[1] In a case where the receipt of money acquired through the crime of embezzlement is not only for the internal distribution of money acquired through a crime between co-principals through a public offering, whether the crime of bribery is established with respect to the receipt of money (negative), and the standard for determining whether the nature of the received money is deemed as a bribe or as a distribution of the amount of embezzlement

[2] Meaning of “accounting personnel” under Article 2 of the Act on Liability of Accounting Personnel, Etc. / Whether the head of a central government agency is included in the scope of accounting personnel in a case where the head of a central government agency did not delegate accounting affairs to a public official under his/her jurisdiction, or where the head of a central government agency is required to deal with accounting affairs by himself/herself (affirmative

[3] Whether the Director of the National Intelligence Service constitutes an "other person in charge of national accounting" as defined in Article 2 subparagraph 1 (k) of the Act on Liability of Accounting Personnel, Etc. concerning the execution of special project costs (affirmative)

[1] The crime of embezzlement is not established unless the receipt of money acquired through the crime of embezzlement is merely an internal distribution of the money acquired through the crime between co-principals through a public offering. Whether the given money is deemed a bribe or not should be objectively assessed and determined by comprehensively taking into account the intent of the parties who provided and received the money, the amount of the received money, the interval between the embezzlement and the receipt of the money, the time interval between the embezzlement and the receipt, the place and method of receipt, etc.

[2] The purpose of the Act on Liability of Accounting Personnel, Etc. (hereinafter “Accounting Personnel Act”) is to clarify the responsibilities of accounting personnel, etc. and to prevent any accounting act in violation of the provisions prescribed in the statutes or other relevant regulations and budget, thereby ensuring the proper execution of accounting affairs by the State, local governments, etc. (Article 1). Article 2 of the Accounting Personnel Liability Act defines accounting personnel as those falling under any of the following subparagraphs. Under subparagraph 1, a person who executes national accounting affairs pursuant to the statutes governing the budget and accounting of the State, such as the National Finance Act, the National Accounting Act, and the National Funds Management Act, and who falls under any of the following items as those who carry out the national accounting affairs under the said statutes shall be defined as accounting personnel; and under subparagraph 1 (k) through (k) of Article 1 of the Act, the term “other persons who handle national accounting affairs of the State” shall be defined as those who are not in charge of accounting affairs; under subparagraph 1 through 3 of Article 2 of the Act, those who are not in charge of accounting affairs shall also be defined as those who are in charge of accounting affairs under the jurisdiction of the head of central government agency.

[3] As the head of a central government agency, the Director of the National Intelligence Service (hereinafter “the Director of the National Intelligence Service”) manages accounting affairs under his/her jurisdiction, including the duties concerning the collection and receipt of revenues under his/her jurisdiction, and the duties concerning the actions incurring expenditure and expenditure under his/her jurisdiction (Article 2 subparag. 4, Articles 6, and 19 of the Management of the National Funds Act, Article 6(1) of the National Accounting Act, Articles 2 and 17 of the Government Organization Act, and Article 7 of the National Intelligence Service Act). In principle, the duties concerning accounting affairs under the jurisdiction of the Director of the National Intelligence Service (hereinafter “the

(2) One of the administrative affairs involving accounting means a contract or other act which causes expenditure (Article 19 of the Management of the National Funds Act) and an act which finally generates an obligation to pay a certain amount of money.

With respect to the execution of the ordinary budget of the NIS, the Director of the NIS delegated the activities that incur expenditure to the Director of the Planning and Coordination Office, and the affairs so delegated shall be handled by the Director of the Planning and Coordination Office without the approval of the Director of the NIS. However, the special project cost establishes the contents of the expenditure obligation, such as the place of use, time and

In the process of executing special project costs, the documents stating the name of the project and the required budget are prepared by the Director of the Planning and Coordination Office within the NIS. However, this is only considered to be merely a procedure to withdraw the amount determined by the Director of the NIS from the deposit account, and the preparation of the above documents cannot be deemed as an act of incurring expenditure itself.

(3) The president of the NIS shall designate a user office to instruct the disbursement of special project costs.

