(S) Acceptance of a bribe, and acceptance of a bribe

Attorney C, D

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

In light of the fact that the Defendant and the providers intended to utilize the Defendant’s personal legal professional ability in the performance of advisory services and other services, the Defendant did not receive “brains” as “price for the Defendant’s duties, such as providing convenience related to the work of the Ministry of Government Legislation,” and that the Defendant’s advisory fees, etc. received do not fall short of the Defendant’s contribution to the performance of advisory services and service, and was remitted money through the account, etc., the Defendant was

2) Unreasonable sentencing

In light of the fact that the selection of advisory and service performer was conducted fairly in accordance with the thorough expertise, experience, etc., the defendant also performed part of advisory and service faithfully, as a result, contributed to creating a good statute, and that the defendant acted in a rush and inappropriate manner as a public official, etc., the sentence of the court below (one year of imprisonment and two years of suspended execution) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) N-related

(1) A bribe listed in 1-1 and 1-2 annexed to the court below's judgment (hereinafter referred to as "crime list") shall be deemed a bribe.

A violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) is established, covering the whole act of giving and receiving.

Part 1-1 Nos. 1, 2, 7, 11, and 16 of the crime sight table (mainly, not guilty): Even if the defendant did not directly receive the price for the above service, it includes the price for other service received by the defendant.

(3) Part 1-1 No. 27 of the crime sight table (mainly not guilty): The consideration for the service received by the defendant shall also be included in the consideration for other service.

④ As long as the defendant was provided with advice and other services as an intention to accept a bribe in connection with his/her duties, even if there is a part of the defendant's provision of services, it cannot be denied a bribe as a whole, and the nature of the defendant's provision of services is not clearly distinguishable from the nature of the consideration for acts other than his/her duties and the case for acts other than his/her duties, in full view of the fact that it is impossible to clearly distinguish the nature of the defendant's provision of services from the consideration for acts other than his/her duties without any standards and methods that can objectively estimate the value of services provided by the defendant, the "gold won received by the defendant" itself constitutes a bribe.

B) Law Firm L related

① In light of the fact that various research services received by N law firm L in the name of L is ultimately a service related to the enactment and amendment of legislative bills, and that the Defendant is a legislative officer that examines legislative bills in the process of the enactment and amendment of legislative bills, etc., the Defendant’s act cannot be deemed as merely a “private act that uses specialized knowledge outside his/her duty” and is related to the Defendant’s duty.

(2) Table 1-2 Nos. 1 and 4 of crime sights (mainly not guilty): "gold won received by the defendant" refers to all the amounts.

C) V related

(1) Nos. 2-1 Nos. 2-2, 2-6 of the crime sight table (main and conjunctive innocence): The consideration for the service received by the defendant is also included in the consideration for other services.

② Criminal List 2-2 Nos. 8 and 10 (mainly, preliminary innocence): V is merely a "private act used outside the duty" because it is anticipated that he/she will assist in the future research service and other future research services, since he/she is expected to recommend him/her as a M advisory member, his/her duty relationship is recognized.

(3) A list of crimes 2-1 Nos. 2 through 12 (mainly not guilty): "gold won received by the defendant" constitutes a bribe.

D) Relation to the World Industry-Academic Cooperation Foundation

① Since the fear of crime 2-2 Nos. 7, 9, 12 (mainly, preliminary innocence): V is expected to assist in other research services in the future, it cannot be said that the duty relationship is recognized and that the expertise is merely a private act used outside the duty.

(2) Part 11 of the list of crimes: The amount received by the defendant constitutes a bribe.

e) AF-related

1. Table 3-1 Nos. 1 and 31 portion (mainly, preliminary, not guilty): If the defendant paid the consideration to the defendant on the ground that he/she expects that he/she would help in other research services in the future, even though he/she did not participate in this part of the service, he/she constitutes a bribe.

② Part 1 of crime sight table 3-2 Nos. 3-2 (mainly and conjunctive innocence): since money was paid in return for the provision of convenience, such as requesting the defendant to continue to receive services, it is recognized that business relationship is recognized, and it cannot be said that specialized knowledge is merely a private act used outside business.

