[1] Standard for determining whether a public official is a bribe of money received from a construction business operator when entering into a private contract

[2] The case holding that the money that a public official entering into a negotiated contract agrees with a construction business operator to make a contract and to receive a refund from him/her, and that the money that is received by him/her as a result is not a bribe but an embezzlement

[1] Where a public official receives money from a construction business operator, etc. while entering into a private contract to implement a project necessary for a government office or to purchase goods, whether such money is deemed a bribe received in connection with a public official’s duties, or whether it is deemed that such money was embezzled by entering into a contract with a construction business operator, etc. by entering into a contract with a construction business operator, must be objectively assessed and determined by comprehensively taking into account the intent of the parties who provide and receive money, the content and nature of the contract, the rate between the contract amount and the amount received, the amount of the received money, appropriate profits that the construction business operator, etc. may obtain through the performance of the contract, the reasonable profits that the construction business operator, etc. received from a public official, the time interval between the public official and the money given by the construction business operator, whether the money was directly received from

[2] The case holding that a public official who enters into a private contract has concluded a contract with the relevant construction business operator by withdrawing the contract amount in excess of an appropriate amount and agreed in advance to return the amount so paid and received accordingly constitutes embezzlement, not embezzlement

[1] Articles 129(1) and 355(1) of the Criminal Act; Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Articles 129(1) and 355(1) of the Criminal Act; Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Defendant

Prosecutor

Attorney Park Hyun-sik

Seoul High Court Decision 2005No970 decided September 2, 2005

The appeal is dismissed.

The grounds of appeal are examined.

Where a public official receives money from a construction business operator, etc. when entering into a private contract to implement a project necessary for a public office or to purchase goods, whether the money is deemed a bribe received in connection with his/her duties, or whether it is deemed that the money was embezzled by entering into a contract with a construction business operator, etc. by making a prior agreement with the construction business operator, etc. in excess of a reasonable amount, the issue of whether the money is deemed a bribe received in connection with his/her duties shall be objectively assessed and determined by comprehensively taking into account the intent of the parties who give and receive the money, the contents and nature of the relevant contract itself, the rate between the contract amount and the amount received, the amount of the received money, the appropriate profit that the construction business operator, etc. is able to obtain through the performance of the contract, the time when the construction business operator, etc. received the money from the public official

According to the reasoning of the judgment below, the court below found the facts as stated in its reasoning and found the defendant not guilty of the part of the facts charged in this case, based on which the defendant received a bribe from each construction business operator, etc. on October 10, 2002, July 2, 2003, and July 1, 2003, each of the part of the facts charged in this case which the defendant received a bribe from each construction business operator, etc. on the ground that in light of the above criteria for judgment, the defendant entered into a contract with the relevant construction business operator, etc. by releasing the contract amount more than the appropriate amount, and received it to return it to the same degree, and therefore, it constitutes an embezzlement, not a bribe due to its nature, and therefore, it did not err in the misapprehension of legal principles as to the facts charged in this case and the records, and it did not err in the misapprehension of legal principles as to the violation of the rules of evidence and the judgment of the court below on July 23, 2002.

Therefore, the prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Ill-sook (Presiding Justice)