[edit] Supreme Court Decision 2001Do3931 delivered on October 8, 2002 [Violation of the Act on Aggravated Punishment, etc. of Specific Crimes (bribery for exertion of influence)]
【Main Issues】
[1] The purpose of denying the admissibility of evidence of a statement which was given involuntarily, and who has the burden of proving the voluntariness (=prosecutor)
[2] If a person who was detained for a relatively minor crime was summoned almost everyday to the prosecutor's office and interrogated until late at night, the voluntariness of the statement document is doubtful. Unless a prosecutor remove such doubts, the admissibility of evidence of the document shall be denied.
[3] Whether a defendant's right to a fair trial was violated where a prosecutor prevented a defense counsel from meeting an inmate, who has been selected as a witness by the court, by summoning him to the prosecutor's office almost everyday until he testified in the court, and the prosecutor persuaded or oppressed him not to reverse his statements given to the prosecutor and occasionally offered some conveniences to him (affirmative)
[4] The credibility of a testimony by a briber in the 'bribery for exertion of influence' case is denied where the testimony was made under the circumstances that the prosecutor unconstitutionally prevented the counsel from contacting the witness and provided conveniences to the witness.
[5] The element of a crime of 'bribery for exertion of influence' under the Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is met where any person who was asked to influence the matters belonging to the duties of the public official just introduces another person to influence the matters instead of doing it himself.
【Summary of Decision】
[1] The reason why the admissibility of evidence of involuntary statements should be denied is that such statements themselves, given under the circumstances of danger of solicitation or coercion of false statements, are likely to be inconsistent with the substantive truth and bring about a wrong judgment, and that the application of unlawful and improper pressure, which violates the basic human rights of a defendant, should be prevented. Therefore, when there is a dispute over the voluntariness of a defendant's statement, defendant doesn't have to prove rational and detailed facts that raise doubts as to the voluntariness, rather a prosecutor has the burden of proof in removing such doubts about the voluntariness.
[2] If bribers in a 'bribery for exertion of influence' case were, while in detention for another crimes, summoned to the prosecutor's office almost every day and interrogated until late at night for tens of days or at least more than ten days, they might make statements from excessive physical exhaustion, lack of sleep, and psychological pressure. In such circumstance, the bribers' statements are surely doubtful, so their admissibility of evidence should be denied unless prosecutor removes doubts about their voluntariness.
[3] A Witness called by the court are one of the most important evidences, who should be investigated and examined equally by a prosecutor and a defense in the presence of a judge. Even if a witness were requested by a prosecutor, he does not testify only for the prosecutor but has an obligation to testify truthfully as to what he experienced, and therefore both the prosecutor and the defense are to be granted an equal opportunity of access to the witness. If either a prosecutor or a defense gains exclusive access or is allowed to hinder the other's access to a witness, it would be a violation of the other party's right to a fair trial. Similarly, if granting of conveniences to a witness is allowed only to a prosecutor, he would be able to either create improper social relations between them or appease the witness. On the other hand, the possible deprivation of such conveniences may act as psychological pressure. So grant or deprivation of conveniences with inmate witness may also violate the right to a fair trial like preventing the access to the witness.
[4] The credibility of a testimony by a briber in 'bribery for exertion of influence' case is denied where the testimony was made under the circumstances that a prosecutor unconstitutionally prevented the defense counsel from accessing the witness and provided conveniences to the witness.
[5] The element of a crime of 'bribery for exertion of influence' under the Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is met where any person who was asked to influence the matters belonging to the duties of the public official just introduces another person to influence the matters instead of doing it himself.
【Reference Provisions】 [1] Article 317 of the Criminal Procedure Act / [2] Article 317 of the Criminal Procedure Act / [3] Paragraph 1 of Article 27 of the Constitution / [4] Article 308 of the Criminal Procedure Act / [5] Article 3 of the Act on Aggravated Punishment, etc. of Specific Crimes
Article 317 of the Criminal Procedure Act (Voluntary Statements) (1) Oral statements given by a defendant or a person other than a defendant shall not be admitted as evidence unless the statements are made voluntarily.
(2) A document which contains an oral statement referred to in the preceding paragraph shall not be admitted as evidence unless it is proved that they have been made voluntarily.
(3) In case a part of protocol refers to evidence by inspection is part to oral statement given by the defendant or a person other than the defendant, only the part thereof shall be governed by the preceding two paragraphs.
Article 27 of the Constitution (1) All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act.
(2)~(5) <omitted>
Article 308 of the Criminal Procedure Act (Principle of Free Evaluation of Evidence) The probative value of evidence shall be left to the discretion of judges.
