How Far Can the Giver's Word Be Trusted Where Money Changed Hands Without Physical Evidence? The Credibility of a Giver's Statements and Their Retraction in Court

Question

In bribery, brokerage-bribery and illegal political funds cases, cash often changes hands directly, so that sometimes no objective physical evidence such as records of account transfers is left behind. In such cases, the core evidence of guilt becomes the statement of the person who says that he or she gave the money or valuables. Article 129(1) of the Criminal Act punishes a public official or arbitrator who receives, demands or promises to accept a bribe in connection with his or her duties, and Article 132 punishes a public official who, by taking advantage of his or her position, receives, demands or promises to accept a bribe in connection with good offices concerning a matter falling within the duties of another public official. Article 45(1) of the Political Funds Act provides that a person who contributes or receives political funds by a method not prescribed by that Act shall be punished by imprisonment with labour for not more than five years or by a fine not exceeding KRW 10 million.

The person who says that he or she gave the money or valuables is usually liable to punishment as well. Article 133(1) of the Criminal Act punishes a person who promises, gives or manifests an intention to give a bribe referred to in Articles 129 to 132, and Article 45(1) of the Political Funds Act likewise makes both the person who contributes and the person who receives liable to punishment. The giver may also be under investigation on other charges. Because such a statement may be coloured by self-interest, the question arises how proof beyond a reasonable doubt, as required by Article 307(2) of the Criminal Procedure Act, and the principle of free evaluation of evidence under Article 308 deal with that statement.

This brief separates four questions. First, what conditions must a giver's statement satisfy for guilt to be found on that statement alone, without physical evidence? Secondly, where a substantial part of a statement that money was given on several occasions has been shown to be unreliable, how is the remainder to be viewed? Thirdly, where a giver retracts in court a statement made to an investigative agency, which statement is to be given weight? Fourthly, must even the date and time of the offence stated in the indictment be strictly proved?

This brief sets out the strands of the decision criteria only within the scope of what the Holdings and the Summary of Judgment of three Supreme Court judgments state. It does not determine the guilt or innocence of any particular person, nor does it reach a conclusion on the credibility of any particular statement. Because the provisions on the admissibility of statements have been partly amended since those judgments, the brief also notes that the law in force at the time of the conduct and at the time of trial must be checked separately.

Material to check

First, Articles 307 and 308 of the Criminal Procedure Act. Article 307(1) provides that facts shall be found on the basis of evidence, and Article 307(2) provides that the facts constituting an offence shall be found only upon proof beyond a reasonable doubt. Article 308 provides that the probative value of evidence shall be left to the free judgment of the judge. All three judgments cite Article 308 as a reference provision and take as their starting point that free evaluation of evidence operates within the limits of logic and the rules of experience.

Secondly, the provisions that distinguish the admissibility of a statement from its probative value. An assessment of credibility presupposes that the statement is admissible. Following an amendment on 4 August 2026, the heading of current Article 312 of the Criminal Procedure Act was changed to 'Records, etc. Prepared by Judicial Police Officers' and paragraph (1) was deleted; paragraph (4) sets out the requirements for the admissibility of a record prepared by a judicial police officer containing the statement of a person other than the defendant (lawful procedure and form; proof that the record is identical to what was stated, by the testimony of the original declarant or by objective means such as video recordings; an opportunity to examine the original declarant; and circumstances of particular reliability). Because what was at issue in the 2013Do11650 judgment was a statement made during questioning upon a summons by the prosecution, the provisions that applied to records prepared by prosecutors at that time must be checked separately against the law in force at the time of the conduct and at the time of trial.

Thirdly, the record of the investigation process. Article 244-4(1) of the Criminal Procedure Act requires that the time of arrival at the place of questioning, the times at which questioning began and ended, and other matters necessary to verify the progress of the questioning be recorded in the record of interrogation of the suspect or in a separate document and bound into the investigation file, and Article 244-4(3) applies this mutatis mutandis to the questioning of persons other than the suspect. Following the amendment of 4 August 2026, the subject of current paragraph (1) is the judicial police officer. The 2013Do11650 judgment cited this provision as a reference provision, and the dissenting opinion raised the question of credibility where the process of preparing a record of statement departed from the standard form of investigation.

