Whether the act of buying goods mediated by the intermediary agent constitutes "cases or affairs handled by a public official" under Article 90 (1) of the Attorney-at-Law Act (negative)

Article 90 (1) of the Attorney-at-Law Act intends to punish a person who obtains unjust benefits in regard to cases or affairs handled by a public official. In light of such legislative intent, "cases or affairs handled by a public official" does not include purchase of goods as a commercial activity mediated by a brokerage agent.

Article 90 subparagraph 1 of the Attorney-at-Law Act, Article 78 of the Commercial Act

Defendant 1 and two others

Attorneys Yang Ho-soo et al.

Defendants are not guilty.

The summary of the instant facts charged is as follows.

Defendant 1 is the representative of the ordinary day, Defendant 2 is the representative of the modern science, and Defendant 3 is the representative of the modern science;

1. Defendant 1

On October 193, 1993, at the office of Nonindicted Co. 1, 1993, Nonindicted Co. 2, a director in charge of the above company's business, discovered the office of education or school in which the government recommends the establishment of audio-visual equipment at each office of education or school in Daegu, Gyeongbuk-do, to purchase audio-visual scientific equipment, and offered good offices to the public officials in charge of purchase of goods so that the amount equivalent to 20 to 30% of the contract price may be changed as good offices for the supply of scientific equipment produced by Nonindicted Co. 1, 1993, with the consent of the above Nonindicted Co. 2, around November 29, 1993; around 16, 199 to arrange for the supply of scientific equipment equivalent to 16,409,000 won to the above office of education or school; and to arrange for the supply of audio-visual equipment from the above Nonindicted Co. 2 to the office of education or school in each office of education in Daegu, Gyeong-do; 160.5 days from 96.

2. Defendant 2

On January 3, 1994, in the office of professional scientific affairs for the defendant's management, the above non-indicted 2 arranged the above non-indicted 2 to supply the scientific equipment to the public officials concerned in the same manner as in the preceding paragraph through the local businessmen who are well aware of it, and proposed that the contract amount be approximately 30 through 40% of the contract amount of the non-indicted 1 corporation be changed to the mediation fee, and the above non-indicted 2's consent is obtained from the above non-indicted 2. On February 26, 1994, around February 26, 1994, the defendant arranged the above non-indicted 1 corporation to supply the scientific equipment equivalent to KRW 3,221,640 to the office of education of Seocheon-gu, Seoul, and received the brokerage fee of 1,411,691 won from the above non-indicted 1 corporation to June 25, 196 by arranging it through the same method as shown in the attached Form (2).

3. Defendant 3

On January 1, 1994, at the office of non-indicted 1 corporation, the representative director of the above company was arranged to deliver the scientific instruments produced by the non-indicted 4 and 2 to the office of education, etc. in the same manner as the preceding paragraph, and the non-indicted 1 corporation's consent was proposed to make approximately 20 through 30% of the contract price at the office of education, etc., and then the consent was obtained from the person concerned. On February 14, 1994, the non-indicted 1 corporation was arranged to supply the scientific instruments equivalent to KRW 562,040 to the office of education, and around February 28, 1994, the amount equivalent to KRW 204,00 was received from the above non-indicted 1 corporation to August 22, 1995 by arranging them over 12 times as shown in the attached list of crimes (3) and received the money and valuables from the public official as an intermediary to handle the affairs.

Article 90 (1) of the Attorney-at-Law Act provides that a prosecutor shall prosecute a person who receives, promises to receive, or promises to give, money, valuables, entertainment, or other benefits under the pretext of solicitation or arrangement with respect to cases or affairs handled by a public official, or a person who causes, promises to give, or promises to give, such things to a third party. Generally, a case or affairs handled by a public official shall be handled strictly in accordance with the procedures prescribed by statutes, and even if there is room for the involvement of the public official's discretion, internal affairs are handled in accordance with the standards or precedents for handling, and thus, it is generally reasonable to receive money and valuables under the pretext of providing that the public official shall properly handle the affairs handled, and the above Article is considered to punish a person who has acquired such unlawful benefits.

Meanwhile, in the instant case, all the Defendants are manufacturers and distributors of scientific instruments used at elementary, middle, and high schools (a business operator mainly engaged in sales rather than manufacturing). It is the facts charged of the instant case that: (a) the aforementioned companies and the Defendants agreed to arrange for the supply of scientific equipment produced by Nonindicted Co. 1, as stated in the facts charged, by requesting the public officials in charge of the purchase of goods at the Office of Education or the schools, and to collect fees of 20 to 30% of the contract amount, thereby allowing them to arrange for such act and receive fees.

However, according to Article 78 of the Commercial Act, a person who is not a commercial employee for a certain merchant and engages in the business of acting as an agent or intermediary in the transactions belonging to the same company as the commercial employee for a certain merchant is defined as a commercial agent. In this case, the Defendants agreed to continuously arrange for the sale of the company's products as an independent merchant of the above company and to receive the fees for the sale of the company's products at the Office of Education or a school which intends to purchase the scientific equipment as an independent merchant of the above company, and then entered into a contract between the above company and the above company. Accordingly, the Defendants cannot be seen as falling under Article 90 subparagraph 1 of the Attorney-at-law Act, which provides that the Defendants' act of mediating the sale of the company's products and receiving the fees therefor at the above office of education or a school as stated in the above facts charged. If the Defendants' above act falls under the above provisions of the above Act, if the above act was not equipped with the sales network, it is impossible to use the company's commercial agent, and thus, it cannot be easily limited to the above local office of education.

As seen earlier, Article 90 subparagraph 1 of the Attorney-at-Law Act intends to punish a person who obtains unjust benefits in connection with cases or affairs handled by a public official. In light of such legislative intent, "cases or affairs handled by a public official" should be deemed not to include purchase of goods as a commercial activity mediated by a broker agent, such as this case.

If the Defendants were to give a bribe to the relevant public officials in the course of performing the above business activities or to evade taxes, it shall be punished for the crime of bribery or tax evasion, etc. However, the above act of operating a brokerage agent under Article 78 of the Commercial Act shall not be deemed to be subject to punishment under Article 90 subparagraph 1 of the Attorney-at-Law Act.

Thus, the facts charged in this case constitute a case that does not constitute a crime, and thus, each of the defendants is acquitted under the former part of Article 325 of the Criminal Procedure Act.

[Attachment]

Judges Mai-si