[2] Job relationship and bribe in the crime of bribery

[2] In a case where a public official received money, valuables or other benefits from a person subject to his duties, such money, valuables or other benefits shall be paid to him, which he received from a previous public official, and in light of the social norms, it shall not be deemed that there is no relation to his duties unless there are special circumstances, such as where it is deemed that there is merely an equivalent amount of money, or where it can be clearly recognized that personal friendly relations is due to the necessity of decentralization. In a case where a public official received money and valuables in relation to his duties, even if he received money and valuables in the form of private ties, such money and valuables shall be a bribe

A. The case holding that since a local government-invested public corporation directly establishes a local government for the benefit of the public sector and requires it to carry out a specific public project, its public nature is strong compared with other general public enterprises such as those taking precedence over the interests of the public sector rather than corporate profits, public officials of the local government-invested public corporation are required to maintain integrity and integrity of their duties, and in applying Articles 129 through 132 of the Local Public Enterprises Act in Article 83 of the Local Public Enterprises Act, "the officers and employees of the public corporation and the local government shall be regarded as public officials in the application of Articles 129 through 132 of the Criminal Act" (hereinafter referred to as "the legal provisions of this case") and "the officers and employees of the local government-invested public corporation" are all deemed as public officials in the application of Articles 129 through 132 of the Criminal Act, and therefore, it cannot be concluded that the above employees were justified in the application of the provisions of the Criminal Act to achieve the above legislative purpose, and it cannot be concluded that the above acts of bribery and punishment of the public officials are too inappropriate.

In addition, Article 18 of the Framework Act on the Management of Government-Invested Institutions and Article 4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes ("the Special Act"), among the employees of government-invested institutions and government-managed enterprises, the scope to be considered as public officials is more limited than the case of Article 83 of the Criminal Act. However, the difference between the scope of employees to be regarded as public officials is a matter of punishment, i.e., the type and scope of statutory punishment, and the legislative purpose of the Act on the Management of Government-Invested Institutions and the Local Public Enterprises are different, and it can not be the same as the local public corporations in terms of economic and public nature such as the scope of application, the scale of enterprises, and the diversity of business to be handled by the local public corporations. Thus, it cannot be concluded that there is no difference between the public corporation and the government-invested corporations in terms of the basic principles of the Act on the Prevention of Corruption of Public Enterprises and the government-invested Enterprises and the government-invested enterprises, and it is also difficult to view that there is a difference from the basic principles of the Constitution.

Therefore, in applying Articles 129 through 132 of the Criminal Act, Article 83 of the Local Public Enterprises Act, which provides that employees of local public corporations and local government public corporations shall be deemed public officials, shall not be deemed to violate Article 11(1) and Article 37(2) of the Constitution. In addition, in light of the above legal principles, the above provisions of Article 83 of the Local Public Enterprises Act cannot be interpreted only as employees of local public corporations and local government public corporations in violation of the express provisions of Article 83 of the Local Public Enterprises Act, i.e., officers of local government corporations

B. In addition, Article 2 subparag. 33 of the Enforcement Decree of the Special Act on Bribery (wholly amended by Presidential Decree No. 14879, Dec. 30, 1995) stipulates only an executive officer of the Public Officials and Private School Teachers and Staff Medical Insurance Corporation as one of the government-managed enterprises in application of Articles 129 through 132 of the Criminal Act, but the Public Officials and Private School Teachers and Staff Medical Insurance Corporation was established under the Medical Insurance Act (Article 9 of the same Act) and the same Act was repealed as the National Medical Insurance Act (Act No. 5488, Dec. 31, 1997). After that, employees of the Public Health Insurance Corporation under the National Health Insurance Act (Article 9) and the National Health Insurance Act (Article 124 of the same Act) are no longer applicable to the public officials of the National Health Insurance Corporation.

C. Therefore, the judgment of the court below that punished all of the acts of the defendants as the crime of offering of bribe by applying Article 83 of the Local Public Enterprises Act is just, and there is no error of law such as misunderstanding of legal principles as to the scope of "public official" in the crime of offering of bribe, violation of the Constitution, and incomplete deliberation as to the status of public official, as otherwise alleged in the ground of appeal. This part of

2. Judgment on the second ground for appeal

If a public official receives money, valuables, or other benefits from a person subject to his duties, it shall be deemed that he has repaid to a person who received money, valuables, or other benefits from a public official before, and in light of the social norms, it shall not be deemed that there is no relation with his duties, unless there are special circumstances, such as where it is deemed that he has been merely an equivalent amount of money, or where it is obviously recognized that his personal friendly relationship is due to the demand for the decentralization. If a public official received money, in relation to his duties, even if he received money and other valuables from a private ties, such money and valuables shall be a bribe (see Supreme Court Decisions 97Do2836, Feb. 10, 1998; 9Do4940, Jan. 21, 200; 201Do3579, Oct. 12, 2001, etc.).

Examining the evidence adopted by the court of first instance as cited by the court below in light of the above legal principles and records, the court below's rejection of the defendants' assertion that the illegality is dismissed because the defendants' relations with the defendants and co-defendant 4 and Co-defendant 4 were sufficiently recognized in light of the motive, circumstance, time, etc. of receiving the money and valuables of this case and they cannot be deemed to fall under the scope of a simple private case, and thus, it is just to accept the defendants' assertion that the payment related to the money and valuables of this case belongs to the scope of a private case, and it does not violate social rules, and there is no error of law such as misunderstanding of legal principles as to job relationship or legitimate act of bribery, as

3. Conclusion

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

Justices Lee Jin-hun (Presiding Justice)