Examining the above circumstances in light of the relevant legal principles, the president of the NIS: (a) determined the place of use, timing, and amount to be paid directly in the process of executing the special project cost to perform the act of incurring expenditure; and (b) actually handled the act of incurring expenditure and the act of disbursing funds, such as participating in the act of funding by having actually disbursed the special project cost. Therefore, the president of the NIS should be deemed to fall under the “other person in charge of national accounting” as prescribed by Article 2 subparag. 1(k) of the Act on Liability of Accounting Personnel, Etc.

[1] Articles 30, 129(1), and 355(1) of the Criminal Act / [2] Articles 1, 2 subparag. 1, and 4 of the Act on Liability of Accounting Personnel, Etc., Articles 2 subparag. 4, 6, 9(1), 19, and 21(1) of the Management of the National Funds Act, Article 6(1) of the National Accounting Act / [3] Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 35(1) of the Criminal Act, Article 2 subparag. 1(k) of the Liability of Accounting Personnel, etc., Article 2 subparag. 4, 6, and 19 of the National Funds Management Act, Article 6(1) of the National Accounting Act, Articles 2 and 17 of the Government Organization Act, Article 7 of the National Intelligence Service Korea Act

[1] Supreme Court Decision 94Do346 delivered on February 25, 1997 (Gong1997Sang, 1017) Supreme Court Decision 2005Do7112 Delivered on October 12, 2007 (Gong2007Ha, 1796) / [2] Supreme Court Decision 99Du5498 Delivered on February 23, 2001 (Gong2001Sang, 780) Supreme Court Decision 2003Do6534 Delivered on October 27, 2004

Defendant

Prosecutor

Attorney Park Jae-young

Seoul High Court Decision 2018No2150 decided July 25, 2019

The part of the lower judgment’s conviction (including the part not guilty in the grounds) and the part not guilty in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) are reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Prosecutor’s appeal is dismissed.

The grounds of appeal are examined.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) regarding the money received by the Defendant (hereinafter “Aggravated Punishment of Specific Crimes Act”)

A. The judgment of the court below

The lower court, on the grounds indicated in its reasoning, found that Nonindicted 1, 2, and 3 of the Director of the National Intelligence Service (hereinafter “the Director”) granted the Defendant special project cost (hereinafter “special project cost”) from May 2013 to September 2016 did not seem to have granted the special project cost so that the Director of the National Intelligence Service would have paid the Defendant the special project cost, and the parties did not think that the said fund was a bribe, and found that the parties did not think that it was a bribe, and found the Defendant not guilty of all of the facts charged.

B. Judgment of the Supreme Court

1) Legal principles

Bribery does not require a special solicitation to recognize the bribe of money and valuables received because the fair performance of duties by a public official, the trust in the society, and the purchase of such duties are not necessary. Furthermore, money and valuables are sufficient to have been received in connection with his duties, and there is no need to have an individual job or a quid pro quo relationship (see Supreme Court Decision 2001Do3579, Oct. 12, 2001, etc.). Whether a certain benefit received by a public official constitutes a bribe is an unreasonable benefit in a quid pro quo relationship with a public official, shall be determined in consideration of all the circumstances such as the contents of the relevant public official’s duty, the relationship between a job and a benefit provider, the degree of interest, the circumstances and timing of receiving such benefit, etc. In light of the fact that the bribery is the fair performance of duties, trust in the society, and the impossibility of an act of purchasing such duties, and thus, it is obviously probable that a public official received money and valuables from a person who received such benefit from a public official is subject to 90-170th of the Supreme Court.

In addition, the crime of embezzlement is not established separately if the receipt of money acquired through the crime between co-principals is not only an internal distribution of the money acquired through the crime among co-principals. Whether such receipt of money is deemed a bribe or not should be objectively assessed and determined by comprehensively taking into account the intent of the parties to grant and receive the money, the amount of the money received, the time interval between the crime of embezzlement and the receipt, whether the received money was embezzled, the place and method of receipt, etc. (see, e.g., Supreme Court Decisions 94Do3346, Feb. 25, 1997; 2005Do7112, Oct. 12, 2007).

2) A total of KRW 3.3 billion from May 2013 to July 2016

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the duty relationship of bribery, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal. The reasons are as follows.

