A. Legal principles

As long as the defendant was disqualified for appointment as a public official at the time of appointment, the appointment of the defendant is null and void, and even if the defendant was not a public official at the time of acceptance of each bribe of this case, the court below erred by misapprehending the legal principles and adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant (one year and four months of imprisonment, a fine of 8 million won, additional collection of 10 million won) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

1) The lower court also asserted the same purport as the grounds for appeal, and the lower court rejected the above assertion on the ground that the Criminal Act stipulates a crime concerning a public official, such as bribery, is aimed at maintaining the prestige of public duties and the fairness of performing duties, and protecting the trust of the people, as in the case of the Defendant, who was appointed by a person who has the authority to appoint under the original Acts and subordinate statutes and served as a public official, and later, even in the case where the initial procedure for appointment is proved to be null and void because it violated the relevant Acts and subordinate statutes, the public official’s consolation and performance of duties should be maintained until a flexible declaration or equivalent measure is taken, and the public’s trust in performing duties should be protected. Therefore, it is reasonable to view the Defendant as a public official under Article 129 of the Criminal

2) In contrast, penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, the interpretation of penal provisions does not exclude a teleological interpretation in light of the legislative intent, purpose, legislative history, etc. of the law unless it goes beyond the ordinary meaning of the legal text (see Supreme Court Decision 2002Do2363, Jan. 10, 2003).

On the other hand, Article 129 of the Criminal Act refers to a public official under the State Public Officials Act and the Local Public Officials Act, and a person engaged in the affairs of the State or local governments and public corporations equivalent thereto, other than those to be regarded as a public official, and whose contents of labor are not limited to mere mechanical or physical, pursuant to statutes (see Supreme Court Decisions 2000Do4593, Nov. 22, 2002; 2010Do14394, Mar. 10, 201).

In light of the above legal principles, if a person is appointed by a person who has the authority for appointment under the laws and regulations and takes charge of official duties, regardless of whether he or she is stipulated in the above laws and regulations, the person who is engaged in official duties under the above Acts and subordinate statutes. The legal basis of the law is only necessary to appoint the person to whom the authority for appointment has the authority to appoint him or to have the authority to entrust him with official duties, and it does not necessarily require that the person who has the authority to appoint him be in charge of official duties. The crime of bribery takes the legal interest of the public official's non-purchase of official duties and the process of performing official duties and the trust in society. Even if the grounds for disqualification are revealed to be disqualified after the appointment, the validity of official duties performed by the public official is not naturally null and void. Thus, even if the defendant does not constitute a public official under the State Public Officials Act and the Local Public Officials Act at the time of each of the acceptance of a bribe in this case, the court below's determination that the defendant did not have an excessive influence on the public official duties and the defendant cannot be seen as a person.

B. Determination on the assertion of unfair sentencing

Although there is no record of criminal punishment for the same crime and the past 40 years, there is a favorable condition that the defendant has served as a public official in good faith for about 38 years, these circumstances are considered in the original trial. However, there is no change of circumstances in the original trial. Meanwhile, each of the crimes of this case is that the defendant, who is a public official, receives money and valuables equivalent to 10,40,000 won in total from construction business operators in the process of constructing the apartment facility improvement project in which he supervises himself, and the defendant actively demands a bribe, and the money and valuables that are given and received with a high business relation, are large and large, and the citizen's trust is significantly damaged, the nature of the crime is serious. Nevertheless, it is not deemed that the defendant seriously reflects the defendant's wrong acts, such as not recognizing each of the crimes of this case from the original trial to the final trial. In the case of a fine, the court below sentenced the lowest punishment among the punishment within the scope of punishment by one time, and there is no reason, motive, circumstance, etc. of the defendant's and circumstances following the criminal punishment of this case.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yoon Jin-sap (Presiding Judge)