Supreme Court: "Prosecutor's Bribery Accusation by Complainant Does Not Automatically Invalidate Indictment"

The Supreme Court has ruled that even if the prosecutor in charge of the investigation received bribes from the complainant after indicting the suspect, the indictment itself cannot be considered illegal or invalid if the indictment was not fundamentally flawed.

The ruling emphasizes that if an indictment is always deemed illegal or invalid and dismissed solely because the prosecutor received bribes from a party related to the case after the indictment, the defendant could evade criminal responsibility due to incidental circumstances after the crime. Therefore, it is necessary to carefully examine whether the indictment was justified or if there were problems with the indictment before making a decision.

Supreme Court, Seocho-dong, Seoul.

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According to the legal community on the 1st, the Supreme Court's 2nd Division (Presiding Justice Lee Dong-won) recently upheld the lower court’s ruling sentencing Mr. A, who had been sentenced to 3 years and 6 months in prison for fraud under the Act on the Aggravated Punishment of Specific Economic Crimes, to 2 years and 6 months in prison in a retrial.

The court explained the reason for dismissing the appeal, stating that "there was no error in the lower court’s judgment such as violating the rules of logic and experience, exceeding the limits of free evaluation of evidence, abuse of prosecution rights, misinterpretation of the exclusionary rule on illegally obtained evidence, or contradictory reasoning."

Mr. A was arrested and indicted in May 2008 on charges including fraud, embezzlement in the course of business, and forgery of private documents under the Act on the Aggravated Punishment of Specific Economic Crimes. In May 2010, he was sentenced to 3 years and 6 months in prison in the retrial after remand, and the sentence was confirmed as is.

However, after learning belatedly that Prosecutor B, who investigated and indicted him, was convicted of receiving bribes such as money and entertainment from the complainant after indicting him, Mr. A requested a retrial in 2021.

According to Prosecutor B’s criminal judgment, on May 8, 2008, the day after indicting Mr. A, B received a check for 5 million won as a gratuity from Mr. C, the actual representative of the complainant company, at his office. Subsequently, B received checks ranging from 3 million to 5 million won three more times under the names of gratuities, Chuseok gifts, and farewell money.

He also received several rounds of entertainment involving hundreds of thousands of won (his personal share ranging from 570,000 to 1,210,000 won).

The Seoul High Court, which decided to commence the retrial, sentenced Mr. A to 2 years and 6 months in prison in July last year.

Mr. A’s side argued, "The police investigated this case and forwarded most of it with a no-charge opinion, but the investigating prosecutor agreed to receive bribes from the complainant side and conducted a biased investigation favorable to the complainant and unfavorable to the defendant, maliciously filing the indictment, thereby significantly exceeding the discretion of prosecution." They claimed, "Therefore, under Article 327, Paragraph 2 of the Criminal Procedure Act (when the procedure for filing an indictment violates legal provisions and is invalid), the indictment should be dismissed without substantive judgment on guilt or innocence."

Regarding this claim by Mr. A’s side, the court stated, "In specific cases, if the prosecutor indicted a case that should not have been indicted, or engaged in discriminatory or omitted indictments, it is necessary to find that the prosecutor who received bribes had an improper intent and dismiss the indictment without substantive judgment. However, if it is judged from the content of the case and evidence that the indictment was justified, the indictment cannot be considered illegal or invalid."

Furthermore, the court explained, "If indictments were dismissed without exception solely because the prosecutor received bribes from parties related to the case, the defendant could be exempted from liability due to incidental circumstances after the crime, which would be contrary to the goals and ideals of criminal justice, such as the proper exercise of criminal punishment through substantive truth-finding."

Specifically examining Mr. A’s case, the court judged, "Objectively reviewing the evidence collected up to that point, the indictment of Mr. A by the prosecutor itself was justified."

However, considering various circumstances, the court reduced Mr. A’s sentence by one year.

The court took into account the following factors in sentencing: ▲ Mr. A used most of the defrauded money as settlement funds and personally consumed very little ▲ significant damage recovery was achieved through court-ordered compulsory mediation ▲ the victim company expressed that it did not want punishment for the defendant ▲ the complainant company bribed the investigating prosecutor to pressure the defendant and related parties through criminal cases beyond filing civil lawsuits against business partners to recover damages ▲ the guilty verdict in the retrial was changed from 4.7 billion won worth of game machine fraud to 2.85 billion won worth of embezzlement of game machine sales proceeds.

The Supreme Court also found no problem with this judgment.

Meanwhile, Mr. A was known as a 'sponsor' and a middle and high school classmate of former Chief Prosecutor Kim Hyung-jun (age 53, Judicial Research and Training Institute class 25).

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