Article 3 of the Act on Aggravated Punishment, etc. of Specific Crimes (bribery for exertion of influence) Any person who receives, demands or agrees to receive any money or interest to induce or influence matters belonging to the duties of the public official, shall be punished by imprisonment for not more than five years, or a fine not exceeding ten million won.
【Reference Cases】 [1] Supreme Court Decision 97Do3234 delivered on April 10, 1998 (Gong1998Sang, 1400), Supreme Court Decision 98Do3584 delivered on January 29, 1999 (Gong1999Sang, 414), Supreme Court Decision 99Do4940 delivered on January 21, 2000 (Gong2000Sang, 530) / [3] The Constitutional Court Full Bench Decision 99Hunma496 delivered on August 30, 2001 (Hungong60, 862)
【Defendant】 Defendant
【Appellant】 Defendant
【Defense Counsels】 Law Firm Barun Byopryul and 3 counsels
【Court of First Instance】 Seoul District Court Judgment 98Godan9437 delivered on January 30, 2001
【Court of Second Instance】 Seoul District Court Judgment 2001No1297 delivered on July 5, 2001
【Disposition】 The court below's judgment shall be reversed and this case shall be remanded to the appellate division of Seoul District Court.
【Reasoning】The grounds for appeal by counsels as follows (supplementary grounds submitted after the legal due date are examined only to the extent that they concern grounds for appeal submitted within the due date):
1. With respect to receiving 30 million won for inducing or influencing matters belonging to the duties of the public official around February 1997
A. Summary of this part of indictments
The defendant, at 'Silban' bar located in Nonhyung-dong, Gangnam-gu, Seoul around February 1997, received from Person II, who is the president of Corporation II, 30 million won which had been provided by the CEO of Corporation I, with a request that the defendant induce either the mayor or the vice-mayor of Seoul City with whom he was acquainted to make it possible for Corporation I to purchase, by a contract ad libitum, the 'Yomiji' botanical garden located in Seogwipo City, Jeju Island, which the city of Seoul was looking to sell via auction under the authority of management and disposal of property entrusted by 'Sampoong' Construction Industry Ltd. after the disastrous collapse of 'Sampoong' Department Store.
B. Summary of the defendant's argument
In response to the above charge, the defendant argues that he received from Person II, 30 million won as a political donation for the presidential primaries of the New Millennium Democratic Party. The defendant claims that Persons II, III and IV each contributed 10 million won, and that he never received money related to a lobby as stated in the charge.
C. Judgment of the court below
The court below held that all the statement documents of Persons I, II, and IV, prepared by the prosecutor, are admissible as evidence. After considering the testimony in a trial of Persons I and II along with the statement document of Kim Hi-wan prepared by the prosecutor, the court found this part of the charge guilty.
D. Ruling of this court
(1) With respect to the admissibility of evidence of the statement documents of Persons I, II and IV prepared by the prosecutor.
(a) The court below held that the above mentioned persons all admitted in a trial court hearing that they signed and thumb-printed each of the above documents; that although questioning by prosecution lasted until late at night, the voluntariness of their statements cannot be denied solely on this reason; and that accordingly the statement documents of Persons I, II and IV prepared by the prosecutor are admissible.
(b) The reason why the admissibility of evidence of involuntary statements should be denied is that such statements themselves, given under the circumstances of danger of solicitation or coercion of false statements, are likely to be inconsistent with the substantive truth and bring about a wrong judgment, and that the application of unlawful and improper pressure, which violates the basic human rights of a defendant, should not be allowed. Therefore, when there is a dispute over the voluntariness of a defendant's statement, defendant doesn't have to prove rational and detailed facts that raise doubts as to the voluntariness, rather prosecutor has the burden of proof in removing such doubts about the voluntariness. (See Supreme Court Decision 97Do3234 delivered on April 10, 1998; Supreme Court Decision 98Do3584 delivered on January 29, 1999.)
(c) In review of records, the following facts concerning the investigative process of Persons I, II and IV by the prosecutor are acknowledged.
① Person I was detained on June 6, 1998, and charged with violation of the Act on the Aggravated Punishment, etc. on Specific Economic Crimes (fraud) in relation to the case where Corporation I illegally received approximately 95.9 billion won in financial aid from 'Hangook' Real Estate Trust Co., Ltd. Person II was detained on June 23, 1998, in relation to the same case, and charged with the violation of the Act on the Aggravated Punishment, etc. on Specific Economic Crimes (bribery for exertion of influence). Person IV was detained on June 24, 1998, in relation to the same case, for the same charges that Person II was detained. They were indicted on June 26, 1998 and summoned for interrogation as a witness by the prosecutor, starting August 4, 1998 for this case.
