An appellate court has overturned a lower court's decision to dismiss the indictment of former Ssangbangwool Group Chairman Kim Sung-tae, who was charged with third-party bribery in connection with the company's 8 million USD illegal remittance to North Korea, and has ordered a retrial.

The Suwon High Court's Criminal Division 2 (Presiding Judges Kim Geon-woo, Lim Jae-nam, and Seo Jeong-hee) overturned the first trial's dismissal of the indictment today (July 10) in the appeal regarding Kim, who was charged with bribery and other offenses.

The court stated, "The legal interest protected by the Foreign Exchange Transactions Act is a national and economic interest, specifically the order of foreign exchange management, balance of payments, and currency stability. In contrast, the legal interest protected by the bribery charge in this case concerns the fairness of official duties and state functions; thus, the legislative purposes of the two crimes differ."

The court further explained, "The violation of the Foreign Exchange Transactions Act punishes those who remit foreign currency without the approval of the Governor of the Bank of Korea, while the bribery charge in this case punishes those who provide bribes to a third party, who is a public official, in exchange for illicit requests regarding their duties. The former involves an omission, while the latter involves an act. Even if the execution of the acts partially overlaps in that the defendant provided foreign currency to the other party, they cannot be considered a single act under the law, as they involve different constituent elements and protected legal interests."

The court added, "It appears that the separate crime of violating the Foreign Exchange Transactions Act was a means used by the defendant to achieve the primary criminal purpose of providing a bribe. In such a situation, even if there is identity in the constituent elements or a relationship of means and purpose between the two crimes, one must focus on the nature of the acts and the protected legal interests."

The court concluded, "Since the violation of the Foreign Exchange Transactions Act and the bribery charge in this case differ in legislative purpose, protected legal interests, acts, subjects, nature, and counterparties, it is difficult to view them as punishable under a single sentence pursuant to Article 40 of the Criminal Act. The two crimes are in a relationship of 'substantive concurrence' rather than 'ideal concurrence,' and the effect of the indictment for the Foreign Exchange Transactions Act violation does not extend to the bribery charges filed later."

Ideal concurrence refers to a case where a single act constitutes multiple crimes, while substantive concurrence refers to a case where a person commits multiple crimes through multiple acts.

Kim was indicted while under detention on charges including violating the Foreign Exchange Transactions Act for allegedly paying 5 million USD for Gyeonggi Province's North Korean smart farm support project and 3 million USD for the North Korea visit of then-Governor Lee Jae-myung in 2019. In July 2024, he was sentenced in the first trial to 2 years and 6 months in prison, and 1 year in prison suspended for 2 years for violating the Political Funds Act; he is currently undergoing appellate proceedings.

Immediately after the first trial's ruling, the prosecution additionally indicted Kim, viewing Ssangbangwool's North Korea remittances as third-party bribery for then-Governor Lee Jae-myung. However, the first trial court ruled that this constituted a duplicitous indictment and dismissed the case.

The court's reasoning was that the time, location, and recipient of the funds in the Foreign Exchange Transactions Act violation case were identical to those in the bribery case, placing them in a relationship of ideal concurrence.

In response, the prosecution argued during the trial that "while the acts of paying money to North Korea overlap between the Foreign Exchange Transactions Act violation and the bribery case under the Act on the Aggravated Punishment, etc. of Specific Crimes, the legislative purposes and criminal structures of the statutes are different, and the subjects of punishment also differ, making them independent crimes in a relationship of substantive concurrence."

Following the appellate court's decision to overturn the lower court's dismissal, the case will be remanded to the Suwon District Court for a substantive trial.

Meanwhile, Lee Hwa-young, former Vice Governor for Peace of Gyeonggi Province, who was indicted as an accomplice in this case, had requested an acquittal based on the first trial's dismissal of Kim's case.

However, the court had previously stated that it was still reviewing the request for acquittal, noting that "there are many other issues to consider."

The court's future judgment on this matter is expected to influence the trial proceedings regarding the third-party bribery charges against Lee Jae-myung, who was indicted as an accomplice in the same case.

Lee's trial has been suspended since his inauguration as president last year.

(Photo: Yonhap News)