[특정범죄가중처벌등에관한법률위반(뇌물)·뇌물수수][미간행]
[1] The meaning of duties in the crime of bribery and the method of determining whether specific acts belong to the duties of a public official
[2] The case affirming the court below's decision that found the defendant not guilty of the charges of bribery on the ground that the professor of the Seoul National University and the Seoul National University University Hospital were treated as a detention house and prepared a medical certificate and reply to the fact-finding by the court cannot be deemed as an act closely related to the duties of professor of the Seoul National University University, a public educational official in the duty of medical treatment as a doctor and the duty of professor of the Seoul National University.
[1] Article 129 of the Criminal Act / [2] Article 129 of the Criminal Act
[1] Supreme Court Decision 2001Do670 decided May 31, 2002 (Gong2002Ha, 1602)
Defendant
Prosecutor
Law Firm Chungcheong, Attorneys Kim Jin-jin et al.
Seoul High Court Decision 2004No584, 1215 (Joint), 2966 (Joint) decided January 28, 2005
The appeal is dismissed.
The duties referred to in the crime of bribery include not only the duties under the jurisdiction of the public official, but also the acts closely related to or in fact engaged in the duties. However, whether specific acts belong to the duties of the public official or not shall be determined by taking into consideration the practical aspects of the public official’s duties and the relation with the duties that the public official should perform, together with the formal aspects that the act was performed as part of the public official. (See Supreme Court Decision 2001Do670, May 31, 2002, etc.).
Comprehensively taking account of the evidence adopted by the lower court, the Defendant continued to serve as the professor of the Seoul University on May 7, 1984 as the professor of the Seoul University and continued to serve as the professor of the Seoul University and the Seoul University University. The Defendant provided medical treatment to Nonindicted 1 on six occasions at the request of Nonindicted 1’s wife and provided a medical certificate to the Seoul University, and sent a reply to the fact-finding by the court about the request for the suspension of the execution of detention. In so doing, the Defendant appears to have received KRW 15 million in total from Nonindicted 2 on four occasions in the process of giving medical treatment and preparing a medical certificate from the Seoul University, on the grounds that the Defendant’s request was not closely related to the duty of the professor of the Seoul University, and that the Defendant’s request for medical examination and treatment was not closely related to the duty of the professor of the Seoul University and the professor of the Seoul University. In so doing, the Defendant appears to be closely related to the duty of the professor of the Seoul University and the professor of the Seoul University.
In light of the above legal principles and records, the above measures of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to job relationship in the bribery.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-hyung (Presiding Justice)