F) Nos. 3-2, 2, and 5 of AK-related crime sight table (mainly not guilty): a bribe received by the defendant;

applicable to this section.

G) Part 4-1 of AM-related crime sight table and part 4-2 of AM list of crimes (main not guilty): "gold won received by the defendant" constitutes a bribe.

h) As to X Association

① Since the Defendant is expected to be able to assist in other research services in the future, it is recognized that the duty relationship is recognized, and the expertise is merely a "private act used outside of the duty", since it is anticipated that V will be able to assist in theme to recommend those recommended as M advisory members.

(2) 5 Nos. 2-2, 5 of crime sight table, 5 of crime sight table (mainly not guilty): "gold won received by the defendant" constitutes a bribe.

I) Part 6 of AR and AT-related crime sight table (mainly not guilty): The term "gold won received by the defendant" constitutes a bribe.

2) Unreasonable sentencing

Considering the fact that the defendant, who is a senior public official of the Ministry of Government Legislation, exercises influence over the selection of advisory members and the request for advisory services by using an opportunity to perform his/her duties, or provides convenience, such as divulging inside the Ministry of Government Legislation, and gives and receives large amounts of money in return, the defendant actually incurs a loss to the National Treasury equivalent to the amount that he/she receives by receiving the consideration by pretending to provide services on the matters belonging to his/her principal duties, and the defendant first demanded the consideration, etc. and led the crime,

2. Determination:

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) The judgment of the court below

The lower court determined that the Defendant was an advisory member of the Ministry of Government Legislation at the time of introducing AF 2's request for the following circumstances: (a) the Defendant was in a position to directly participate in M&D at the time of holding office as the head of G Group 2; (b) the Defendant was actually involved in the selection of advisory members; (c) the Defendant appears to have been sufficiently able to present directions or opinions on the work of other countries within the Ministry of Government Legislation at the time of holding office as the FF advisory member; (d) the number of advisory members of the Ministry of Government Legislation at the time of requesting the submission of AF 2's request to provide information on the list No. 2's duty and the number of offenses; and (e) the Defendant was an advisory member of the Ministry of Government Legislation at the time of signing the list No. 5's request for the provision of information on the list No. 2's request for the provision of information on the list No. 1's request for the provision of information on the list No. 2's request for the provision of information.

2) Determination of the immediate deliberation

A) As to business relationship and compensation relation

Since the legal interest of the crime of bribery is the process of performing the duties and the public trust in the society, the crime of acceptance of bribe is established when the number of money received from the public official's duties and the public official is in quid pro quo, and there is no need to consider the existence of solicitation and the quid pro quo relationship, and there is no need to specify the act of performance of the duties. Furthermore, the issue of which profit acquired by the public official constitutes a quid pro quo relationship, such as the contents of the public official's duties, the relationship between the provider of the duties and the benefit, whether there is a special relationship between both parties, and whether there is a special relationship between the parties, and the time of receiving the benefit. In light of the fact that the crime of bribery is the process of performance of duties and the trust in the society, whether the crime of bribery is suspected of being fair in the performance of duties due to the receipt of the benefit by the public official from the society should also be the basis for determining the division of bribery. In addition, the duties referred to in the crime of bribery include not only acts related to the duties under the control of the public official, but also acts, practices or actual involvement in the practice (see, etc.

In light of the above legal principles, the court below on the duty relationship and compensation relationship in consideration of the defendant's duty contents, the relationship between each donor and his duties, especially the circumstances where each donor received M Advice, etc., and the circumstances and time when the defendant received the benefit, etc.

The judgment is just and acceptable, and the above judgment does not affect the above judgment even if the witness AF and V's statement in the trial court was presented.

B) In the crime of bribery, whether the opportunity to provide advice or other services and to receive the consideration is a bribe includes not only money, goods, and other property interests, but also all tangible and intangible benefits sufficient to meet human demand desire (see Supreme Court Decision 2007Do620, Mar. 27, 2008, etc.).

