The meaning of “the commission of a crime under Articles 129 and 130 of the Criminal Act,” among the constituent elements of Article 131(1) of the Criminal Act, which provides for the crime of acceptance of bribe, refers to “the commission of a crime under Articles 129 and 130 of the Criminal Act.” / Whether a series of series of acts of acceptance of bribe and illegal acts were committed repeatedly for a certain period under a single and continuous criminal offense, and causation is recognized between the act of acceptance of bribe and illegal acts, and where legal benefits are identical, whether the act of acceptance of bribe which was committed after the last illegal act should be punished as a comprehensive crime of acceptance of bribe and illegal acts prior to

Article 131(1) of the Criminal Act, which provides for the crime of acceptance of bribe, stipulates that a public official or an arbitrator commits an unlawful act by committing a crime under Articles 129 (Acceptance of Bribe and Advance Acceptance) and 130 (Delivery of Third Party Acceptance) of the Criminal Act. Here, “the commission of a crime under Articles 129 and 130 of the Criminal Act” does not necessarily mean that an unlawful act should be performed after the completion of the act of acceptance of bribe. It does not mean that an unlawful act should be included in cases where an unlawful act was committed during the act of acceptance of bribe, etc. like the basic act in a combined crime or a contingent aggravated crime. Therefore, if a single and continuous criminal act was committed repeatedly and repeatedly for a certain period under a single and continuous criminal offense, causation is recognized between the act of acceptance of bribe and the act of unlawful act, and if legal benefits are the same, it is reasonable to punish the act of acceptance of bribe which was reduced after the last unlawful act as well as the last illegal act of acceptance of bribe and the act of acceptance of bribe.

Articles 37, 129, 130, and 131(1) of the Criminal Act

Defendant

Prosecutor

Attorney Cho Jin-jin

Seoul High Court Decision 2020No296 decided August 20, 2020

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Summary of this part of the facts charged

From May 2016 to August 2018, the Defendant was in office as a technical secretary of the Ministry of Environment (department name omitted), and was in office as a member of the Ministry of Environment’s countermeasures against “TF for remedy of damage caused by humidifier disinfectant” from August 2018 to February 2019 (title 1 omitted), from February 2019 to May 2019 (title 2 omitted), and from May 2019 to May 2019 (title 3 omitted).

When the Defendant came to know Nonindicted 2, a person in charge of Nonindicted Party 1, in the process of consultation on the calculation of the contribution of the Special Remedy Account for Damage Caused by humidifier disinfectant, working for the Ministry of Environment (such as the Damage Relief TF) Countermeasures Team, etc., the Defendant attempted to provide information including the trends of environmental measures related to the humidifier disinfectant case, the internal discussions and discussions, and the future schedule, in return for receiving gifts or entertainments from Nonindicted Party 1, as well as information that has been or is planned to be provided by the Ministry of Environment.

Upon receipt of a solicitation from Nonindicted 2 to the effect that the above provision of official convenience is changed, the Defendant received a receipt of bribe on 17 occasions from the last place of origin from April 18, 2017 to January 31, 2019, and provided inside information, etc. of the Ministry of Environment as shown in the attached Form No. 2 of the judgment below, and committed an unlawful act.

2. The judgment of the court below

The court below held that the facts charged in this part of the facts charged as the blanket crime after the acceptance of a bribe should be acknowledged, in principle, individual acts constituting the blanket crime after the acceptance of a bribe must meet the elements of the crime of illegal acceptance after the acceptance of a bribe. Since the crime of illegal acceptance after the acceptance of a bribe is established at the time when a public official committed an illegal act after the receipt of a bribe or a third party acceptance of a bribe, and there should be causation between the act of acceptance of a bribe and the illegal act. Thus, if a public official did not receive, demand, or promise a bribe after promising to do an illegal act, the individual act of acceptance of a bribe can only constitute the crime of acceptance of a bribe, instead of the crime of illegal acceptance after the acceptance of a bribe.

After that, the court below found that each act of acceptance of bribe Nos. 1 through 15 of the annexed list of crimes (1) in the judgment of the court below is a causal relationship between each act of acceptance of bribe listed in the annexed list (2) of the annexed list of crimes committed thereafter, and thus, each act of acceptance of bribe Nos. 16, 17 of the annexed list of crimes in the judgment of the court below can be regarded as an inclusive crime of illegal acceptance after the acceptance of bribe. However, since there is insufficient evidence to support that the defendant committed the illegal act after the time of the acceptance of bribe, and there is no other evidence to support this, the court below found that the act of acceptance of bribe Nos. 16, 17 of the annexed list of crimes in the judgment of the court below was not an inclusive crime of illegal acceptance after the acceptance of bribe, and found the defendant guilty only for the part of the acceptance of bribe which is a reduced fact.

3. Judgment of the Supreme Court

A. Article 131(1) of the Criminal Act, which provides for an illegal act after the acceptance of a bribe, stipulates that a public official or an arbitrator commits an illegal act under Articles 129 (Acceptance of Bribe and Advance Acceptance) and 130 (third-party Acceptance) of the Criminal Act. Here, the term “violation of a crime under Articles 129 and 130 of the Criminal Act” does not necessarily mean that an illegal act should be performed after the completion of the act of bribery, etc., and it should also be deemed that the act of bribery was included in cases where an unlawful act was committed while the act of bribery was committed. Accordingly, if a single and continuous criminal act of bribery was committed repeatedly for a certain period under a single and continuous criminal offense, causation is recognized between the act of bribery and the act of unlawful act of bribery, and if the legal interest is equal, it is reasonable to punish the act of bribery committed after the last illegal act as a comprehensive punishment for the crime of bribery and subsequent act of bribery.

B. Examining in light of the above legal principles and related legal principles and evidence duly admitted, each act of acceptance of bribe listed in the list of crimes (1) in the judgment of the court below which the court below found the defendant guilty against the defendant constitutes a comprehensive crime since not only the act listed in the list of crimes Nos. 1 through 15 but also the act listed in the remaining Nos. 16,17 and also the act committed repeatedly under the criminal intent and continued to violate the same legal interest. Thus, it is not only a comprehensive crime but also an unlawful act listed in the list of crimes (2) in the judgment of the court below. Further, each act of acceptance of bribe listed in the table of crime Nos. 16,17 in the list of crimes in the judgment of the court below constitutes a comprehensive crime after acceptance of bribery, along with the remainder of the crime that the court below found guilty.

Nevertheless, even if the crime of illegal acceptance after acceptance of a bribe is established as a blanket crime, the court below recognized it as separate crime of comprehensive acceptance of a bribe from the crime of comprehensive acceptance of a bribe and judged part of the judgment on the ground that each act of acceptance of a bribe Nos. 16, 17, as stated in the list of crimes (1) as indicated in the judgment of the court below, was committed later than the last illegal act listed in the list of crimes in the judgment of the court below on the erroneous premise that the act of acceptance of a bribe should be prior to the unlawful act. In so determining, the court below erred by misapprehending the legal principles on the elements of the crime of illegal acceptance after acceptance of a bribe, and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit

4. Scope of reversal

For the same reason, the part of the judgment of the court below on acquittal of the reasons should be reversed. However, the part on the reversal is not only a crime of acceptance of bribe which is found guilty at the court below, but also a comprehensive crime with the part on illegal disposition after acceptance of bribe, and the remaining convictions also are concurrent crimes as stipulated in the former part of Article 37 of the Criminal Act, and all of them should be sentenced to a single punishment. Thus, the judgment of the court below should be reversed

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court 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 Kim Jae-hyung (Presiding Justice)