[1] In a case where a person who received good offices under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes has not provided part of money and valuables as a bribe to a relevant public official in accordance with the purport of receiving such money and valuables, or used them for expenses according to an independent judgment, not for delivery to another intermediary

[2] Whether the crime of receiving good offices under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is established only where a third party received money from a person who has requested good offices and delivered it to the person who has mediated without the intention to jointly process the good offices (negative)

[1] The necessary confiscation or additional collection under Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes aims to deprive the offender of the pertinent property acquired by the offender and prevent the offender from holding unlawful profits. Thus, in case where the offender receives money and other valuables for the arrangement of matters belonging to the public official's duties and delivers part of such money and other valuables to the relevant public official in connection with solicitation as a bribe or for the solicitation in accordance with the purport of actually receiving money and other valuables, the benefits of the part does not actually belong to the offender, and only the money and other valuables except for the part shall be confiscated or collected additionally. However, even if the person who received money and other valuables for the arrangement of matters belonging to the public official's duties delivers part of such money and other valuables as a solicitation to the other intermediary, even if it was planned to use it as such from the time when the money and other valuables were originally received to be used as such, but if the offender used it as expenses according to its independent judgment, it is merely a means of consuming the money and other valuables

[2] In order to establish the crime of mediation acceptance under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, there must be an act of receiving, demanding or promising money and valuables or other benefits under the pretext of mediating between the person who requested mediation and the public official who may become the counterpart to mediation, and in case where a third party other than the person who received money and valuables or other benefits by receiving money and valuables or other benefits from the person who requested mediation to act as the counterpart to the mediation (hereinafter referred to as the "mediation") receives money and valuables from the person who requested the mediation, and delivers them to the intermediary, the third party shall be deemed to have taken part in the act of mediation acceptance under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, separately from the case where the third party delivers such money and valuables or other benefits to the intermediary without the intention of joint processing, it cannot be deemed as an element of the crime of mediation acceptance under Article 3 of the Act on the Aggravated Punishment, etc.

[1] Articles 3 and 13 of the Aggravated Punishment Act / [2] Article 3 of the Aggravated Punishment Act

[1] Supreme Court Decision 82Do1310 decided Jul. 27, 1982 (Gong1982, 894), Supreme Court Decision 83Do1660 decided Sep. 13, 1983 (Gong1983, 1543) Supreme Court Decision 86Do1951 decided Nov. 25, 1986 (Gong1987, 126), Supreme Court Decision 88Do2405 decided Feb. 28, 1989 (Gong1989, 569), Supreme Court Decision 93Do1569 decided Dec. 28, 1993 (Gong194, 584, Feb. 25, 1994); Supreme Court Decision 93Do30949 decided Apr. 29, 197; Supreme Court Decision 97Do9839 decided Apr. 194, 197

Defendant 1 and two others

Prosecutor and Defendant

Law Firm Mancheon-ro, Attorneys Yu-min et al.

Seoul High Court Decision 98No2776 delivered on February 10, 1999

The appeal by Defendant 1 and the prosecutor’s appeal by Defendant 2 and Defendant 3 are dismissed, respectively. The number of days under detention after the appeal by Defendant 1 shall be included 80 days in the original sentence.

1. Defendant 1’s defense counsel’s grounds of appeal are examined.

A. Examining the evidence admitted by the court of first instance by comparison with the records, the court below is just in finding Defendant 1 guilty of the facts constituting a crime as stated in Article 4-A of the judgment of the court of first instance on the premise that the decision of promotion of position as the captain of the Army against Nonindicted 1, the Army, belongs to the duties of the Minister of National Defense, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of the legal principles as to the scope of the duties of the Minister

B. The necessary confiscation or collection under Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes aims to deprive the criminal of the pertinent property acquired from his/her criminal and prevent him/her from holding unlawful profits. Thus, in cases where a person who received money or goods from a public official and provided part of such money or goods to another intermediary in connection with a solicitation in accordance with the purport of actually receiving such money or goods, the benefit of the part does not actually belong to the criminal, and thus, confiscation or collection of the remaining money or goods excluding the above part is necessary (see, e.g., Supreme Court Decisions 93Do3064, Feb. 25, 1994; 93Do1569, Dec. 28, 1993; 93Do1569, Jul. 27, 1982; 198Do1310, Jul. 27, 1982). 208.