A) On May 2013, the Defendant directed Nonindicted 4 to receive and use the budget support from the National Intelligence Service (hereinafter “National Intelligence Service”). Nonindicted 1, upon Nonindicted 4’s request following the Defendant’s instruction, embezzled and delivered KRW 600 million in total of the special project cost from May 2013 to April 2014. After that, Nonindicted 2 and Nonindicted 3, the president of the National Intelligence Service, embezzled and delivered the Defendant a total of KRW 80 million in total, and KRW 1.9 billion in total, from July 2014 to July 2016, Nonindicted 3 received a request from the Defendant for the provision of funds directly from the Defendant in the process.

The President is the person who has the authority to direct, supervise, and personnel affairs with respect to the president. The Defendant instructed the president to embezzled and deliver the funds of the NIS to the president on his/her position, and received the special project cost that he/she embezzled from the president. In order to comply with the Defendant’s instruction, the president embezzled the special project cost and granted the embezzled funds to the Defendant.

B) Comprehensively taking account of these circumstances, the Defendant and the president of the NIS have conspired to embezzled government funds and to vest them in the Defendant, and accordingly, the embezzlement and delivery of this part of the special project cost is deemed to have been made. Although the Defendant did not directly perform the act of committing the embezzlement, the Defendant instructed the head of the NIS to commit the crime in a superior and strong position, and received this part of the special project cost from the head of the NIS. Ultimately, the Defendant is merely an internal distribution of the money that some of the accomplices acquired in the course of the embezzlement by actively participating in the criminal act. Accordingly, this part of the special project cost that the Defendant received is difficult to regard as a bribe, and it is difficult to deem that the Defendant had the intent to commit the crime of violating the Specific Crimes Aggravated Punishment Act (Bribery). The Defendant cannot be deemed to have received this part of the special project cost from the president of the NIS, the lower court’s reasoning is justifiable, but the lower court’s conclusion that acquitted this part of the charges is justifiable.

3) around September 2016 KRW 200 million

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court erred by misapprehending the legal doctrine on the duty relationship of bribery and by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The reasons are as follows.

A) As seen earlier, the Defendant received the special project cost from the president of the NIS, and around August 2016, reported through the press the suspicions related to the so-called NIS case, such as suspicions on the ○○ Foundation, etc., the Defendant ordered Nonindicted 4 to suspend the number of government funds. Nonindicted 4 sent this order to Nonindicted 3 via Nonindicted 5. Accordingly, Nonindicted 3 suspended the grant of the special project cost.

B) After that, there is no fact that the Defendant instructs Nonindicted 3 to grant the NIS funds again.

However, around September 2016, Nonindicted 3 received the statement from Nonindicted 5 that it is difficult for the Defendant to pay money from Nonindicted 4, and Nonindicted 3 voluntarily embezzled KRW 200 million of the special project cost and voluntarily delivered it to the Defendant, considering that the Defendant was in need of money even though Nonindicted 3 did not request the Defendant to provide funds from Nonindicted 4.

At the time, the so-called state of government administration, which was the cause of suspending the provision of special project costs, had not been resolved, and thus, there was no situation to grant the special project costs again as in the previous case. In the first instance trial, Nonindicted 5 stated that the delivery of this part of the money was in accordance with Nonindicted 3’s decision, and that the payment of the money was completed by Nonindicted 3, and that the decision was completed well, and that the decision was made in favor of Nonindicted 3. In light of these circumstances, it is reasonable to view that Nonindicted 3 was able to understand that there was the demand of funds of the Defendant and deliver this part of the money as in the previous. Rather, it is reasonable to view that Nonindicted 3, unlike the past, voluntarily and actively decided otherwise, provided this part of the money.

C) As the Defendant also received, without any specific objection, the money that Nonindicted 3 voluntarily delivered without the Defendant’s instruction, when the Defendant directed the suspension of the grant of the NIS’s funds, the Defendant ought to be deemed to have been aware of the fact that the said money was received differently from that of the previous money. Unlike the previous one where Nonindicted 6, who is in charge of the finance of the NIS, primarily managed the NIS’s funds, the Defendant appears to have been aware of the fact that the Defendant used this portion of money directly by himself.