Therefore, as long as the defendant's "opportune to provide advice and other services and receive the consideration thereof" itself is benefiting the defendant, it shall constitute a bribe, and even if the money and valuables actually received in return for the provision of service should exceed the defendant's contribution or the defendant's contribution was not required, the donor provided an opportunity to work by having the defendant participate in the performance of advisory services, etc., and even if the defendant was paid the consideration corresponding to the defendant's contribution, it shall not interfere with the above opportunity for the defendant to constitute a bribe.

C) As to intention

The establishment of the crime of bribery does not require a legal judgment that a public official receives tangible and intangible benefits, and that it constitutes a bribe. Thus, even if the defendant thought that he/she received money in return for the provision of his/her services and did not recognize that he/she received a bribe in return for his/her duties, it is merely an error in law, and there is no justifiable reason to believe that the act does not constitute a crime.

D) Ultimately, the Defendant’s assertion of mistake and misapprehension of legal principles is without merit.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

1) As to the argument that the "gold Won, received by the defendant," it constitutes a bribe (as to the remaining part except 1-1 Nos. 1-1, 2, 7, 11, 16, and 27 of the list of crimes, Nos. 1-2, 1-4 of the list of crimes, Nos. 2-1 through 12 of the list of crimes, Nos. 2-2 through 2-2 of the list of crimes, Nos. 5 and 11 of the list of crimes, Nos. 3-1 through 2-5 of the list of crimes, Nos. 3-2 through 5 of the list of crimes, Nos. 4-1 of the list of crimes, No. 4-2 of the list of crimes, No. 5 of the list of crimes, and No. 6

A) The judgment of the court below

The court below concluded a service contract with intent to accept acceptance of bribe and received the payment thereof

① In a case where the parties enter into a formal service contract for the purpose of receiving money, ② in a case where a service contract with a genuine meaning is concluded and a payment is made in excess of the value of the service provided, ③ in a case where various forms of benefits are provided through the performance of the service, the premise that there is a case where the Defendant provided various types of benefits through the performance of the service, and determined that the Defendant’s payment does not constitute a bribe in itself on the grounds that the service contract entered into between the Defendant and the donor was merely a nominal conclusion for acceptance of bribe, and that the service contract entered into between the Defendant and the donor was not concluded in consideration of the ability to review and examine a Bill, etc. received by the donor, the content and difficulty of M consulting and research services, the details of the service provided by the Defendant, including drafting, attending a meeting, the Plaintiff’s review and revision, etc., and the amount and ratio of the consideration received by the Defendant, such as advisory fees, etc. received by the donor.

B) Determination of the immediate deliberation

Considering the circumstances stated in the court below, in particular, the amount of the draft, amendment bill, etc. prepared by the defendant for the donor and the contents thereof are reasonable and faithful, and considering the actual use of the result of the service provided by the defendant by the donor, the defendant and the donor cannot be deemed to have entered into a service contract formally to receive a bribe, and the service provided by the defendant cannot be deemed to have entered into a service contract with the intent to receive a bribe, considering the fact that it is difficult for the defendant to replace with the professional ability as to the review, etc. of a bill, and that it is difficult to accurately evaluate the legitimate value of the service provided or contributed by the defendant, it is also difficult to conclude that the payment received by the defendant exceeds the justifiable value of the service provided by the defendant. Therefore, the judgment of the court below that the defendant cannot be viewed as a bribe is just and acceptable, and there is no error of law by misunderstanding facts

This part of the prosecutor's argument is without merit.

2) As to the assertion that the Defendant’s act cannot be deemed to be merely a “private act used outside his/her duties” and that his/her duty relationship and a quid pro quo relation are recognized (as to the remainder except 1-2/1 and 4 of the crime sight table, 1, 3, 4, 7 through 10, 12 of the crime sight table 2-2, 3-2 of the crime sight table, and 3-2/12 of the crime sight table 1)

A) The judgment of the court below

The lower court determined that: (a) all research services ordered by the government department, other than the Ministry of Government Legislation to which the Defendant belongs; (b) the donor appears to have been awarded a contract by himself/herself; and (c) the Defendant appears not to have assisted in the process of receiving the contract; (d) the process of drafting the Bill or the process of examining the Ministry of Government Legislation related to the above research services is not followed; or the Defendant’s act of providing the services is deemed not to have been in charge of examining the Bill as a legislative officer at the time of providing the services (in the case of research services listed in No. 2-2 No. 11 of the crime sight table 2-2, the ordering agency prepared the draft review as an incorporated Korean Association at the duty-free shop, an incorporated association, and the time when the Defendant received the consideration thereof on July 10, 2013; and (c) the Defendant received the request on the transitional provisions of the Enforcement Decree of the SP duty-free shop and N on July 10, 2013.

