the Act on the Aggravated Punishment of Specific Crimes (Loss on National Treasury, etc.) (the charges of violation of the National Treasury, etc.) in the judgment within the scope recognized as identical to the facts charged, shall not be acquitted separately in the disposition of the NIS, so long as the president of the NIS is found guilty.

2. Violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) regarding KRW 600 million delivered from May 2013 to April 2014 (Preliminary charges as to the crime committed while in office Nonindicted 1 at the National Cemetery Nonindicted 1)

A. Summary of this part of the facts charged

From April 15, 2013 to June 26, 2017, Nonindicted 5 worked as the head of the NIS and carried out the affairs delegated to him/her, such as personnel, budget, and organization management, by assisting the head of the NIS’s affairs. In particular, Nonindicted 5’s finance officer in charge of the act of incurring expenditure among the accounting affairs of the NIS is an accounting officer under the Accounting Personnel Liability Act.

The Defendant, in collusion with Nonindicted 1 and Nonindicted 5 of the NIS Head of the NIS, voluntarily withdrawn and used KRW 600 million from May 2013 to April 2014, as indicated in attached Table 1, to compensate for losses incurred by the National Treasury.

B. Determination

1) In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined by the lower court, it is insufficient to view that Nonindicted 5 conspired with the Defendant to voluntarily withdraw and use KRW 600,000,000 from the said special project cost, and there is no other evidence to acknowledge otherwise.

① In examining the record, there is no evidence to acknowledge that Nonindicted 5 conspiredd with the Defendant or Nonindicted 1 to commit this part of the crime. Meanwhile, around August 2013, Nonindicted 5 became aware of the crime of delivery of the special project cost by Nonindicted 1, and thereafter, it is recognized that Nonindicted 5 continued not to pay the special project cost despite being aware of such crime. However, it is difficult to deem that Nonindicted 5 conspired with the Defendant or Nonindicted 1 regarding the crime of delivery of the special project cost, or that there was any agreement on the realization of the crime.

② Rather, Nonindicted 1 stated at the prosecution that “Non-Indicted 5 did not talk to Non-Indicted 5” (Evidence No. 5 & 4254 of the record of the trial) and Non-Indicted 5 stated in the court of the court below that “Non-Indicted 5 made a statement to the same effect as Non-Indicted 5’s statement (Evidence No. 5 and No. 4254 of the record of the trial)” and that “Non-Indicted 5 made it possible to use the NIS’s budget from Non-Indicted 9 around May 2013, it would be better for the NIS to use the NIS’s budget from the audience.” A few hundred million won, Non-Indicted 1 reported to Non-Indicted 1 to the effect that it would not be able to make a compromise (No. 312 and 313 of the record of the trial) and Non-Indicted 14 made a statement to the same effect as Non-Indicted 5’s statement at the court of the court of the court of the court of appeal (No. 2nd. 488 of the trial record).

2) Therefore, since the facts charged on the premise that the defendant conspireds with the non-indicted 5, who is a public accountant under the Accounting Personnel Liability Act, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, since it constitutes a case where there is no proof of crime. However, as long as the defendant is found guilty of a violation of the Act on the Specific Economic Crimes (Embezzlement) (the second preliminary charges as to the crime committed while in office of the National Staff

3. Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) relating to KRW 200 million, which was delivered around September 2016 (main and ancillary charges)

A. Summary of this part of the facts charged

1) Main facts charged

From March 18, 2015 to May 31, 2017, Nonindicted 3 is a person in charge of personnel affairs, budget, organization management, policy execution, information and security affairs under the direction and supervision of the President, who is an appointing authority, and is a person in charge of accounting affairs under the Accounting Personnel Liability Act.

On September 2016, the Defendant, in collusion with Nonindicted 3 and Nonindicted 5 of the President of the NIS, lost the National Treasury by delivering the documents of KRW 200 million, in which Nonindicted 7 directly possessed the President’s official seal, in collusion with Nonindicted 3 and Nonindicted 5 of the Director of the NIS.

2) Preliminary facts charged

From April 15, 2013 to June 26, 2017, Nonindicted 5 worked as the head of the NIS and carried out the affairs delegated to him/her, such as personnel, budget, and organization management, by assisting the head of the NIS’s affairs. In particular, Nonindicted 5’s finance officer in charge of the act of incurring expenditure among the accounting affairs of the NIS is an accounting officer under the Accounting Personnel Liability Act.