Fourthly, whether objective materials exist. The judgments set their criteria on the premise that there is no objective physical evidence such as financial records. Accordingly, one may first check whether there are materials independent of the statement, such as account transaction histories, currency exchange records, entry records, schedules, or ledgers concerning the raising of funds, and, if so, which parts of the statement they match and which parts they contradict. In the case underlying the 2010Do14487 judgment, the issue was that the statements concerning the timing and method of giving the money, the source of the foreign currency and the exchange process were inconsistent over time or contradicted one another, and in part did not accord with the objective circumstances.

Fifthly, the giver's situation. The 2008Do8137 and 2010Do14487 judgments specifically address the case in which the giver is suspected of an offence and an investigation into it may be opened or is under way. Arranging in chronological order the time at which the investigation into the giver began, the times of the statements, the outcome of the disposition, and the relationship with other cases brings to light circumstances that may have influenced the statements.

Sixthly, the evolution of the statements. One can tabulate how many times and with what content the same person made statements to the investigative agencies, what he or she maintained and what he or she retracted in court, and what reasons he or she gave for the retraction. In the case underlying the 2013Do11650 judgment, the representative director of the company identified as the giver stated, when questioned upon a summons by the prosecution, that he had raised funds and provided them as political funds; before the court of first instance, however, he admitted raising the funds but denied providing them, and gave a different account of how the funds had been used.

Possible readings

The first point of divergence is the independent probative value of the giver's statement. One reading holds that, if the statement is specific and consistent, it can ground a conviction even without physical evidence. Another reading holds that, in view of the giver's interests and position in the investigation, there must be other materials corroborating the statement. The judgments, while presupposing that guilt may be found on the statement alone, laid down the requirement that the statement must be admissible and must have credibility sufficient to exclude reasonable doubt. As factors in assessing credibility, they list the reasonableness of the content of the statement itself, its objective plausibility, its consistency over time, the character of the declarant, and whether the declarant stands to gain any interest from the statement.

The second point of divergence is the repercussion of rejecting part of a statement. One reading evaluates the statement concerning each occasion of giving independently, so that only the unreliable occasions are excluded and the remainder may be accepted as it stands. Another reading holds that, where the same person stated that he or she gave money on several occasions and a substantial part of that account has collapsed, the credibility of the statement as a whole has been shaken, and that accepting the remainder requires a special ground for believing that part alone. The 2008Do8137 judgment adopted the latter reading.

The third point of divergence is how to deal with conflicting statements. Where the statements of the giver and of the defendant each contain some truth and some falsehood, exaggeration, distortion or error, one possible approach is to believe every statement that fits the facts charged, and to reject every assertion of the defendant, on the ground that part of the giver's statement is reliable. The 2010Do14487 judgment regarded this as a leap of logic and required an effort to grasp the substance of the case by sifting out falsehood and the like from the conflicting statements and combining the truths that remain.

The fourth point of divergence is the relationship between statements made to investigative agencies and statements made in court. One reading holds that, in light of the purpose of the principle of trial-centred proceedings and the hearsay rule, rejecting a statement made in court, under oath, after cross-examination and subject to liability for perjury, in favour of a statement made to an investigative agency requires objective materials supporting the latter, and that, absent a clear reason for the change in the statement, greater weight should be given to the statement in court. Another reading holds that, where there are circumstances making the statement in court unreliable, the credibility of the statement to the investigative agency is not negated merely because it was retracted, and that the reasonableness and objective plausibility of the statement, its consistency, the interests involved and corroborating circumstances must all be examined. In the en banc judgment 2013Do11650, the former reading is that of the dissenting opinion and the latter that of the majority opinion.

The fifth point of divergence is the scope of what must be proved. There may be a reading that, once the main thrust that money changed hands is established, some discrepancy in the details of date or place is acceptable. The 2010Do14487 judgment held that the subject of strict proof includes all the specific facts constituting the offence stated in the indictment; that, in particular, the date and time of the offence specified in the facts charged must be found as so specified; and that the mere probability that the offence was committed at another time does not amount to proof.

Although the three judgments used the same factors of assessment, their conclusions differed according to the case. The 2008Do8137 judgment reversed, among other things, the conviction part of the judgment below, and the 2010Do14487 judgment reversed the judgment below, whereas the 2013Do11650 judgment upheld the lower court's finding of guilt. Whether a given statement satisfies those factors remains for the reader to judge after checking the individual record, and this brief does not reach a conclusion on the credibility of any particular statement.

