2017Do12389 A. Bribery

B. Acceptance of bribe

Defendant 1 and one other

Prosecutor (Defendants)

Attorney Park Jin-jin et al.

Incheon District Court Decision 2017No153 Decided July 14, 2017

September 24, 2020

The part of the judgment below regarding the offering of bribe to Defendant 1 and Defendant 2 shall be reversed, and that part of the case shall be remanded to the Incheon District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On November 2013, 2013, the head of ○○○ △△△△△△△△△, Defendant 2 heard the phrase “in the case of a person who is engaged in a gift, he will send the salted fish” from Defendant 1 to Defendant 1, and sent the list of the persons who are engaged in the salted fish, and let Defendant 1 send the name of Defendant 2 to the said person as if he were engaged in a gift.

Defendant 2: (a) from November 12, 2013 to November 12, 2014, Defendant 2: (b) had 329 persons who wish to donate the salted fish, as indicated in the attached Table of the lower judgment, send the total amount of KRW 11,186,00 to Defendant 1; and (c) received a bribe in relation to the public official’s duties in a manner that did not pay the price; and (d) Defendant 1 received a bribe in relation to the public official’s duties in a manner that did not pay the price.

In relation to Defendant 2, a bribe was given to Defendant 2.

B. The judgment of the court below

The court below reversed the judgment of the court of first instance that found Defendant 2 guilty of the charges on the ground that the evidence submitted by the prosecutor alone was insufficient to recognize that the above 329 persons received the salted fish in light of social norms as a relationship that can be evaluated as directly by Defendant 2 as being directly received.

2. Supreme Court Decision

A. Bribery is the realization of the intent of the donor to accept the bribe by the donor’s contribution, and the specific intent of the donor should be understood from the perspective of the beneficiary’s burden of benefit related to the act of duty. Therefore, money and other valuables or property benefits, etc. need not be received directly between the donor and the consignee (see Supreme Court Decision 2006Do8568, Jun. 12, 2008).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

1) Defendant 1 is the leader of the Anegro, and Defendant 2 served in the head of the △△△△△△ Bureau around January 2012, Defendant 1 was in charge of the fishermen’s fishery guidance, subsidies-related business and the control of fishing-related business.

2) On November 2012, 2012, prior to the period specified in the facts charged (from November 12, 2013 to November 12, 2014), Defendant 1 stated that Defendant 2 would send a spokeed fish if he/she is a person who will make a gift by telephone. Since then, Defendant 2 requested a list of the persons who will deliver the spokeed fish to Do governor and Do governor where he/she was in office, and sent the spokeed fish to Defendant 2’s name after receiving a list from Do governor and employees. At the time, Defendant 2 was aware of the fact that the spokeed fish was sent to spokeed fish under his/her name after receiving an audit from the head of the Da department who received the said spokeed fish, but did not have a problem to Defendant 1 or the spokee.

3) Since then, Defendant 1 requested the ○○○○ Do Office to list in the same way as the period indicated in the facts charged, and sent the salted fish in the name of Defendant 2 to the persons indicated in the list prepared by the △ branch.

4) 피고인 2는 2013. 11.경 □□과 직원에게 새우젓 발송 명단의 선정기준(퇴직한 ○ ○도청 □□과 공무원, ▽▽▽▽▽ 의원, ☆☆☆☆☆ 공무원 등)을 지정하였고 위 직원으로부터 위 기준에 따라 작성된 명단을 보고받았다. 위 명단은 피고인 2의 승인을 받은 후 피고인 1에게 전달되었다. 피고인 2는 2014년에는 피고인 1에게 보내는 명단에 직접 자신의 지인들을 따로 추가하기도 하였다.다. 위와 같은 사실관계를 앞서 본 법리에 비추어 살펴보면, 피고인 1은 피고인 2가 지정한 사람들에게 피고인 2의 이름을 발송인으로 기재하여 배송업체를 통하여 배송업무를 대신하여 주었을 뿐이고, 위 새우젓을 받은 사람들은 새우젓을 보낸 사람을 피고인 1이 아닌 피고인 2로 인식하였으며, 한편 피고인 1과 피고인 2 사이에 새우젓 제공에 관한 의사의 합치가 존재하고 위와 같은 제공방법에 관하여 피고인 2가 양해하였다고 보이므로, 피고인 1의 새우젓 출연에 의한 피고인 2의 영득의사가 실현되어 형법 제129조 제1항의 뇌물공여죄 및 뇌물수수죄가 성립한다고 보아야 한다. 공여자와 수뢰자 사이에 직접 금품이 수수되지 않았다는 사정만으로 이와 달리 볼 수 없고, 원심이 인용한 대법원 1998. 9. 22. 선고 98도1234 판결은 공무원이 증뢰자로 하여금 다른 사람에게 뇌물을 공여하도록 한 경우에 관한 것이므로 사안을 달리하는 이 사건에 원용하기에 적절하지 않다.

D. Nevertheless, the court below erred by misapprehending the legal principles as to the establishment of bribery and thereby adversely affecting the conclusion of the judgment. The prosecutor's ground of appeal pointing this out has merit.

3. Therefore, the part concerning the offering of a bribe to Defendant 1 and the part concerning Defendant 2 among the judgment below is reversed, and that part of the case is remanded to the court below 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 Noh Jeong-hee

Chief Justice Park Sang-ok