May a bribery conviction rest on the giver's statement alone, believing only the parts that fit the indictment? Decision 2010Do14487 on proving 'all of the concrete facts charged' beyond reasonable doubt

Question

Article 307 of the Criminal Procedure Act provides that facts must be established by evidence and that the facts of a crime must be proved to a degree that leaves no reasonable doubt, while Article 308 leaves the probative value of evidence to the judge's free judgment. Article 129(1) of the Criminal Act punishes a public official or arbitrator who receives, demands or is promised a bribe in connection with his duties, and Article 133(1) punishes the person who promises, gives or indicates a willingness to give such a bribe. When the person named as the recipient denies receipt and there is no objective evidence, the question is how far the giver's testimony alone can carry the prosecution's proof.

Decision 2010Do14487 raises that question in the case of an incumbent mayor indicted for receiving bribes in foreign currency on three occasions in his office. Non-party 1 and Non-party 2 were named as the persons who gave the money; there was no objective physical evidence of receipt; and the court below credited their statements and upheld the conviction. The Supreme Court set that judgment aside and remanded the case.

Material to check

The statutes are Articles 307 and 308 of the Criminal Procedure Act and Articles 129 and 133 of the Criminal Act. The current text of Article 307 records that the article was wholly revised on 1 June 2007; Article 133 records that it was wholly revised on 8 December 2020; and the current text of Article 129 records a decision of the Constitutional Court (2011Hun-Ba117, 27 December 2012) on its interpretation as applied to the commissioned members of a review committee under a former special Act. None of those points is at issue in the decision, which cites Articles 129(1) and 133 and Articles 307 and 308.

The cases are the decision itself and the precedents it cites. Decision 2000Do5701 (11 June 2002) and Decision 2008Do8137 (15 January 2009) state the requirements for convicting on the giver's testimony alone; Decision 2005Do4202 (14 February 2008) states the same requirements in shorter form; and Decision 2009Do1151 (22 July 2010) states the test for the credibility of a confession and the prosecution's burden of proving the facts charged. The decision also cites Decision 2008JaeDo11 (En Banc), giving it as a judgment of 20 January 2011; the text read for this brief opens with an order of 29 October 2010 on a petition for retrial in the so-called 'Progressive Party case'.

Possible readings

The first rule the decision states, read with Articles 307 and 308, concerns the degree of proof. The facts of a crime must be established by strict evidence that gives the judge confidence leaving no room for reasonable doubt; if the prosecution's proof does not reach that degree, the judge must decide in the defendant's favour even where the defendant's account or excuse is inconsistent or unconvincing and raises a suspicion of guilt. That strict proof covers all the concrete facts stated in the indictment. Because the time of the offence specified there is the main focus of the defendant's defence, the offence must be proved as specified, and a mere likelihood that it was committed at some other time does not prove the fact charged.

The second rule is stated for the case where the person named as the recipient of money or goods denies receipt and there is no objective evidence such as financial records. To convict on the giver's testimony alone, that testimony must not only be admissible but also be credible enough to exclude reasonable doubt. In judging that credibility, the court must consider not only the rationality, objective soundness and consistency of the statement itself, but also the giver's character and whether he has any interest in making the statement. In particular, where he is suspected of a crime and an investigation may be opened or is already under way, the court must also consider whether his efforts to escape that plight may have influenced the statement, even where any suspicion of pressure or inducement does not go so far as to make the statement inadmissible.

The third rule concerns statements that mix truth with falsehood, exaggeration, distortion or mistake. The judge who tries the facts must sift the truth from the conflicting and contradictory statements of the giver and the defendant, and piece those truths together to grasp the substance of the case. If, without making that effort, the court credits everything the giver said that fits the indictment and rejects all of the defendant's contrary account merely because part of the giver's statements is credible, that is a logical leap, no different from crediting the whole account of a defendant who denies the charge because part of it is credible; a conclusion reached in that way cannot be accepted as resting on sound reasoning.