D) The president, as a person in charge of the direction and supervision and personnel administration of the president, has a substantial and substantial influence on the overall administration of the NIS, including personnel affairs, organization, and budget. The president of the NIS may be dismissed at any time pursuant to the statutory term of office and the president’s intention. The Defendant and Nonindicted 3 have no private-friendly relationship to receive KRW 200,000 on the ground that there is no circumstance that there is no reason to deem it difficult. Moreover, it is sufficient that the president of the NIS voluntarily delivers large amount of money to the President, who is difficult to circumstances at the time, as a person in charge of the direction, supervision, and personnel administration, would be suspected of fairness in the performance of duties by

E) Unlike the previous money given to the Defendant through Nonindicted 6, this part of the money was sent to Nonindicted 7, who assist the president’s private work, and was delivered to the Defendant. As to the background thereof, Nonindicted 4 stated in the first instance trial that Nonindicted 7’s duties, an assistant secretary, who is the defendant’s assistant secretary, and that Nonindicted 5 said Nonindicted 7 said that the money was made to the effect that he was on Nonindicted 7. As seen above, the management and use of the money was different from the money given prior to that time.

F) Comprehensively taking account of these circumstances, unlike the money given until July 2016, this part of the money ought to be deemed to constitute a bribe received as an unjust profit having a quid pro quo relation with the President’s duties when both the Defendant and Nonindicted 3 perceived the bribe.

2. Violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) regarding the money received by the defendant.

(a) From May 2013 to July 2016 (whether the National Quota belongs to accounting personnel)

1) The judgment of the court below

A) Unlike the first instance court, the lower court determined that the president of the NIS does not constitute “other persons in charge of the accounting affairs of the State” under Article 2 subparag. 1(k) of the Act on Liability of Accounting Personnel, Etc. (hereinafter “the Accounting Personnel Liability Act”), and, even in the case of special project costs, the act of causing expenditure, such as the preparation of a written decision on the expenditure, approval, etc., shall be dealt with as the discretionary decision of the head of the NIS (hereinafter “the head of the NIS”) in accordance with the delegation provisions, and that the head of the NIS shall not be deemed to be different since he/she was assigned

B) On such premise, the lower court acquitted Nonindicted 1 on the part from May 2013 to July 2016: (a) found him/her not guilty on the grounds of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), each of the primary charges; and (b) found him/her guilty of each of the violation of the Specific Crimes Aggravated Punishment, etc. of Specific Economic Crimes Act (Embezzlement), which is the second preliminary charge, with respect to the money issued by Nonindicted 1, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), Nonindicted 2, and Nonindicted 3, as an ancillary charge, in collusion

2) Judgment of the Supreme Court

A) The purpose of the Accounting Personnel Liability Act is to clarify the responsibilities of accounting personnel, etc. and to prevent the violation of the provisions prescribed in the statutes or other relevant regulations and budget, thereby ensuring the proper performance of accounting affairs (Article 1). Article 2 of the Accounting Personnel Liability Act is defined as “accounting personnel” as falling under any of the following subparagraphs. According to the statutes governing national budget and accounting, such as the National Finance Act, the National Accounting Act, and the Management of the National Funds, those who execute national accounting affairs in accordance with the said statutes shall be defined as accounting personnel; and Article 2 of the Accounting Personnel Liability Act provides that “other persons who handle national accounting affairs” under item (a) through (j) shall be defined as “other persons who are subject to the jurisdiction of the head of a central government agency” under subparagraph 4 shall be defined as “other persons who are subject to the jurisdiction of the head of a central government agency who are not subject to subparagraph 1 through 3, regardless of the content of such regulations and purport of the Accounting Personnel Liability Act; Article 2(1) through (3) of the Accounting Personnel Management Act shall also include persons who are subject to the jurisdiction.

B) According to the relevant statutes and the evidence duly admitted, the following circumstances are revealed.

(1) As the head of a central government agency, he/she manages the accounting affairs under his/her jurisdiction, such as affairs concerning the collection and receipt of revenues under his/her jurisdiction, affairs concerning the act of causing expenditure and expenditure under his/her jurisdiction (Article 2 subparag. 4, Articles 6, and 19 of the National Funds Management Act, Article 6(1) of the National Accounting Act, Article 2, Article 17 of the Government Organization Act, Article 7 of the Government Organization Act, and Article 7 of the State Agency Act).

