[특정범죄가중처벌등에관한법률위반(변경:뇌물수수·알선뇌물수수)·변호사법위반][공1983.10.15.(714),1442]
Whether a health care engineer of the Do School Education Committee is "the relationship in which he/she uses his/her status" in relation to health care and food guidance service;
A local health engineer in charge of the affairs concerning child meals and the physical examination of children and teachers in the Do Education Committee, in the social sports and health community of the Do, may not be deemed to have received a bribe in relation to arranging matters belonging to the duties of other public officials by taking advantage of his status as a public official, as long as he does not have any direct or indirect relationship with a local administrative assistant in charge of affairs prior to the business permission in the Do, such as the time when he is in charge of a business license in the Do Health and Social Bureau, and as long as he is not in a position to have any legal or factual influence
Article 132 of the Criminal Act
Supreme Court Decision 66Do403 Delivered on February 13, 1973 82Do403 Delivered on June 8, 1982
Defendant et al.
Defendants
Attorney Park Jong-hee, et al.
Daegu High Court Decision 81No498 delivered on March 19, 1982
The part concerning Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the Daegu High Court.
All appeals by Defendant 2 and 3 are dismissed.
The grounds of appeal are examined.
(1) As to Defendant 1’s grounds of appeal
According to the reasoning of the judgment of the court of first instance cited by the court below, Defendant 1 introduced the non-indicted 2 who applied for permission to conduct a business in Daegu City, using the position of the Social Sports and Health System, to Defendant 1, at the time of the introduction of the non-indicted 2 who was in charge of the affairs of permission to conduct an entertainment business and guidance in the Health and Food Sanitation System, and made a solicitation to easily consider it at the time of providing convenience and supervision of the business after permission to conduct an entertainment business, and it is clearly recognized that the non-indicted 2 was provided with entertainment for one and several times in return for such solicitation. However, the crime of mediation and bribery under Article 132 of the Criminal Act is an element for establishing a bribe to accept, demand or promise a bribe concerning the placement of matters belonging to another public official's duties by taking advantage of his position, and the "public official" used the position of the public official who is in charge of the affairs of the public official in question and the public health department's position of the public official in charge of the affairs of the public official in question and the record.
2. Defendant 2's grounds of appeal are examined.
According to the records, the Do governor is identical to the theory of lawsuit that the Do governor already delegated the authority to grant permission to the Kabae's business to the head of Daegu Mayor, etc. at the time of the instant case. However, the Do governor's "the Do governor shall thoroughly ensure the permission and management of food entertainment business and establish and manage the criteria for permission by City/Do" of the Minister of Health and Welfare on October 17, 1979, according to the order of the Do governor "the Do governor shall establish and manage the criteria for permission by City/Do", No. 366 of the notification of the Kaba's Do around December 8, 1979, and the head of the Si/Gun shall not issue a new permission in principle, but the head of the Kaba does not issue a new permission. In exceptional cases of permission, the Do governor's prior approval was approved after the Do governor's prior approval, and since the defendant 2 had been in charge of the affairs of the Do governor's prior approval to the Kababa's business.
The issue is groundless.
3. Defendant 3’s defense counsel’s grounds of appeal are examined.
Examining the evidence presented by the court of first instance in comparison with the records, the court below is justified in finding the facts constituting a crime against Defendant 3, and it cannot be said that there is no error of law in violation of the rules of evidence or in misunderstanding the legal principles on the violation of the Attorney-at-Law Act. The arguments are groundless.
Therefore, the part concerning Defendant 1 among the judgment below is reversed and remanded, and the appeal by Defendant 2 and 3 is dismissed. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young