② The prosecutor submitted the followings as evidence: 6 statement documents of Person I prepared during investigation that continued until September 17, 1998, 5 statement documents of Person II prepared during investigation that continued until August 31, 1998, and the third and the fourth out of the 4 statement documents of Person IV prepared during investigation that continued until September 2, 1998. Out of the statement documents of Person I, the first was prepared on August 11, 1998, the second on August 12, the third on August 17, the fourth on August 18, the fifth on September 5, and the sixth on September 17. Out of the statement documents of Person II, the first was prepared on August 4, 1998, the second on August 8, the third on August 12, the fourth on August 17, and the fifth on August 31. Out of the statement documents of Person IV, the third was prepared on August 15, 1998 and the fourth on September 2, 1998.
③ For 27 days between his indictment on June 26, 1998 and the completion of the first statement document of Person II, Person I was summoned and interrogated by the prosecutor a total of 14 times: on June 27, June 29, July 1, July 2, July 3, July 4, July 6, July 7, July 8, July 10, July 13, July 14, July 22 and July 23. Again, during the period between the completion of the statement document of Person II and the completion of the first statement document of himself, Person I was summoned and investigated by the prosecutor 6 times for 7 days: on August 4, 1998 (time of return to the detention center: 01:25 the next day), August 5 (time of return to the detention center: 02:50 the next day), August 6 (time of return to the detention center: 03:00 the next day), August 7 (time of return to the detention center: 01:30 the next day), August 8 (time of return to the detention center: 00:15 the next day), and August 10 (time of return to the detention center: 04:05 the next day). Then, during the period from the completion of the first statement document to the completion of the sixth document, he was summoned and investigated by the prosecutor a total of 28 times for 38 days: on August 11, 1998 (time of return to the detention center : 07:20 the next day), August 12 (time of return to the detention center: 01:35 the next day), August 13 (time of return to the detention center: 01:45 the next day), August 14, August 17, August 18 (time of return to the detention center: 00:10 the next day) August 19 (time of return to the detention center: 03:30 the next day), August 20, August 21, August 28 (time of return to the detention center: 02:10 the next day), August 30 (time of return to the detention center: 02:00 the next day), August 31 (time of return to the detention center: 06:40 the next day), September 1 (time of return to the detention center: 03:25), September 2, September 3, September 4, September 5, September 6 (time of return to the detention center: 01:30 the next day), September 7 (time of return to the detention center: 01:45 the next day), September 8 (investigations continued on to the next day without return to the detention center), September 9 (time of return to the detention center: 06:45 the next day), September 11 (time of return to the detention center: 01:00), September 12, September 13, September 14 (time of return to the detention center: 00:10 the next day), September 15, September 16, and September 17.
In addition to the above summons and interrogations, the prosecutor continued to summon Person I for more investigation even during the period that the trial procedures were in progress. In review of this, in the Decision of August 30, 2001, 99HunMa496, the Constitutional Court, as stated later on in this judgment, went on to hold that the prosecution's conduct violated the defendant's right to a fair trial.
④ Person II was, during the period between his detention on June 23, 1998, and the completion of the first statement document, summoned and investigated by the prosecutor 3 times on June 25, July 30 and July 31, 1998. For 14 days between completion of the first statement document and that of the fourth statement document, he was summoned and investigated by the prosecution a total of 11 times: on August 4, 1998 (time of return to the detention center: 01:25 the next day), August 5 (time of return to the detention center: 02:50), August 6 (time of return to the detention center: 01:10), August 7 (time of return to the detention center: 01:30), August 8 (time of return to the detention center: 00:15 the next day), August 10 (time of return to the detention center: 04:05 the next day), August 11 (time of return to the detention center: 07:20 the next day), August 12 (time of return to the detention center: 01:35 the next day), August 13 (time of return to the detention center: 01:45 the next day), August 14, and August 17. The fifth statement document was made on August 31 after he was released on bail upon the court's ruling.
⑤ Person IV was, during the period between the indictment on June 26, 1998 and the beginning of interrogation for this case, summoned and interrogated twice on June 30 and July 31, 1998. After the commencement of interrogation for this case, he was, for the span of 10 days, summoned and interrogated by the prosecutor a total of 9 times: on August 5 (time of return to the detention center: 02:50 the next day), August 6 (time of return to the detention center: 01:10 the next day), August 7 (time of return to the detention center: 01:30 the next day), August 8 (time of return to detention center: 00:15 the next day), August 10 (time of return to the detention center: 04:05 the next day), August 11 (time of return to the detention center: 07:20 the next day), August 12 (time of return to the detention center: 01:35 the next day), August 13 (time of return to the detention center: 01:45 the next day), and August 14. The third statement document was made on August 15, 1998, the day after his release on bail upon the court's ruling on August 14, 1998. The fourth statement document was made on September 2, 1998.