(2) An act of incurring expenditure, which is one of the affairs concerning accounting, means a contract or other act which causes expenditure (Article 19 of the Management of the National Funds Act) and an act which finally generates a certain amount of expenditure obligation.

With respect to the execution of the ordinary budget of the NIS, the president delegated the act of incurring expenditure to the chief of the bureau, and the affairs so delegated shall be carried out by the chief of the bureau without the procedures of the president’s approval. However, the special project cost is not likely to intervene by the president of the NIS who voluntarily determines the content of the obligation to pay, such as the place of use, timing and amount of payment, and there is no room for other employees to intervene. Likewise, as in the instant case, Nonindicted 1, the chief of the bureau Nonindicted 5, the president of the

In the process of executing special project costs, the documents in which the name of the project and the required budget are simplified are prepared by the chief of the bureau within the NIS. However, this is only deemed to be merely a procedure for withdrawing the amount confirmed by the chief of the bureau from the deposit account, and the preparation of the above documents itself cannot be deemed as an act incurring expenditure.

(3) The Director of the NIS designates the Agency and instructs the disbursement of the special project cost. In this case, the Secretary of the Office of Secretary, etc. ordered by the Director of the NIS to deliver the special project cost to the Defendant.

C) Examining the foregoing circumstances in light of the legal principles as seen earlier, the president of the NIS: (a) determined the place of use, timing of payment, and amount to be paid directly during the process of executing the special project cost to perform the act of incurring expenditure; and (b) actually handled the act of incurring expenditure and the act of disbursing funds that constitutes an act of funding by having the special project cost actually disbursed; and (c) accordingly, the president of the NIS constitutes “other person in charge of national accounting” as stipulated in Article 2 subparag. 1(k) of the Act on the Responsibility of Accounting Personnel in the substance of his/

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the concept of “other persons in charge of the accounting affairs” as stipulated in Article 2 subparag. 1(k) of the Accounting Personnel Liability Act, and by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

B. The part on September 2016

For the reasons indicated in its holding, the lower court acquitted all of the primary and conjunctive charges on the ground that there was no explicit or implied communication between Nonindicted 3 and the Defendant, no functional control over the Defendant exists, and no aiding and abetting of the Defendant was established.

The allegation in the grounds of appeal disputing such determination by the lower court is merely an error of the lower court’s determination on the selection and probative value of evidence, which substantially belongs to the free judgment of the lower court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding conspiracy and assistance or by exceeding the bounds of the principle of free evaluation

3. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) regarding the money received by Nonindicted 8

For the reasons indicated in its holding, the lower court acquitted Nonindicted 3 of this part of the charges on this part, on the grounds that it is difficult to deem that the special project cost that Nonindicted 3 delivered to Nonindicted 8 was paid in return for Nonindicted 8’s duties as the chief secretary for the presidential secretary, or that the Defendant received in collusion with Nonindicted 8 as the price related to his duties as the chief secretary

The allegation in the grounds of appeal disputing such determination by the lower court is nothing more than an error of the lower court’s determination as to the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the duty relationship of bribery and the quid pro quo or public offering, or by

4. Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding the money received by Nonindicted 8

For the reasons indicated in its holding, the lower court found that Nonindicted 3 did not correspond to the accounting personnel under Article 2 of the Accounting Personnel Liability Act, and found the Defendant not guilty of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), which is the primary charge, and found Nonindicted 3 guilty of the occupational embezzlement, which is the preliminary charge, premised on the premise that Nonindicted 3 is not the

However, as seen earlier, the president of the NIS constitutes accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act with respect to special project costs, and thus, acquitted this part of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine on accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion

5. Scope of reversal

The part of the lower judgment on the charge of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) and the part on the charge of violation of the Specific Crimes Aggravated Punishment Act (Bribery) should be reversed on or around September 2016, which are the primary charges except for the part on September 2016 among the lower judgment. As such, the part on the guilty of each of the lower judgment should be reversed including the part on the acquittal of the reasons, as the ancillary charges of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) and the charges of violation of the Specific Crimes Aggravated Punishment Act (Loss on Specific Crimes Aggravated Punishment, etc.) which are reversed.

6. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below's conviction (including the part of acquittal in the grounds of appeal) and the part of acquittal in violation of the Specific Crimes Aggravated Punishment Act (Bribery) are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)