Possibility of expectation of acts in accordance with commercial instructions given by public officials in the performance of their duties and legitimate acts

Even if the defendant committed an illegal act in return for his own official solicitation, it is not possible to expect the lawful act in addition to the above illegal act in light of the age of the defendant and his career as a public official.

Article 20 of the Criminal Act

1955.4.15. 선고 4288형상9 판결 (판례카아드4552호, 대법원판결집1⑨형48 판결요지집 형법 제20조(5)1233면)

Defendant

Prosecutor and Defendant

Seoul District Court (68Da2264, 3057)

Supreme Court Decision 69Do1288 Decided December 9, 1969

Of the judgment of the court below, the guilty portion against the defendant shall be reversed.

A defendant shall be punished by imprisonment for five years.

One hundred and seventy days of detention days prior to the pronouncement of the judgment of the court below shall be included in the original sentence.

6,000,000 won shall be additionally collected from the defendant.

The defendant's appeal is dismissed.

1. Summary of the Prosecutor’s Appeal

The court below found the defendant guilty of receiving a bribe of KRW 6,00,000 from the non-indicted 1 and 2 (the co-defendant was already confirmed at the time of the original trial) and recognized the amount of the accepted bribe of KRW 4,00,000,000. However, even though it is apparent that the defendant received KRW 6,00,000 on a single record, such as the fact that all of the parties who received the received the received the bribe made a confession that the amount is consistent with the facts charged, the court below found that the court clearly found only KRW 4,00,000 on the location of the check which was offered as a bribe, and found that only the part was found to be inconsistent with the rules of evidence, and that there was a mistake in the facts against the rules of evidence.

2. Summary of the grounds for appeal by the defense counsel

No. 1, the Defendant was a person with no knowledge of Non-Indicted 1 that he gave a bribe. However, it was returned to Non-Indicted 3,000,000 won that he borrowed from Non-Indicted 3 in addition to the Defendant’s lending of KRW 1,00,000 that he borrowed from Non-Indicted 3 on the preceding day, and it was difficult to conclude that the Defendant received a bribe solely based on the fact that Non-Indicted 1’s check was changed to a guarantee check, but it was difficult to conclude that the Defendant received a bribe as indicated in its reasoning, and that it was not in compliance with the rule of experience to receive KRW 4,00,000 as a bribe for the illegal export of a bribe provider, which was recognized by the court below, the court below found the Defendant guilty of this fact.

Point 2, if the defendant abandons his duties like the time of original adjudication, he is the last stage of export and according to the instruction of the chief of the commercial division. At the time of this case, the defendant cannot be held liable for the defendant as long as he was done from the point of view that there is no expectation to refuse such instruction; and

The third point is that the court's sentencing against the defendant is too inappropriate.

3. Therefore, the first ground for appeal by the defense counsel is examined as follows.

Examining the evidence duly examined and adopted by the court below according to the records, it is sufficient to acknowledge the fact that the defendant received a bribe in relation to his duties, such as the time of the original judgment, and subsequent examination can be recognized as a fact that the amount of the defendant's acceptance of a bribe was 6,00,000, as the prosecutor's judgment on the grounds of appeal, and there is no reason to hold that there was no fact that the defendant accepted a bribe.

As to the grounds for appeal by the defense counsel No. 2, according to the records, among the facts that the defendant, as judged by the court below, abandons his duty in examining and examining disguised exports twice or more before and after September 13, 1967 and November 16, 11.16 of the same year, the facts that the defendant has received a request from the non-indicted 4, his superior, in the course of performing his duty can be recognized. However, if the defendant's age as shown in the records and the defendant's career, etc. are considered as a customs officer for ten years, it cannot be recognized that the expectation of lawful act is impossible other than the facts of the judgment of the

Then, in light of all the circumstances that are conditions for sentencing by the records, the court below's sentence is appropriate and there are no other circumstances that need to be treated more somewhat against the defendant.