Defendant 1’s assertion on the amount of the additional collection related to KRW 65,00,000 that he received from Nonindicted 1 is that Defendant 1 received KRW 65,00,000 from Nonindicted 1 and delivered KRW 40,000 among them to Nonindicted 2 twice on the pretext of requesting the Minister of National Defense to make a solicitation to the same effect. Of these, KRW 15,00,000 among them, the amount of KRW 15,00,000 should be excluded from the amount of the additional collection for Defendant 1.

However, according to the legal principles as seen earlier, Defendant 1’s delivery of KRW 15,00,00 to Nonindicted 2 should be based on the purport of receiving KRW 65,00,000 from Nonindicted 1 for the first time. However, Defendant 1’s criminal facts lawfully recognized by the lower court are likely to promote Nonindicted 1 by requesting the Minister of National Defense from KRW 1, and if it is impossible to promote, the lower court did not request that Defendant 1 obtain a good place for reemployment at KRW 65,00,00,000 for the first time on the part of Nonindicted 1’s statement to the effect that it was delivered KRW 0,000,00 for the first time, and thus, it cannot be readily concluded that the lower court’s delivery of KRW 15,00 to Nonindicted 20,000 for the first time on the part of Defendant 1’s statement to the Minister of National Defense. According to its reasoning, the lower court did not err by misapprehending the legal principles regarding Defendant 1’s delivery of KRW 00,000.

2. We examine the grounds of appeal by the prosecutor on the defendant 2 and the grandchildren.

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes requires the act of receiving, demanding, or promising money, goods, or other benefits under the pretext of mediating between the person who requested the referral and the public official who may become the counterpart to the referral (see, e.g., Supreme Court Decisions 97Do367, May 30, 197; 87Do2353, Nov. 22, 198). If a third party, other than the person who has requested the referral, receives money, goods, or other benefits, under the pretext of mediating between public officials who may become the counterpart to the referral and the person who has requested the referral (hereinafter referred to as the "mediation"), and delivers such money, goods, or other benefits to the person who has requested the referral, he/she shall not be deemed as having participated in the act of arranging or taking part in the act of arranging or taking part in the act of arranging or taking part in the act of communication with such act, separately from cases where the third party delivers such money, goods, and other benefits to the intermediary without the above intention, it cannot be deemed as constituting an intermediate crime of Article 198.

According to the reasoning of the judgment below, upon considering the evidence duly admitted by the court of first instance, Defendant 2 was requested by Defendant 3 to smoothly resolve the fraud of Filisan Group's Seoul Skidide, but introduced Defendant 1 to Defendant 3 and Nonindicted 3 on the ground that it could not be resolved by himself. On June 22, 1998, Defendant 2 introduced Defendant 3 and Nonindicted 3 to Defendant 1, and the defendant 3 were introduced to Defendant 1 on the part of Defendant 1 and the defendant 3 on the part of Defendant 1, and there was no reason to believe that there was no error of law by misapprehending the legal principles as to the above investigation, and since there was no ground to acknowledge that Defendant 1 and the defendant 2 arranged the above investigation by attending the court of first instance and arranged the above investigation, and that there was no error of law by misapprehending the legal principles as to the act of arranging and arranging the defendant 2 to deliver money to Defendant 1 through Defendant 2's address and his telephone number as well as by Defendant 1's request.

3. Therefore, the appeal by Defendant 1 and the prosecutor's appeal by Defendant 2 and Defendant 3 are dismissed, and as to Defendant 1, part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)