B) Determination of the immediate deliberation

Considering the above circumstances, particularly the content and degree of the service provided by the defendant, and the amount received in return, considering the above circumstances presented by the court below, although the defendant has the authority to take charge of reviewing legislative bills, etc. in the course of serving as the legislative officer of the Ministry of Government Legislation, or was selected by N, V, and AF as a M adviser on the recommendation of the defendant and collaboration in MM consulting or research services with the defendant, it cannot be said that the defendant's "gold" or "an opportunity to provide consulting or other services and to receive the consideration" is a bribe that is likely to impair the fairness in the performance of his/her duties and the trust in society. Therefore, the decision of the court below is justified, and it cannot be said that there was an error of misapprehending the legal principles on mistake of facts or a bribe.

This part of the prosecutor's assertion is without merit.

3) As to the assertion that a crime of violation of the Aggravated Punishment, etc. of Specific Crimes (Bribery) is established comprehensively (Article 1-1 of the Aggravated Punishment, etc. of Specific Crimes Act; Table 1-2 of the Crimes). In the case of bribery charges, where the same kind of crime is repeated for a certain period under the single and continuous criminal intent and the damage legal interest is the same, each crime is deemed an inclusive crime (see, e.g., Supreme Court Decision 2004Do42, Nov. 10, 2005). In the case of Table 1-1 of the Crimes List 1-2, an advisory fee is a service performed by a N individual upon request by a N individual, and a part of the advisory fee is paid to the defendant. On the other hand, in the case of Table 1-2 of the Crimes List, the service payment was partially paid to the defendant after being paid to L law firm, and even if the service payment was led by L law firm, it is difficult to view that the entire act of bribery and the entire act of bribery as a single one of injury.

Therefore, the prosecutor's assertion on this part is without merit.

4) As to the assertion that the cost of other services received by the defendant includes the cost of the relevant services (as regards 1-1 Nos. 1-2, 2, 7, 11, 16, and 27 of the crime sight table, 2-1 Nos. 2-2 and 6 of the crime sight table, 3-1 Nos. 3-1 and 27 of the crime sight table among M consulting or research services, there is no evidence to support the fact that the defendant provided services for the part other than 1-1 No. 27 of the crime sight table among M consulting or research services, and there is no evidence to support that this part of the cost received by the defendant for the provision of other services includes the selection of M consulting, etc. or the cost of the defendant's provision of services.

Therefore, the prosecutor's assertion on this part is without merit.

C. Determination on the assertion of unreasonable sentencing by the Defendant and prosecutor

The crime of this case is committed by the Defendant, who is a public official of the Ministry of Government Legislation, provided advice and other services to university professors, etc. who are requested by the Ministry of Government Legislation, etc. to give advice and receive the fees therefor. In the process, the crime of this case is not less complicated than that of the Defendant, such as actively proposing cooperation to the other party, and demanding the distribution of the fees. In addition, the social trust on the fairness in the selection of M consulting and service providers, etc. due to the crime of this case, has been significantly damaged. The substantial benefit acquired by the Defendant is

On the other hand, although the defendant denies a crime, it is recognized that his act was inappropriate as a public official. The service provided by the defendant seems to have been adequate and faithful. There is no criminal history against the defendant. This is the circumstances favorable to the defendant.

In addition, taking into account the Defendant’s age, character and conduct, environment, family relationship, the circumstances and result of the instant crime, etc., the sentence of the lower court is too heavy or unreasonable.

Therefore, the defendant and prosecutor's argument of unfair sentencing is without merit.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor 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.

Judge Bargnmark

Judges Chang Sung