What the decisions held

Supreme Court Judgment 2008Do8137 delivered on 15 January 2009 held that, where the issue is whether money was received, the defendant denies having received it and there is no objective physical evidence such as financial records, a conviction based solely on the statement of the person who says that he or she provided the money requires not only that the statement be admissible but also that it have credibility sufficient to exclude reasonable doubt. Where objective circumstances have come to light showing that a substantial part of statements that money was provided on several occasions cannot be believed as they stand, the Court stated that "the credibility of the statement that money was provided on several occasions must be regarded as having been substantially undermined as a whole", and held that accepting the remaining part requires that "special circumstances capable of dispelling reasonable doubt must exist". In a case of bribe-taking by officials of the Ministry of Finance and Economy, the Court held unlawful the judgment below, which had rejected the statements concerning a substantial amount while believing the statements concerning the remaining smaller amount, and reversed, among other things, the part convicting some of the defendants and remanded the case to the Seoul High Court.

Supreme Court Judgment 2010Do14487 delivered on 28 April 2011 restated the same standard and held that, where the giver is suspected of an offence and an investigation may be opened or is under way, it must be examined whether efforts to escape the resulting predicament may have influenced the statement, even if suspicion of coercion or inducement does not reach the level at which admissibility is denied. The Court also stated that "the date and time of the offence specified in the facts charged is a principal object of the defendant's exercise of the right of defence, and therefore the facts constituting the offence must be found, through strict proof, as so specified". With respect to conflicting statements, it stated that the judge at the fact-finding instance "must endeavour to find the truth, excluding falsehood, exaggeration, distortion and error, and to grasp the substance of the case by combining those truths". In respect of the facts charged that a sitting mayor had accepted bribes in foreign currency on three occasions in his office, the Court reversed the judgment below, which had selectively believed only those parts of the givers' statements that fitted the facts charged, and remanded the case to the collegiate division of the Changwon District Court (main court).

The majority opinion in the en banc Supreme Court Judgment 2013Do11650 delivered on 20 August 2015 stated that Articles 307(1) and 308 of the Criminal Procedure Act leave to the judge's free evaluation the selection and use of the necessary evidence from among admissible evidence and the assessment of its substantive value in finding facts, and held that, so long as logic and the rules of experience are not contravened, the judge may adopt evidence and find facts by free evaluation. In respect of the facts charged that the defendant, a member of the National Assembly, had received approximately KRW 900 million in illegal political funds on three occasions from B, the representative director of Company A, the majority opinion stated that "in circumstances where B's statements in court cannot be believed, the credibility of B's statement to the prosecution that he provided the raised funds to the defendant as political funds cannot be negated merely because B retracted that statement in court", held that the credibility of the statement to the prosecution concerning the use of the funds could be accepted upon examining the various circumstances as a whole, and dismissed all the appeals. The dissenting opinion held that rejecting the statement in court and relying on the statement to the investigative agency as evidence requires objective materials supporting the latter, and that "as a matter of principle, unless a clear reason justifying the change in the statement appears, greater weight should be given to the free statement made in court even at the risk of liability for perjury".

Practical checklist

This section is not advice but a set of questions that may be asked when checking the record. First, one may ask whether physical evidence exists. One may check whether there are financial records, currency exchange records, or entry and schedule records independent of the giver's statement and, if so, compare them item by item with the date, place, amount and method in the statement.

Secondly, one may ask about the giver's situation. One may set out whether, at the time of the statement, the giver was under investigation, or was likely to be investigated, on any charge, what the outcome of the disposition in that case was, and how the timing of the statement and the timing of the disposition interlock. The common starting point of the judgments is that traces of coercion or inducement serve as material for assessing credibility even if they do not reach the level at which admissibility is denied.

Thirdly, one may ask for the statement to be broken down. One may divide the statements concerning multiple occasions of giving by occasion and tabulate which occasions conflict with the objective circumstances, what proportion of the whole the rejected parts represent, and what grounds there are for believing the remaining parts on their own.

Fourthly, one may ask about the evolution of the statements and the specification in the indictment. One may check the differences between the statements to the investigative agencies and the statements in court, the reasons for the retraction, and whether a record of the investigation process (the times of questioning and its progress) exists, and compare whether the date, place and method specified in the indictment match the evidence exactly. This is no more than a list of materials to check; the reader draws the conclusion.

Glossary

The principle of free evaluation of evidence is the principle that leaves the probative value of evidence to the free judgment of the judge (Article 308 of the Criminal Procedure Act). The majority opinion in the 2013Do11650 judgment identifies as its limits cases that contravene logic and the rules of experience, such as rejecting without reasonable grounds evidence of sufficient probative value, or adopting and using without reasonable grounds evidence that clearly contradicts objective facts.

