[2] Where Defendant (the head of a local government) was prosecuted for receiving large cash from a constructor as a bribe, the case affirming the judgment of the court below that the Defendant cannot be deemed to have committed a bribe

[3] The standard for determining whether a public official's profit constitutes a bribe as an unfair profit having a quid pro quo relationship with his/her duties

[4] Whether the other party's crime of acceptance of bribe must be established in the establishment of the crime of offering of bribe (negative)

[2] Where Defendant (the head of a local government) was prosecuted for having received large cash from a constructor as a bribe, the case affirming the judgment of the court below holding that the Defendant cannot be deemed to have had the criminal intent of bribery in light of the following circumstances: (a) the two persons were indicted for having received large cash as a bribe; (b) there were no pro rata relationship or direct pending issues or specific solicitation to the extent that he would receive it as a bribe; and (c) the Defendant’s gift was delivered to an apartment used by his female family without being notified of the specific contents of the gift; and (d) reported it to the government agency immediately after confirming its contents

[3] Whether a public official’s profit constitutes a bribe as an unfair profit with a quid pro quo relation, or due to an exceptional consideration or a need for school division based on a personal-friendly relationship, and whether it is not related to the public official’s duty should be determined by considering the contents of the public official’s duty, the relationship between the public official and the provider of the profit, the circumstances surrounding the receipt of the benefit, and the type and value of the given benefit together with other circumstances.

[4] In order to establish the crime of offering of a bribe, the act of offering a bribe and taking the goods, etc. having monetary value from the other party is necessary, and it does not necessarily mean that the other party should establish the crime of acceptance of bribe.

1. As to the assertion of mistake of fact

The burden of proof for the facts charged in a criminal trial shall be borne by a public prosecutor, and the conviction shall be based on the evidence with probative value that leads a judge to feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2002Do6110, Feb. 11, 2003, etc.).

The court below held that it is difficult to find that the defendant, the Mayor of Incheon Metropolitan City, received 200 million won in cash from two non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's apartment building that he was involved in a bribe on August 24, 2004, and that he was "not receiving money" as a gift from Gwangju to the public prosecutor's office, and did not mention the specific contents of the gift and did not actually show it. The defendant did not know the fact that the non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted.

According to the records, the court below's finding of evidence and finding of facts are consistent with all of the facts established by the court below, and if the defendant, as shown in the facts established by the court below, has not reached a pro rata relationship or direct pending issue or specific solicitation to the extent that he will receive large cash as a bribe, and if he had to deliver a gift to the apartment used by his family without being notified of the specific contents of the gift but has reached an immediate report to the government office upon confirmation of its contents, there is no objective explanation as to the fact that the defendant could not disclose it at the risk of the threat of the above fact of the bribery due to other unavoidable reasons (the ground of appeal is presumed as a clean market or a politician, but it is hard to view that it is a reasonable explanation that the defendant would generally obtain it from the court below's finding that it is not reasonable for the defendant to the extent that the defendant would not be aware of the facts at the time of the above facts charged, such as the defendant's offering of the gift to the extent that he would not have been aware of the whole facts charged.

Therefore, we cannot accept the grounds of appeal that there is an error of law as alleged in the lower court’s findings and judgment on this point.

2. As to the assertion of misapprehension of legal principle

Whether or not a public official's profit constitutes a bribe as an unfair profit in relation to his duties, or as a result of an exceptional consideration in accordance with the social norms or an academic necessity in relation to personal relations, shall be determined by taking into consideration the contents of the official's duties, the relationship between the job and the provider of the profit, the circumstances of the receipt of the profit, and the time of the payment (see, e.g., Supreme Court Decisions 99Do4940, Jan. 21, 200; 98Do3697, Jun. 15, 200; 2004Do1442, May 28, 2004). In light of the above facts established by the court below, the court below affirmed the judgment below to the effect that the defendant did not refuse the request of the non-indicted 1, who intends to offer a gift only on the grounds of its stated reasoning, to the effect that it constitutes a bribe in relation to his duties under the recognition of ordinary and ordinary social norms.

In addition, in order to establish the crime of offering of a bribe, the act of offering a bribe and taking the goods, etc. of monetary value from the other party are necessary, and it does not necessarily mean that the other party should establish the crime of offering of a bribe (see Supreme Court Decision 87Do1699, Dec. 22, 1987). Thus, the judgment of the court below is justifiable in holding that the act of Nonindicted 1, who provided an emergency victim with cash of the above KRW 200 million, constitutes the crime of offering a bribe, does not necessarily constitute the crime of offering a bribe even to the defendant who did not have the knowledge of the nature of the goods that he intended to offer.

Therefore, we cannot accept the argument in the grounds of appeal on this point.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)