4.For the reasons for appeal by the following prosecutor:

If the court below reviewed various evidences duly examined and adopted by the record, it can be sufficiently recognized that the defendant received a bribe of KRW 6,00,000 from the defendant non-indicted 1 of the court below as seen above in relation to his duties, and it is obvious that the court below erred in the misconception that the amount of the accepted bribery against the defendant was KRW 4,00,000 and affected the judgment. Thus, the prosecutor's appeal is justified, and the judgment of the court below is reversed and it is decided again by a party member pursuant to Article 364 (6) of the same Act.

5. Facts of crime;

The Defendant, between April 15, 1967 and August 14, 1967, has been engaged in the duties of examining export documents and examining export articles while serving as the export fraternity of the Incheon Customs Office from that service to that of the relevant customs office;

(1) On Aug. 1, 1967, when Non-Indicted 1’s representative director of Non-Indicted 5 Co. 5’s company exports 36,00 in Hong Kong, he manufactured raw materials less than the fixed quantity when he exports a quantity of less than the permitted quantity, and in response to Non-Indicted 3’s solicitation to impliedly request the denial regarding the export, the Defendant did not make any measurement by Non-Indicted 6 (the co-defendant was already determined at the time of the trial but the co-defendant was already determined) who inspected the export goods at the narrow warehouse located in Incheon, but did not make any measurement by Non-Indicted 6 (the co-defendant was already determined at the time of the trial) and confirmed that the contents of the export report submitted by the Defendant by the trader are unclear, and thus, he committed an unlawful act in the course of performing his duties, and received a bribe from Non-Indicted 3 for a case-by-case’s office around August 20, 1968 to the next day after receiving it from the Defendant’s office.

(2) 1967.9.13. 무역회사인 공소외 7 주식회사 대표이사 공소외 8명의의 나이론망지 300,000야드와 공소외 9 주식회사 대표이사 공소외 10명의의 나이론직물 빽 60,000타의 수출에 관하여 공소외 3의 청탁을 받고 수출품 검사를 함에 있어 위와 같이 실제 계량함이 없이 형식적 검사만을 하고 수출신고서의 기재는 틀림없다고 확인날인하여 정당한 이유없이 직무를 유기한 것이고,

(3) 1967.11.16. 공소외 9 주식회사 대표이사 공소외 10명의로 홍콩으로 수출되는 나이론빽 157,000타의 수출검사를 함에 있어 수출과장인 공소외 4의 청탁을 받고 위와 같이 형식적 검사만을 한후 수출신고서의 기재는 틀림없다고 확인날인하여 정당한 이유없이 직무를 유기한 것이다.

6. Evidence; and

The facts No. 1 in the ruling shall:

1. Statement consistent with the judgment of the court below prior to the remanding of the defendant and the defendant non-indicted 6 of the court below and the part of the judgment below

1. Statement consistent with the judgment of the court below rendered by Non-Indicted 1 in the court below

1. A statement that conforms to the facts set forth in the judgment of the court below as follows: Nonindicted 11, 12, 13, and 14;

1. A statement that the check complies with the facts indicated in the judgment, among the books seized (Evidence No. 11);

The facts of the judgment No. 2, 3

1. Each statement that conforms to the facts set forth in the judgment of the court prior to the remand of the defendant and the original judgment;

1. Each statement that conforms to the facts set forth in the judgment of the court below and the first instance court prior to the remanding of Nonindicted 10 and 8 and Nonindicted 6 of the Defendant in the original trial

1. Statement that export pages and export licenses (certificates No. 57, 59, 60, and 61) have been exported as stated in its holding;

7. Applicable provisions;

On the other hand, among the facts stated in the judgment of the defendant, Article 131 (2) and (1) of the Criminal Act, Article 131 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 2 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 122 of the Criminal Act applies to abandonment of duties, Article 122 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 37 of the Act on the Aggravated Punishment, etc. of Specific Crimes shall select the prescribed imprisonment with prison labor for the crime of abandonment of duties, and Article 38 (1) 1 and Article 50 of the Act on the Aggravated Punishment, etc. of Specific Crimes, since the crime of abandonment of duties is concurrent crimes under the former part of Article 37 of the Criminal Act, Article 38 (1) 1 and Article 50 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the defendant first is a public official and has been employed for several years, and Article 5300 of the above Act shall apply.

Since the appeal by the defendant is without merit, it will be dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges Jeon Soo-chul (Presiding Judge)