What the decisions held

Decision 2010Do14487 set aside the judgment of the Changwon District Court of 14 October 2010 (2010No785) and remanded the case to the collegiate bench of the Changwon District Court. The court below had found, on the statements of Non-party 1 and Non-party 2, that Non-party 1 delivered an envelope containing USD 5,000 on one occasion around the time of the defendant's business trip to Hong Kong, that Non-party 2 delivered an envelope containing USD 5,000 on one occasion at some point between the two trips, and that Non-party 1 delivered an envelope containing USD 10,000 on one occasion around the time of the business trip to Europe, so that USD 20,000 had been delivered at the times, in the manner and in the amounts charged. It relied on the relative consistency of their accounts of the times, the specific detail they gave of how the envelopes were left in the mayor's office, and the fact that USD 100,000 in foreign currency cash had been prepared by about 19 September 2006.

The Supreme Court held that this was not acceptable. On timing, Non-party 1's account of the first delivery did not fit what he said he had said at the time, and the doubt raised by the fact that the reclamation-site visit he described took place only once, on 16 October 2006, was not removed; Non-party 2 at first gave a very specific time for the second delivery and later changed his evidence, but the court did not examine why; and the log and the mayor's schedule submitted by the defendant recorded no meeting for the second delivery at all. On the manner of delivery, the descriptions were not so specific that they could not have been invented, and the postures described were unusual. On the source of the dollars, Non-party 1's and Non-party 2's accounts changed to match the amendment of the indictment, converging on it, from an initial account of raising USD 20,000 to one of raising USD 100,000 and paying part of it over, while the way the company's foreign currency cash was built up matched the initial account of the USD 20,000 being raised first, and the court assumed that amount had been used first or that there was a specific reason to use more than it. Their own situation, including investigations into other offences and an inquiry into a suspected offence under the external audit law, also had to be taken into account. Selectively crediting only the parts of their statements that fit the indictment, without excluding the other possibilities, misunderstood the law on the degree of proof required in a criminal trial or, in breach of logic and the rules of experience, went beyond the limits of free evaluation.

Points left open

The decision fixes no rule that a giver's testimony can never be enough. It holds only that on the evidence before the court below reasonable doubt about the times, manner and amounts charged had not been excluded, and it leaves the case to be heard again; whether the conviction can stand on any further assessment of the record is not decided.

Of the three rules the decision states, only the second, on convicting on the giver's testimony alone, is expressly framed for the case where the alleged recipient denies receipt and there is no objective evidence such as financial records. The first rule, which requires strict proof of all the concrete facts in the indictment and of the specified time of the offence, and the third, on statements that mix truth with falsehood, are stated more generally. The decision does not answer how the second rule applies where financial records or other physical evidence exist, or how it applies to a defendant's own confession, for which Decision 2009Do1151 states a separate test. On partial crediting of a giver's account, Decision 2008Do8137, which the decision cites, answers the point for the situation it addresses: where a considerable part of the giver's statements cannot be credited, his credibility as a whole is substantially undermined, and the remainder cannot ordinarily be accepted on his testimony alone unless special circumstances, such as sufficient grounds to trust that part or corroborating evidence, remove reasonable doubt. The decision does not say what such special circumstances might be on facts other than those before it.

When to reconsider

We will revisit this brief if the court on remand finds the facts and that judgment is reviewed on appeal, if a later Supreme Court decision states, beyond the test in Decision 2008Do8137, when a giver's account may be partly credited, or applies these rules where objective evidence exists, or if Article 307 or Article 129 is amended.

Statutes referred to

• 형사소송법 제307조, 제308조
• 형법 제129조, 제133조

Decisions referred to

• 대법원 2011. 4. 28. 선고 2010도14487 판결 · Decision ledger
• 대법원 2010. 7. 22. 선고 2009도1151 판결
• 대법원 2002. 6. 11. 선고 2000도5701 판결
• 대법원 2008. 2. 14. 선고 2005도4202 판결
• 대법원 2009. 1. 15. 선고 2008도8137 판결 · Decision ledger

Verification status

The texts read for this brief were the current text of Articles 307 and 308 of the Criminal Procedure Act and Articles 129 and 133 of the Criminal Act, the published summary, holdings and full reasons of the decision, and the published holdings and summaries of the five precedents it cites, all read at the National Law Information Center on 24 October 2026. The decision lists Articles 307 and 308 as its reference provisions and states the standard of proof in its own words, as proof by strict evidence that gives the judge confidence leaving no room for reasonable doubt.