[1] Requirements for establishing a crime of good offices and taking property under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[2] The case holding that in case where the defendant introduced a member of the National Assembly in the relevant local constituency upon a request from the referral client for the approval of the redevelopment project plan, so that the referral client can arrange the head of the Gu who is the referral party through the above member of the National Assembly to request the approval of the project plan, and in return, the above referral client received the apartment house from the above referral requester

[1] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 3 of the Act on the Aggravated Punishment, etc. of

Defendant

Defendant

Law Firm Kelel, Attorneys Sogio-dam et al.

Seoul High Court Decision 2005No142 delivered on December 23, 2005

The appeal is dismissed.

We examine the grounds of appeal.

1. In order to establish the crime of mediation acceptance and taking over as provided in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "crime of mediation acceptance"), an act of receiving money, valuables, or other benefits under the pretext of mediation or mediation between a person who has requested mediation and a public official who may become the other party to such mediation shall be committed, and the crime of mediation acceptance and taking over shall also be committed by participating in such act through public offering or sharing of action with intent of joint processing.

2. A. However, the court below rejected the defendant's appeal on the following grounds: although the defendant did not receive any request from the non-indicted 1 for approval of the redevelopment project plan related to the construction of the main complex building of this case from the Mapo-gu Seoul Metropolitan Office, and the non-indicted 2, a member of the local council, introduced the non-indicted 1, a high school and the local council, to the non-indicted 1 in order to identify the reason for the long time after receiving a request from the non-indicted 1, and thereby, did not receive any request from the government office of Mapo-gu to promptly receive a request from the non-indicted 1, the court below determined that the non-indicted 1 acquired the apartment of this case, which belongs to the duties of the head of Mapo-gu Office who is a public official, by allowing the non-indicted 1 to make only the head of Mapo-gu office possible through the request for approval of the project plan.

B. In a case where a public official introduced a person to act as a broker without acting as a broker upon receiving a request for a matter pertaining to a public official’s duties, the crime of mediation and acceptance under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is established (see Supreme Court Decision 2001Do3931, Oct. 8, 2002).

According to evidence duly adopted and examined by the first instance court, Non-Indicted 3 and Non-Indicted 1, who operated the main complex building of this case, planned to build a new building and purchased a site to implement the said project. On April 21, 2003, Non-Indicted 1 sent an official door to the head of the Mapo-gu regional economic division at the end of April of the same year to the effect that it is difficult to implement the project due to the student acceptance by the Seo-gu Office of Education. Non-Indicted 1 can find Non-Indicted 4 of the Mapo-gu regional economic division at the Seo-gu Office of Education so that the approval of the project was delayed as soon as possible, and the approval of the project was requested by Non-Indicted 3 to assist Non-Indicted 1 in the implementation of the project plan by requesting the head of Mapo-gu Office of Education to do so. Non-Indicted 1 and the head of Mapo-gu Office of Education to introduce Non-Indicted 2 an opportunity for the approval of the project plan without consultation.

In full view of the above facts, it is reasonable to view that the defendant received the apartment of this case from Nonindicted 1 in return for Nonindicted 1's request for approval of the business plan, which is a matter belonging to the duties of the head of Mapo-gu Office, and introduced Nonindicted 2 to Nonindicted 1, a member of the National Assembly, so that Nonindicted 1 can meet the head of Mapo-gu through Nonindicted 2 or request for approval of the business plan.

3. First of all, in light of the above legal principles, even in a case where the court below used the quoted precedents to introduce a person who acts as a broker and does not act as a broker in receipt of a request for matters belonging to the public official's duties, it is not appropriate to assume that the crime of acceptance of referral is established as provided in Article 3 of the Act on the Aggravated Punishment, etc.

However, in light of the records, the court below was just in recognizing that the defendant was able to help the head of Mapo-gu through Nonindicted 2 on May 10, 2003 by introducing Nonindicted 2 to Nonindicted 1 upon the request of the Office of Education for the consultation with the Office of Education and approval of the project plan so that the defendant can be prompt, and that Nonindicted 1 may request the head of Mapo-gu through Nonindicted 2 to promptly meet the business plan. Nonindicted 1 may receive the help from the defendant and to talk about the difficulties in the business of the head of Mapo-gu by obtaining an opportunity to contact with the head of Mapo-gu. Accordingly, the court below rejected the defendant's appeal on the premise that the defendant was able to receive assistance from Nonindicted 3 and the fact that the defendant gave the apartment house in this case to the head of Mapo-gu. Furthermore, according to this, the court below rejected the defendant's appeal on the pretext of mediating or mediating the between Nonindicted 1 and the head of Mapo-gu, a broker, in cooperation with the above member of the National Assembly.

Supreme Court Decision 99Do963 delivered on May 11, 1999 and Supreme Court Decision 2004Do5655 Delivered on November 12, 2004, etc. cited as the grounds of appeal, are inconsistent with this case and its main issues, and are thus inappropriate to be invoked as they are.

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

Justices Ahn Dai-hee (Presiding Justice)