[1] The elements for establishing the crime of bribery and the meaning of "public officials taking advantage of their status"

[2] The case affirming the judgment below which acquitted the defendant on the ground that the defendant was not guilty on the ground that the defendant was not in a de facto relationship with the promotion of Eul who was employed by the head of the selection management office by taking advantage of his position at the time of receiving the above money, and was charged with bribery under the Act on the Aggravated Punishment, etc. of Specific Crimes on the ground that he received a total of KRW 50 million by requesting the selection management office for the promotion of the military team by requesting the Eul who was in front of the examination of the promotion of the military team from the third class civilian employees of the 3rd class who were employed by the organization examination team at the staff team for the information management support team

[1] Article 132 of the Criminal Act / [2] Article 132 of the Criminal Act, Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Supreme Court Decision 94Do852 delivered on October 21, 1994 (Gong1994Ha, 3155), Supreme Court Decision 94Do2687 delivered on January 12, 1995 (Gong1995Sang, 937), Supreme Court Decision 99Do5294 delivered on October 12, 2001 (Gong2001Ha, 2507)

Defendant

Prosecutor

Law Firm Han Young, Attorney Kim Sung-sung

High Court for Armed Forces Decision 2010No42 Decided August 10, 2010

The appeal is dismissed.

We examine the grounds of appeal.

The elements for the establishment of a public official to accept, demand, or promise a bribe in connection with the referral of matters belonging to the duties of another public official by taking advantage of his/her status. Here, the term "public official taking advantage of his/her status" cannot be deemed as a case where he/she uses a private relationship, such as friendship, kinship, or simply uses a public official's status. At least, a public official who is legally or practically affected by the handling of affairs handled by another public official should use his/her status (see Supreme Court Decision 94Do852, Oct. 21, 1994, etc.).

The summary of the facts charged in the instant case is that the Defendant was discharged from active service as an order from February 15, 2003 to June 30, 2006 by the Ministry of National Defense and was serving as an organization diagnosis officer in charge of diagnosing and coordinating the structure and functions of the Army by examining the feasibility of organization and organization of each unit in the Army at the information operations support team of the Army headquarters from July 1, 2006 to July 1, 2006, and by examining the feasibility of organization and organization of the Army, such as creation or decommissioning of a unit, or increase or decrease of organization, etc., as a Class-III civilian military employee of the Army who was in charge of diagnosing and coordinating the structure and functions of the organization, who was requested by Nonindicted 1, the head of the personnel affairs team of the Army, at the request of Nonindicted 2, the head of the office for the selection and management of the staff team of the Army, who was prior to the examination of the rank of the Army, and received the aggregate amount of KRW 50 million provided by Nonindicted 1.

In light of the circumstances acknowledged by the first instance court and the evidence duly adopted and examined by the lower court, the lower court found the Defendant not guilty of the facts charged around the instant case, on the ground that it was insufficient to deem that the Defendant had a de facto relationship with Nonindicted 2, who was at the time of receiving the instant money from Nonindicted 1, by taking advantage of his position, could have an impact on the promotion of Nonindicted 2,

Examining the reasoning of the judgment below in light of the above legal principles and records, the above judgment of the court below is just.

The court below did not err in the misapprehension of the rules of evidence or in the misapprehension of legal principles as to brokerage and bribery as alleged in the grounds of appeal.

Meanwhile, although the military prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the part concerning the conjunctive charges of this case among the judgment below, the appellate brief does not state the grounds for appeal as to that part. Therefore, the appeal as to this part is without merit.

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

Justices Yang Chang-soo (Presiding Justice)