업무상횡령등
The judgment below
Of them, the part against Defendant A shall be reversed.
Defendant shall be sentenced to a fine of KRW 60,000,000 for one year and six months of imprisonment.
1. Summary of grounds for appeal;
A. As to the facts of receiving a bribe of KRW 25,436,00 from misunderstanding of the facts and legal principles, ① the said money falls under the so-called “reward rebates (an act of receiving a refund from a business entity by entering into a contract with a business entity in advance with an excessive amount)” from B selling a metropolitan spraying to LF, and not constitutes bribery. ② Even if the said money is not rebates, the said money was delivered to LF under the pretext of the defective repair of a metropolitan spraying. Thus, the Defendant did not have any acquisition intent to receive the said money as a bribe, and ③ there was no evidence supporting the fact that the Defendant received the said money as a bribe. < Amended by Act No. 1083, Jun. 2, 2011; Act No. 10800, Jun. 13, 2011>
Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, which erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
B. The sentence sentenced by the lower court (2 years of imprisonment, 60 million won) is too unreasonable.
2. Determination:
A. As to the assertion of misunderstanding of facts and legal principles, whether a public official constitutes rebates of KRW 25,436,00 (hereinafter “the instant money”) received from B (i) when entering into several contracts for the performance of construction works or for the purchase of goods with the pertinent construction business operator, etc., whether the nature of the money is deemed as a bribe received in relation to the public official’s duties, or whether the money was deemed as an embezzlement (national treasury loss) by entering into a contract with the construction business operator, etc. with the construction business operator, with the intention of the parties who granted and received the money, the content and nature of the contract, the ratio between the contract amount and the amount received, and the amount of the received money.