⑥ Person II, in the first trial court, testified as follows: "The prosecutor told me to read the statement document, but I roughly skimmed through it and signed and stamped my thumb on it because the investigation process was so hard and my truthful statement was disregarded by them, so I thought I need not read it." (court records, p178) He also answered "Yes" to the defense counsel's question as follows: "Is it true that you were detained mainly in solitary confinement upon being summoning by the prosecution; that you unconsciously wriggled with the fear that you might be mentally deranged, then you were sent into grouped confinement for about three days; and that during investigation, young detectives who were dispatched from the Special Investigation Division hit your neck, thighs etc. with their hands countless times and threw you to the ground, giving you a black and blue bruise on your left knee?" (court records, p191) He also answered "Yes" to the defense counsel's question as follows: "Is it true that you, the witness, have been treated for neuropsychiatry problems as an outpatient after the hospitalization in 'Anse' Hospital and 'Soon Chun Hyang' Hospital from August 17, 1998 when you were released on bail to September 25, 1998?" (court records, p193) He answered "Yes, that is correct." to the defense counsel's question as follows: "Did Person I tell you (when you were being summoned and investigated by the prosecutor on August 11, 1998) 'it is too hard, the prosecutor will not believe what you say, let's just finish this as soon as possible, it is useless to deny, if you deny, you will just get hit?'" (court records, p193) He answered "Yes, I was summoned everyday for about 10 days" to the defense counsel's question as follows: "You were summoned to the prosecutor's office everyday but Sunday starting August 4, 1998 till that time when you were summoned and investigated on August 12, 1998, so you were unable to endure the physical and mental exhaustion?" (court record, p194)
To the prosecutor's question as follows: "You stated that the young detectives of the Special Investigation Division hit you on the neck, thighs etc. with their hands countless times and threw you to the ground giving you a black and blue bruise on your left knee. Is this true?", Person II answered "Yes, that is true.", "Later on when I was being summoned everyday, the young investigators did so, asking why my statements were contradicting Person IV's statement and if my inconsistent statement was a lie." (court records p198) To the prosecutor's question "Was there any occasion in which I failed to write down any statements you made?", Person II answered as follows: "Whatever I requested, my statement was totally disregarded. For instance, when the prosecutor asked 'Did Lee Jae-hak, the CEO of Gyoung-sung give you 10 million won in a yellow envelope?', I said 'He gave it to me in a white envelope', but you did not accept my statement. Whatever I tried to state, it was never accepted. At that time it was a very harsh time for me because I had just been released on bail. I was once investigated in such a manner by you." (court records, p896)
⑦ Person IV, in the first trial court, testified with regard to the third and the fourth statement documents as follows: "I repeated what I had stated when I had been detained. It cannot be said that all of my statements were certainly truthful. Some were truthful statements and others were false. But it is true that I read and signed the documents and stamped my thumb on it." As for the reason why he made false statements, he testified as follows: "When I was first arrested, I, on the matter of the 50 million won note, repeated several times that I had neither seen nor received the note, and that I had only received 20 million won. But the prosecutor in charge of the investigation said, 'Although you deny that you received 50 million won or 70 million won, isn't it at least true that you did receive 20 million won? If so, the only part you have to take responsibility for is the 20 million won. We are both tired from staying up all night and it does not matter whether you received 50 million won in a note or in cash' and so I made my statement following his request, then I made the next statements in accordance with the first because I thought it would be awkward to reverse the first statement. The statement as of August 15 was also made like this. The prosecutor said, 'Let's just make your statement concur with your previous statements. What on the earth are we doing here on a holiday? Don't make situation worse.' Then I made a statement as requested by the prosecutor because I was told I did not hand money to the defendant and it did not make any difference whether Person II had received a note and had it discounted or I had received the money in cash, and I was to take responsibility only for receiving 20 million won." And Person IV stated that "At that time I had a separate case of 20 million won that I was not charged yet. The prosecutor said if I did not follow his request, he would indict me on the 20 million won when I would be released after serving my sentence. It is true the prosecutor put pressure on me by saying that if I did not cooperate he would make me serve at least 7 years in prison." (court records, p. 483)
(d) Considering the fact that Persons I, II and IV were all being detained for relatively minor crimes as reviewed above, and the number and frequency of summons and the duration of investigation thereof that we have seen above, it seems they made the statements under excessive physical fatigue, lack of sleep, and mental pressure. Regarding the fact that Persons II and IV testified in the first trial court about the physical and mental oppression of the investigative process reviewed above, there exist circumstances to doubt the voluntariness of each statement documents of Persons I, II and the third statement document of Person IV, and the prosecutor has not removed such doubts, so the documents cannot be admissible as evidence.
