[1] The meaning of "executive officers and employees of a corporation engaged in entrusted business" under Article 39 of the former Petroleum Business Act

[2] The scope of duties entrusted to the Korea Petroleum Quality Management Agency under Article 34(3) of the former Petroleum Business Act

[3] The case holding that a person in charge of the duties of the planning and coordination director who is not in charge of quality inspection of petroleum products, etc. entrusted by the Korea Petroleum Quality Control Agency shall not be deemed a public official pursuant to Article 39 of the former Petroleum Business

[1] Articles 32(2) and 39 (see current Article 43(2) of the former Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004) / [2] Article 32(2) of the former Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004; see current Article 50 of the Petroleum and Petroleum Substitute Fuel Business Act) / [3] Article 32(2) of the former Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004; see current Article 43(2) of the former Enforcement Decree of the Petroleum Business Act (amended by Presidential Decree No. 18796 of Apr. 22, 2005; see current Article 45(3) of the Enforcement Decree of the Petroleum and Petroleum Substitute Fuel Business Act) / [3] Article 34(2) of the former Enforcement Decree of the Petroleum Business Act (amended by Act No. 2405 of the Petroleum Substitute Fuel Business Act (see current Article 305(3) of the Act)

Defendant 1 and one other

Prosecutor

Law Firm KEL, Attorneys Kim-hee et al.

Seoul High Court Decision 2006No1315 decided Dec. 15, 2006

The appeal is dismissed.

The interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant is not permitted because it is against the principle of no punishment without the law and it is against the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 2003Do6535, Feb. 27, 2004; 2004Do7773, Oct. 19, 2006).

Article 39 of the former Petroleum Business Act (amended by Act No. 7240 of Oct. 22, 2004; hereinafter “Act”) provides that “The officers and employees of a corporation engaged in the business entrusted under Article 32(2) shall be deemed public officials in the application of Articles 129 through 132 of the Criminal Act.” Article 32(2) of the Act provides that “The Minister of Commerce, Industry and Energy may entrust part of his authority under this Act to a corporation established with permission of the Minister of Commerce, Industry and Energy for the purpose of the sound development of the public corporation, quality inspection institution, or petroleum industry, as prescribed by Presidential Decree.” Thus, the literal interpretation of Article 39 of the Act and the phrase “corporation engaged in the entrusted business” shall be interpreted to mean “executive officers and employees” as well.

In addition, Article 34(3) of the Enforcement Decree of the Act (amended by Presidential Decree No. 18796, Apr. 22, 2005) provides that "the Minister of Commerce, Industry and Energy shall entrust the business of quality inspection of petroleum products falling under any of the following subparagraphs among the business of quality inspection under Article 25(2) of the Act to the inspection office."

In the same purport, as long as Defendant 1 was in charge of the duties of the Director General unrelated to the quality inspection of petroleum products, etc., which are entrusted affairs at the time, there is no room to be deemed public officials pursuant to Article 39 of the Act. In addition, Nonindicted 1, an employee in charge of computer affairs belonging to the Planning and Coordination Agency, received money and valuables in return for solicitation of "the purpose of giving good evaluation" and "the quality inspection of petroleum products, etc.," which are public officials, and thus, it does not constitute a crime of acceptance of bribe under the Criminal Act, and Defendant 1's act of giving and receiving money and valuables does not constitute an act of acceptance of bribe under the Criminal Act, and Defendant 2, the other party who provided money and valuables and entertainment as reward to the Korea Petroleum Quality Control Agency, from 00 staff members of the Planning and Coordination Agency at the time, and there is no error in the misapprehension of the legal principles and the record as to "the quality inspection of petroleum products, etc.," which are public officials of the Korea Petroleum Business Act from 2000, and there is no error in the judgment below.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)