[1] The meaning of a false public document

[2] The case holding that a special investigation completion report prepared by intentionally omitting part of the amount of tax evaded by evidentiary data after the special tax investigation constitutes a false official document

[3] The standard for determining whether money received by a public official constitutes a bribe as an unfair profit having a quid pro quo relation with his duties

[1] Article 227 of the Criminal Act / [2] Article 227 of the Criminal Act / [3] Article 129 of the Criminal Act

[1] Supreme Court Decision 96Do554 delivered on May 14, 1996 (Gong1996Ha, 1963), Supreme Court Decision 96Do1669 delivered on October 15, 1996 (Gong1996Ha, 3484) / [3] Supreme Court Decision 97Do3113 delivered on March 10, 1998 (Gong198Sang, 1102), Supreme Court Decision 99Do4940 delivered on January 21, 200 (Gong200Sang, 530) Supreme Court Decision 200Do5438 delivered on September 18, 201 (Gong201Ha, 2302)

Defendant

Defendant

Easternern Law Firm, Attorneys Park Woo-ju

Seoul High Court Decision 2004No918, 2003No2043 delivered on October 22, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to abuse of official authority and obstruction of use

Examining the evidence admitted by the court below in light of the records, the court below acknowledged the facts as stated in its holding, and found that the defendant, on June 2002, instructed non-indicted 1 to conduct a special tax investigation against the non-indicted 2 and the (group omitted) group by telephone, and did not go through the non-indicted 3, the director of the fourth bureau in charge of the investigation, and did not directly meet the non-indicted 1, the non-indicted 3, the director of the fourth bureau in charge of the investigation. The defendant, on June 1, 2002, had a direct interview with the non-indicted 2 and the non-indicted 4, the person to be polled in charge of the above special tax investigation, and it appears that the non-indicted 3, the non-indicted 5, who was consistently charged with the above special tax investigation, did not have any violation of the rules of evidence collection order from the non-indicted 1 and the non-indicted 2's non-indicted 3's duty of collecting additional tax from the non-indicted 1's employees.

2. As to the preparation of a false official document

False official document is an official document prepared by a public official who has the authority to prepare a document with the knowledge that it is false (see Supreme Court Decision 96Do554 delivered on May 14, 1996, Supreme Court Decision 96Do1669 delivered on October 15, 196, etc.).

In light of the above legal principles and the records, the court below found facts as stated in its reasoning based on the evidence adopted, and found that the report on the special investigation of this case, which was made under the name of Nonindicted 5, 6, and 7, which is a tax official, was made by arbitrarily adjusting the amount of collected tax amount of approximately KRW 2.3 billion, regardless of the evidentiary materials, in order to meet the amount of collected tax amount of KRW 2.3 billion by the defendant's tax reduction order, and intentionally omitted approximately KRW 5.573 billion of collected tax amount which is the amount of evaded tax through various evidentiary materials, etc., and it is just to determine that it was a false official document prepared against the objective truth. There is no error of law by misunderstanding facts against the rules of evidence

3. As to the acceptance of bribe

The issue of whether money and valuables received by a public official constitute a bribe is an unfair profit in a quid pro quo relationship with the relevant public official’s duty, relationship with a provider of benefits, whether there exists a special relationship between both parties, and the process and timing of receiving benefits. In light of the fact that the crime of bribery is a fair performance of duty and the trust in society, it does not necessarily require any solicitation or unlawful act related to the duty to establish the crime, and whether a public official is suspected of being fair in the performance of duty due to receiving money is one of the criteria for determination (see, e.g., Supreme Court Decisions 9Do4940, Mar. 10, 1998; 9Do4940, Jan. 21, 200; 200Do5438, Sept. 18, 2001).

In light of the above legal principles and the records, the court below acknowledged facts as stated in its reasoning based on the adopted evidence, and determined that each of the above money received by the defendant cannot be deemed to be a courtesy for a personal-friendly relationship, and even if the defendant did not receive specific solicitation as to his duties, it is just in holding that the money received by the defendant constitutes a bribe, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles as to job relationship in bribery through incomplete deliberation, as otherwise alleged in the ground of appeal.

4. Ex officio determination

The lower court found the Defendant guilty by applying Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7767, Dec. 29, 2005; hereinafter “former Aggravated Punishment Act”) and Article 129(1)2 of the Criminal Act to the criminal facts that the Defendant received a bribe of KRW 20 million ($10,000,000,000,000,000,000,000,000,000).

However, according to Article 2(1) of the former Act, which was amended by Act No. 7767 of Dec. 29, 2005 and enforced on March 30, 2006, which was following the pronouncement of the judgment of the court below, the above act of the defendant by raising the amount of the accepted money, which serves as the basis for punishing the person who committed the crime under Article 129(1) of the Criminal Act, to "not less than 30 million won", cannot be punished by the above Act, and the above act of the defendant cannot be punished by the violation of Article 129(1) of the Criminal Act. Since the statutory punishment was changed from "a imprisonment with prison labor for not more than five years" to "a suspension of qualification for not more than ten years", this part of the crime constitutes "a change of punishment after the judgment" under Article 383 subparagraph 2 of the Criminal Procedure Act.

Therefore, this part of the judgment of the court below is no longer maintained, and the court below rendered a single sentence by deeming that the above crime is concurrent with the crime of abuse of authority and exercise of rights, preparation of false public documents and the crime of preparation of false public documents under the former part of Article 37 of the Criminal Act. Accordingly, the judgment of

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)