The third statement document of Person IV was made when summoned to the prosecutor's office at 8 AM on August 15, 1998, the day after the release on bail, and so it is of little doubt that he was still experiencing the same physical fatigue, lack of sleep, emotional pressure and physical, mental oppressive state as while detained. The fact that the document was made the day after his release on bail alone does not remove reasonable doubt on the voluntariness of the statement written in the above document, and therefore it is not admissible as evidence. Although the fifth statement document of Person II was made after he was released on bail, the psychologically oppressive state he had experienced while detained seems to have still lasted for a considerable amount of time, and the statement was made while Person II was getting psychological treatment for the aftereffect of the mental oppression during the investigations. The fact that the above mentioned statement document was made after release on bail alone does not remove reasonable doubts on the voluntariness of the statement document, and therefore, it is not admissible as evidence.
However, the fourth statement document of Person IV was made more than 2 weeks after his release on bail, and there do not exist special circumstances that might bring doubt to the voluntariness of his statement, such as getting psychological treatment for mental pressure due to investigation under detention (like Person Ⅱ). So, The fourth document of Person IV is admissible as evidence.
(2) We now review whether the fourth statement document of Person IV and other evidence are enough for guilty judgment.
(a) The contents of the statements made by relevant persons are as follows:
1) Person I, in the first witness examination in the trial court (court records, p. 440, et sqq.), testified the following facts.
① Person I asked the defendant, through Person II, to influence Seoul City officials to allow him to purchase Seogwipo 'Yumiji' botanical garden, by a contract ad libitum, which the city of Seoul was trying to auction off under the authority of management and disposal of property entrusted by the 'Sampoong' Construction Industry Ltd. ② A few days later, Person I personally met with the defendant at 'Lisbon' Bar and asked the defendant to help him by inducing the Mayor and Vice-mayor to allow Corporation I to purchase 'Yumiji' botanical garden on favorable terms, by a contract ad libitum, and to receive a loan for the purchase from the Seoul City Safe. ③ The defendant then said he was aware of this because Person II had told him, and he was acquainted with the Mayor and Vice-mayor Kim Hi-wan and could help by talking to Vice mayor Kim. ④ Although Person II asked for 30 million won for meeting the defendant, Person I could not give the money right away, later gave Person II a 500 million won promissory note sometime in February, 1997, requesting that 30 million won be given to the defendant for lobby concerning the 'Yumiji' botanical garden, and the rest, 20 million won, be given to a presidential secretary for the audit and inspection for another lobby. ⑤ After being detained, Person Ⅰ heard from Person II that Person II had at that time exchanged the promissory note into a check and gave 30 million won to the defendant and 20 million won to Person IV. ⑥ Ten days after giving money to Person II, Person Ⅰ met with Vice-mayor Kim Hi-wan and asked to help person Ⅰ purchase 'Yumiji' botanical garden by a contract ad libitum and receive a loan from the Seoul City Safe. ⑦ Vice-mayor Kim Hi-wan then said that a contract ad libitum of 'Yumiji' botanical garden would go through while the loan would be difficult and that he would check it out. ⑧ Later on, although Person Ⅰ heard from Person II that Vice-mayor Kim Hi-wan had contacted Person II and Person Ⅰ should go see the Vice-mayor, he did not pursue the contract because his financial state was not good enough to purchase 'Yumiji' botanical garden immediately.
In the second witness examination (court records, p. 919, et sqq.), Person I testified that ① since giving the 50 million won note to Person II, he has neither heard from Person II that he delivered the money, nor asked about the delivery; ② the 50 million won promissory note was issued under the name of either Corporations I or III and recorded in the company's account books, all of which were confiscated by the prosecution; ③ it was agreed that Person II paid discounting premium for the 50 million won promissory note.
2) Person II, in the trial court, testified that ① he was asked by Person I to contact a Seoul city official to ask about the city's plan to sell 'Yumiji' botanical garden and plausibility of a contract ad libitum; ② when he met the defendant with Person I at 'Lisbon' bar and mentioned 'Yumiji' botanical garden matter, the defendant said that he did not know the matter in detail and suggested that Person Ⅰ calls Vice mayor Kim Hi-wan; ③ it was not around February, 1997 but around August, 1997 when he received the 50 million won note from Person I; ④ around April 30, 1997, at 'Silban' bar, he and Persons III and IV collected 10 million won each, and gave 30 million won as political donation to the defendant, who was running for the presidential primaries of the Democratic Party.