On September 2016, the Defendant, in collusion with Nonindicted 3 and Nonindicted 5 of the President of the NIS, lost the National Treasury by delivering the documents of KRW 200 million, in which Nonindicted 7 directly possessed the President’s official seal, in collusion with Nonindicted 3 and Nonindicted 5 of the Director of the NIS.

B. Determination

1) Judgment on the main facts charged

2. As seen in the above Section C, 2, and 3 of the "Judgment on the Prosecutor's misunderstanding of facts and misapprehension of the legal principles."

2) Judgment on the ancillary facts charged

In full view of the following circumstances that can be recognized by the evidence duly adopted and examined by the court below, the evidence submitted by the prosecutor alone is insufficient to deem that there was an explicit or implied communication between the non-indicted 5 and the defendant with respect to the crime of the National Treasury loss with respect to the special project cost of KRW 200 million, which the non-indicted 5 voluntarily released and used by the prosecutor, or that there was a functional control over the defendant, without any reasonable doubt, and there is no other evidence to acknowledge it.

① Examining the record, there is no evidence to deem that there was a communication between the Defendant and Nonindicted 5 in the process of Nonindicted 5’s non-indicted 5’s non-indicted 3’s non-indicted 3’s non-indicted 3’s non-indicted 3’s non-indicted 5’

② Rather, comprehensively taking account of both Nonindicted 3, 4, and 5’s respective statements regarding the process of suspending the payment of the special project cost around August 2016 and the developments leading up to the resumption of the payment of KRW 200 million for the special project cost around September 2016, Nonindicted 4 and Nonindicted 5 appears to have caused Nonindicted 3 to pay the said KRW 200 million to the Defendant by reporting Nonindicted 5’s talking that Nonindicted 4 and Nonindicted 5 divided the circumstances of the audience to Nonindicted 3.

3) Sub-decisions

This part of the main and ancillary facts charged constitute a case where there is no proof of crime, and thus, the acquittal is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced in accordance with Article 58(2) of the Criminal Act.

[Attachment]

Judge Go-young (Presiding Judge) Lee Jin-young

1) As seen earlier, the prosecutor asserts that the grounds for appeal on the crime of violation of the Specific Crimes Aggravated Punishment Act are divided into ① business relationship and consideration relation in the comprehensive bribery, ② illegality of the judgment of the court below on business relationship, ③ illegality of the judgment of the court below on the recognition of business relationship, ④ illegality of the judgment of the court below on the crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), and illegality of the judgment of the court below on the establishment of the crime of acceptance of bribe. However, the court below considered the above items as follows: “whether the special project cost received by the defendant was paid as consideration related to the defendant’s duties,” namely, whether the special project cost received by the defendant was paid as consideration related to the defendant’s duties

2) As seen earlier, the prosecutor asserts the grounds for appeal on the violation of the Specific Crimes Aggravated Punishment Act (Bribery) by dividing the grounds for appeal into ① illegality of the lower court’s judgment on business relationship, ② illegality of the lower court’s decision on the public offering relation between the Defendant and Nonindicted 8. However, the lower court appears to have taken into account the circumstances that comprehensively consider in determining “whether the Defendant conspired with Nonindicted 8 and paid as consideration in relation to the duties of the chief of the office,” and thus, even below, this part of the grounds for appeal is also determined by gathering the grounds for appeal.

State 3) The National Accounting Act provides that “The responsibilities of accounting officials, etc. shall be governed by other Acts” (Article 28).

4) The following changes are recognized to the extent that it does not disadvantage the Defendant’s exercise of the right to defense, without the amendment process of indictment.

(5) On July 20, 2018, the Defendant was sentenced to two years of imprisonment for a violation of the Public Official Election Act on November 29, 2018, and the said judgment became final and conclusive on November 29, 2018 (Seoul Central District Court Decision 2018Da119 decided July 20, 2018; Seoul High Court Decision 2018No2151 decided November 21, 2018); and the crime of violation of the Public Official Election Act shall be excluded from the application of Article 38 of the Criminal Act pursuant to Article 18(3) of the Public Official Election Act and shall be sentenced separately from other concurrent crimes. Therefore, each of the crimes of this case, for which the judgment becomes final and conclusive, is not in a relationship of latter concurrent crimes of Article 37 of the Criminal Act.