Admissibility is the qualification of evidence to be used as evidence, whereas credibility or probative value concerns how far admissible evidence supports a fact. The judgments discussed in this brief deal with the credibility of statements whose admissibility has not been denied.

"Giver of money or valuables" is the expression used in the judgments for a person who states that he or she gave money or valuables. Such a person's interests are in question because he or she may personally be liable to punishment for giving a bribe (Article 133 of the Criminal Act) or for contributing political funds (Article 45(1) of the Political Funds Act).

The principle of trial-centred proceedings and the principle of substantive direct examination refer to the principles of criminal procedure that place the centre of fact-finding in examination in open court. The majority and dissenting opinions in the 2013Do11650 judgment both referred to these principles while evaluating differently the relationship between statements in court and statements to investigative agencies.

Sources and limitations

The source of the provisions is the current texts on the National Law Information Center. Articles 244-4, 307, 308 and 312 of the Criminal Procedure Act (effective 2 October 2026, Act No. 22009), Articles 129, 132 and 133 of the Criminal Act (effective 2 October 2026, Act No. 22007) and Article 45 of the Political Funds Act (effective 1 July 2026, Act No. 21578) were checked on 16 October 2026.

The source of the judgments is the Holdings, the Summary of Judgment and the operative part of Supreme Court judgments 2008Do8137, 2010Do14487 and 2013Do11650 as published on the National Law Information Center. The facts of the cases have been reproduced only to the extent that they appear in the Holdings and the Summary of Judgment; the specific content of the statements of the givers and the defendants, and the lists of evidence in the courts below, were not checked.

The text of Article 129 of the Criminal Act bears a notation of a decision of limited unconstitutionality by the Constitutional Court, and the text of Article 45 of the Political Funds Act bears a notation of a decision of nonconformity with the Constitution. These decisions are not directly related to the issue of this brief, the credibility of statements, and have therefore not been discussed; however, they should be considered when checking the applicable provisions in an individual case. The aggravated punishment provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes and of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes were not checked for this brief.

Points left open

Among the decision factors for assessing the credibility of a donor's statement, the Summary of Decision does not concretely state with what materials 'his character as a human being' is to be determined. How circumstances such as a criminal record, the attitude of statements made in other cases, and business interests enter into this factor remains an open question.

It is also not settled what portion of the entire statement is indicated by the 'substantial' part of the statement on the provision of money spoken of in Supreme Court Decision 2008Do8137. Whether the criterion is the amount or the number of occasions, and how to view cases in which the rejected portion and the remaining portion differ in character, may be contested in each Case.

The majority opinion and the dissenting opinion in Supreme Court Decision 2013Do11650 placed different weight on the relationship between statements made to investigative agencies and statements made in court. If, following the amendment on August 4, 2026, which reorganized the transcript provisions of the Criminal Procedure Act, the manner in which statements made at the investigative stage are brought before the trial changes, it also remains to be seen in what form this discussion will continue.

Where Article 244-4, which governs the Records of the investigation process, has not been observed, there remains room to clarify whether this is a matter of admissibility of evidence or a matter of credibility and, if it is a matter of credibility, what weight it carries.

When to reconsider

If the Evidence provisions of the Criminal Procedure Act or the relevant provisions of the Criminal Act and the Political Funds Act are amended, or if a new determination of the Supreme Court on the criteria for assessing the credibility of statements by providers of money and goods is handed down, this white paper will be rewritten.

At that time, the partial rejection of statements and the assessment of recanted statements will be reorganized anew within the scope stated in the Holdings and the Summary of Decision of the original text of the judgment.

Statutes referred to

• 형사소송법 제244조의4, 제307조, 제308조, 제312조
• 형법 제129조, 제132조, 제133조
• 정치자금법 제45조

Decisions referred to

• 대법원 2009. 1. 15. 선고 2008도8137 판결 · Decision ledger
• 대법원 2011. 4. 28. 선고 2010도14487 판결 · Decision ledger
• 대법원 2015. 8. 20. 선고 2013도11650 전원합의체 판결 · Decision ledger

Verification status

The provisions cited (Articles 244-4, 307, 308 and 312 of the Criminal Procedure Act; Articles 129, 132 and 133 of the Criminal Act; Article 45 of the Political Funds Act) were checked on 16 October 2026 against the current texts on the National Law Information Center. The judgments cited (Supreme Court 2008Do8137, 2010Do14487 and 2013Do11650) were checked against the Holdings, the Summary of Judgment and the operative part of the original judgments on the National Law Information Center.