3) Also Person IV ① stated in the fourth interrogation by the prosecution, that he had received a 50 million won note from Person II around February, 1997, but he gave back 30 million won to Person II because Person II said he needed to give 30 million won to the defendant as political donation, and spent 20 million won for himself. But he reversed this statement and testified at trial that he had never received a 50 million won note from Person II and had received only a 20 million won check. ② He stated in the fourth interrogation by the prosecutor that he had exchanged Person I's 50 million won note and gave 30 million won to Person II, and he heard Person II saying that Person II had given 30 million won to the defendant at 'Sil-ban' bar around February, 1997. But he reversed this statement and testified at trial that he had given the defendant 30 million won not around February, 1997 but around April, 1997 and that the money was collected from himself, Person II, and Person III to support the defendant running for the presidential primaries of the Democratic Party.
4) Then Vice-mayor Kim Hi-wan of Seoul city stated at the prosecutor's office that the defendant had asked him to talk with and help Corporation I, which was trying to purchase 'Yumiji' botanical garden, and he had met Persons I and II at a coffee shop in Plaza Hotel and had been told about their intention to purchase the botanical garden because he had thought their request was not against any regulations. At the trial court, Vice-mayor Kim testified that he had only been asked by the defendant to meet Persons I and II, but he had never been asked to help them purchase the botanical garden.
(b) First, we examine the credibility of Person I's first testimony
1) According to the records, we can see the following facts.
① Person I, during the trial court proceedings, did not appear in court on the fourth hearing, February 24, 1999; the fifth hearing, April 20, 1999; and the sixth hearing, June 2, 1999. He appeared on the seventh hearing, June 30, 1999, but said he would testify on the next trial day because he was feeling dizzy and had a headache. The witness examination was subsequently postponed, but he did not appear in court on the next hearing, July 20, 1999. The first testimony finally took place on the eleventh hearing, October 5, 1999.
② As reviewed above, the prosecution summoned Person I to the prosecutor's office almost everyday, for investigative purposes, not only during the investigation for this case but also during the trial proceedings. That is, during the period from June 27, 1998 when he was detained and indicted for the above mentioned counts to October 5, 1999 when Person I, as a witness, first testified for this case, the prosecution summoned Person I to the prosecutor's office and return him to the detention center late at night or early the next morning as many as 270 times. A couple of these summons overlapped with the hearing set for a witness testimony. As a result, Person I stayed at the prosecutor's office instead of attending the hearing (the sixth hearing, June 2, 1999), or Person I requested to adjourn the witness testimony even when he appeared in court, being too confused to decide what to testify (the seventh hearing, June 30, 1999).
③ Person I, while being summoned to the prosecutor's office in the name of investigations as seen above, made phone calls to his family and business phone calls under the prosecutor's consent (court records, p. 428). On September 20, 1999, the day before the tenth hearing, he made a phone call at the prosecutor's office around 20:00 to Chun Young-boo to ask to prevent Person IV who had been summoned as a witness from attending the next day hearing (court records, p. 937-938).
④ The defendant requested the Constitutional Court for the adjudication on whether these kinds of exercises of the prosecutor's authority are constitutional. The Constitutional Court held that out of the summons of Person I, 145 summons from November 12, 1998, the day after Person I was chosen as a witness in this case to July 20, 1999 were aimed at either providing conveniences or denying the defendant counsel's access to Person I, that the defendant's right to a fair trial was violated, and the summons were unconstitutional.
The Constitutional Court held as follows:
A Witness called by the court are one of the most important evidences, who should be investigated and examined equally by a prosecutor and a defense in the presence of a judge. Even if a witness were requested by a prosecutor, he does not testify only for the prosecutor but has an obligation to testify truthfully as to what he experienced, and therefore both the prosecutor and the defense are to be granted equal opportunities of access to the witness. If either a prosecutor or a defense gains exclusive access or is allowed to hinder the other's access to a witness, it would be a violation of the other party's right to a fair trial. Similarly, if granting of conveniences to a witness is allowed only to a prosecutor, he would be able to either create improper social relations between them or appease the witness. On the other hand, the possible deprivation of such conveniences may act as psychological pressure. So grant or deprivation of conveniences with inmate witness may also violate the right to a fair trial like preventing access to the witness. (Constitutional Court Decision 99Hunma496 delivered on August 30, 2001.)
2) The court below believed the credibility of Person Ⅰ's testimony and adopted it, considering its motive, reason, and context. But because, as we have seen above, the first testimony of Person I was made while the prosecutor was unconstitutionally hindering the defense counsel's access to Person Ⅰ and providing conveniences for Person Ⅰ, the court below's judgment cannot be affirmed. On the contrary, the circumstances of the testimony warrant strong doubts on its truthfulness
(c) Reviewing the relevant persons' testimonies in consideration of such doubts on the truthfulness of Person I's first testimony as mentioned above, we found that the above evidence is not sufficient to prove guilty on this part of the charge for the following reasons.
1) In light of the records, the defendant claims that, upon receiving request from Persons I and II to inquire of Seoul City officials about a contract ad libitum of 'Yumiji' botanical garden which it was trying to sell, although he made a phone call introducing them to then Vice-mayor Kim Hi-wan, he had never received any money from anyone in relation to this call, and he claims that he merely received from Person II 30 million won which was collected from Persons II, III and IV as a political donation for the defendant running for the presidential primaries of the Democratic Party. Actually, the defendant ran for the presidential primaries of the Democratic Party held on May 19 of the same year, and Persons II, III and IV were long-time acquaintances of the defendant, and the defendant met them at 'Sil-ban' bar on April 30, 1997, and although Person I was looking into the possibility to purchase botanical garden during January and February of 1997, he stopped pursuing the purchase of the garden and eventually gave up when Corporation I had financial difficulties. Therefore, to find guilty on this part of the charge, which argues that the defendant received money for lobby related to the botanical garden, more is needed than proving that the defendant received 30 million won from Person II. The time of receiving money must be proven to be around February, 1997, as stated in the charge.
2) In this regard, reviewing the statements of the relevant persons, although Person I's first testimony and the Person IV's fourth statement at the prosecutor's office support the charge, all the parts saying that Person II actually gave 30 million won to the defendant around February, 1997 are nothing but hearsay statements from Person II, and Person II in his testimony denied the fact he gave money for the purpose of lobby. Therefore, the hearsay statements from Person II cannot be admitted as evidence, pursuant to Article 316 Paragraph 2 of the Criminal Procedure Code. In addition, Person I's first testimony, for reasons stated in the above (b), and Person IV's fourth statement at the prosecutor's office, for the reason that he reversed his position in court, both cannot be readily reliable.
3) Also, according to Person I's testimony and Person IV's statement at the prosecutor's office, the 30 million won check that Person II allegedly gave to the defendant had come from the 50 million won note Person I gave to Person II around February, 1997. Person I also testified in the second testimony that the note was issued by Corporation I or III and that its issuance was recorded in the company's account book. Therefore, decisive evidences can be easily obtained, just by tracing financial records, on whether Person I gave Person II a 50 million won note around February, 1997 (as we have seen, Person II testified this reception occurred around August, 1997.) or whether Person II used this money for the purpose of lobby. But the prosecution have no evidence whatsoever in spite of having investigated this case in August, 1998. Where the transfer of notes or checks in huge sum is the core of a charge and the suspect denies the charge, the tracing of financial records is not indispensable. If the prosecution did not perform the tracing without special circumstances, the disadvantage should go to the prosecution who is to have the burden of proof.
4) In addition, it is clear that the above statement given by Kim Hi-wan to the prosecutor alone is not enough to prove that the defendant received 30 million won from Person II around February, 1997 for the purpose of lobby as mentioned above.
(3) Despite all these, the court below allowed Person I's and Bo-sung Lee Jae-hak's statement documents prepared by the prosecutor the admissibility as evidence and the court, based on these statement documents, Person I's testimony of the trial court, and Person IV's statement at the prosecutor's office, found the defendant guilty on this part of the charge. Accordingly, the court below erred by misunderstanding the legal principles regarding the admissibility of involuntary statement documents and by violating other rules of evidence, affecting the outcome of the judgment. The ground of the appeal on this issue can be accepted.
2. With respect to the count of 'bribery for exertion of influence' with receiving 10 million won around August, 1995
A. Summary of this part of the charge
The summary of this part of the charge is as follows: The defendant, at Ambassador Hotel located in Jangchung-dong, Jung-gu, Seoul, around August 1995, received 10 million won from Person I along with the request to lobby the mayor of Goyang City to change the land use plan, to review on the basic construction plan, to approve the apartment business as soon as possible, and to give some conveniences to Corporation Ⅰ in relation to the construction program of 'Tan-hyun' apartments with 2588 households which Corporation I wanted to acquire. Thus, the defendant's conduct comes under the crime of 'bribery for exertion of influence'.
B. Summary of defendant's statement
In response to the charge, the defendant argues that after being introduced to Person I by Person II who has supported the defendant, he was asked to introduce Person I to the mayor of Goyang City who is his colleague member of the same party, but he merely advised Person I to go meet Person V, a chairman of the Goyang City district chapter who is also his colleague member of the same party because he was not acquainted with the mayor. He neither received such request as stated in the charge nor received 10 million won from Person I.
C. The original court's decision
The court below found that each statement document of Persons I and II is admissible as evidence, and the court held that the statement documents, Person I's and Person II's testimonies, and Shin Dong-young's statement at the prosecutor's office are enough to confirm the charge, and found the defendant guilty on this charge.
D. On the grounds for appeal
(1) As we have seen, the statement documents of Persons I and II prepared by the prosecution cannot be used to prove the defendant guilty because there exists doubt of the voluntariness of the statements.
(2) In reviewing whether the facts of the charge can be proven guilty with the remaining evidences, Person I's second testimony and Person II's testimony at the trial court, and Dong-young Shin's statement and the defendant's statement at the prosecutor's office will be admissible as evidence.
① The defendant met Person I through Person II at a coffee shop in Ambassador Hotel around August 1995, and was asked to lobby the mayor of Goyang city regarding the Goyang City Tan-hyun apartments construction business which Corporation I was pursuing to acquire. ② The defendant, after receiving such a request, told Person I that since he was not directly acquainted with the mayor of Goyang City, Person I should instead meet Person V, the chairman of Goyang City district chapter of the Democratic Party, who knew the mayor well. The defendant also personally made a phone call to Person V and asked him to introduce the mayor to Person I. ③ After Person V met with Person I through the defendant, he told the mayor about the lobby regarding the above apartments construction business and also introduced Person I to the mayor. Shin Dong-young, the mayor, heard the request from Person I regarding the above apartments construction business. ④ The defendant, around August, 1995, at a coffee shop in Ambassador Hotel, just after hearing the above lobby from Person I, received 10 million won from Person 2 (According to Person 2's statement, while he did not check the amount of money in the envelope, he knew that it was money prepared by Person I. Person I, who inserted the money in the envelope, stated that the amount was 100 million won. As long as there is no evidence to the contrary, it is appropriate to conclude that the amount of money delivered to the defendant was 10 million won).
If we consider, along with the above facts, the status of the defendant, Person V, and the mayor of Goyang City in the Democratic Party, and logic of experience, the money the defendant received from Person II cannot be merely seen as a reward for introducing Person V to Person I or as 'an allowance' as stated by Person II. Rather, it should be seen as money given in return for the defendant's efforts to induce the mayor through a political influence with respect to the above mentioned Tan-hyun apartments construction business. The fact that there are more or less uncertainties on the specific content of the defendant's phone call to Person V, whether the money delivered to the defendant was in cash or check, and the specific circumstances surrounding the delivery, does not make any difference.
The defense counsel argues in the appeal that since the defendant, upon request from Persons I and II, merely introduced them to Person V, a close acquaintance of the mayor, his conduct does not constitute 'bribery for exertion of influence' provided in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes. Rather, considering the defendant's status in the Party, his political influence over Person V, the chairman of the Goyang City district chapter of the same Party, and over the mayor elected via nomination by the same Party, it follows that the defendant did not merely introduce Persons Ⅰ and Ⅱ to Person V, as a third-party, who could induce an official, the mayor of Goyang City. As a matter fact, the defendant himself lobbied the mayor through Person V. The Supreme Court Judgment 99Do3115 delivered on October 14, 2000 cited in the appeal, is different from this case with respect to the facts, and therefore cannot be properly applied to this case.
(3) Therefore, despite the fact that the court below, by allowing Persons I's and II's the statement documents whose voluntariness is doubtful to be admitted as evidence, and by adopting them to support the guilty judgment, erred in adjudicating the admissibility of evidence, and in that it did not pay the necessary attention to the credibility of Person I's first testimony in the trial court, the guilty judgment can be affirmed because the remaining evidence is enough to confirm a guilty judgment. Thus, the grounds for appeal cannot be accepted.
3. Consequently, the appeal on the part of the court below's judgment that found the defendant guilty of bribery for exertion of influence regarding his receipt of 30 million won around February, 1997 has justifiable reasons, while the appeal on the part of the court below's judgment that found the defendant guilty of bribery for exertion of influence regarding his receipt of 10 million won does not have justifiable reasons. Since the court below found the defendant guilty on both charges and imposed a concurrent single sentence as 'concurrent crimes' pursuant to Article 37 of the Criminal Code, the judgment of the court below shall be reversed in its entirety and this case shall be remanded to the court below. The judgment is delivered with the assent of all Justices who review the appeal.
Justices Park Jae-yoon (Presiding Justice)
Suh Sung
Lee Yong-woo (Justice in charge)
Bae Ki-won
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