[1] Requirements for establishing a crime of abuse of authority

[2] The meaning of "tender" as a constituent element of Article 129 of the Criminal Code

[1] Article 123 of the Criminal Act / [2] Article 129 of the Criminal Act

[1] Supreme Court Decision 2002Do6251 Decided May 27, 2004 (Gong2004Ha, 1110), Supreme Court Decision 2004Do2899 Decided October 15, 2004, Supreme Court Decision 2002Do3453 Decided April 15, 2005 (Gong2005Sang, 773), Supreme Court Decision 2005Do666 Decided May 26, 2006

Defendant 1 and one other

Defendants and Prosecutor

Attorney Ahn Yong-soo et al.

Daejeon High Court Decision 2003No631 delivered on June 4, 2004

The conviction part against Defendant 1 among the judgment below is reversed, and that part of the case is remanded to Daejeon High Court. Defendant 2’s appeal and prosecutor’s appeal are dismissed.

1. Judgment on the Defendants’ grounds of appeal

A. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

The court below determined that Defendant 1, a superintendent of education of the Chungcheongnam-do Office of Education, received 10,00,000 won from Nonindicted 1, a candidate for promotion of the officer in the middle of May 2001, as well as 10,000 won from Nonindicted 1, a candidate for promotion of the officer in the office of education in the middle of the year 2002, and received the bribe in connection with his duties, on the grounds as stated in its reasoning, based on a comprehensive review of the relevant employment evidence. Although there are some somewhat inappropriate points in the court below's reasoning, the court below's fact-finding and determination of the court below are just and acceptable, and there

B. As to the Defendants’ abuse of authority

(1) The crime of abuse of authority is not established as a means of assault or intimidation, but it is established when a public official entrusts the exercise of authority to practically and specifically, unlawful or unreasonable acts with regard to matters belonging to the general official authority. The general official authority does not necessarily require legal coercion. If it is abused, it is sufficient to allow the exercise of authority to perform a non-legal act or interfere with legitimate exercise of rights (see, e.g., Supreme Court Decisions 2002Do6251, May 27, 2004; 2004Do2899, Oct. 15, 2004). Thus, the argument in the grounds of appeal that the defendants are not in a position to exercise coercive power against the preliminary review committee, or there is no assault or intimidation, and thus a crime is not established.

(2) The court below cited the judgment of the first instance that found Defendant 2 guilty of the protocol of examination of the suspect as to Defendant 2 prepared by the prosecutor (the fifth interrogation protocol) and the investigation report (the hearing report of Nonindicted 2 through 6 and the prosecutorial assistant call Nonindicted 2, 3, 4, 6, and 7 to Nonindicted 3, 6, and the prosecutorial assistant call to Nonindicted 2, 3, 6, and 7). According to the evidence list, according to the above part of the protocol of examination of suspect suspect as to the above statement and the above contents among the above investigation report are not completely distinguishable from the contents of Defendant 2’s statement and the remaining contents of the prosecutorial assistant report, but it can be seen that Defendant 2’s counsel acknowledged the whole authenticity, voluntariness, and contents of the protocol of examination of suspect suspect as to the above investigation report during the second interrogation date, and the above investigation report is written in the evidence list as all defense attorneys

Since consent to evidence is an important procedural act that grants admissibility of evidence, in principle, it should be made explicitly. In light of the fact that it is a principle that if the defendant or his/her defense counsel expresses his/her opinion on investigation documents, it is different in nature from one document, and for example, if a witness’s statement or his/her specialized statement is made together, it is divided into two parts of the facts charged and the statement is made by the above person’s statement, it is difficult to see that the defendant consented to the part on each of the above statements and the contents of the hearing.

Therefore, the part of the fifth protocol of interrogation of Nonindicted 2 through 6 in the above five protocol of interrogation was not acknowledged by the original person making the statement, and its authenticity is not acknowledged by the original person making the statement, and the contents hearing the above investigation report constitute re-specialized evidence, but it is difficult to see that the defendant's consent exists as seen above, and it is difficult to recognize the admissibility of evidence. Thus, the court below's adoption of the evidence without admissibility as

On the other hand, examining the remaining evidence duly examined and adopted by the court below and the court of first instance, according to the records, it can be sufficiently recognized that the crime of abuse of authority was committed by having a preliminary examiner who was at the time of the preliminary examination for promotion of Grade V official in 2001, 2002, and 203, the head of the personnel management division or the head of the general affairs division, as the time of the original trial, directly or through Non-Party 8, asked the preliminary examiner who was at the time of the preliminary examination for promotion to give a high or lower score to a specific promotion target or to give a lower score to him or through Non-Party 8, thereby requiring the preliminary examiner to conduct the examination according to such request. Therefore, the above illegality of the court below is not affected by the conclusion of the judgment, and therefore there is no violation of the rules of evidence or misapprehension of legal principles that affected the conclusion

(3) Other defense counsels dispute the admissibility of the protocol of statement and protocol of suspect interrogation of 15 persons dated July 14, 2003. However, it is difficult to conclude that each of the above protocol was not prepared by the prosecutor only for the same reasons as the first instance court and the lower court, which conducted the investigation of evidence, and the fact that the above protocol was not prepared by the prosecutor, including the summons of 15 witnesses and suspects on the same day. The allegation in the grounds of appeal in this part is also rejected.

2. Judgment on the grounds of appeal by the prosecutor

A. As to Defendant 1’s acceptance of bribe

The court below found Defendant 1 not guilty of this part of the facts charged on the ground that: (a) Nonindicted 9 mentioned Defendant 1 as Defendant 1 with an envelope, and (b) remitted the entire amount of the money contained in the envelope to Defendant 1’s benefit account in the name of Defendant 1; and (c) Defendant 1 delivered Nonindicted 9 with the intention to read it well at the event held after the aforementioned regular period of personnel management to Nonindicted 9, in light of all the circumstances, including: (a) Defendant 1 delivered at the event held by the Chungcheongnam Education and Science Research Institute after the said regular period of personnel management to Defendant 1, he read it well; and (b) Defendant 1 appears to have received money of KRW 1 million without the intention to obtain it immediately returned. In light of the records, the judgment of the court below is just and acceptable; and there is no error of law such as misconception of facts due to violation of the rules of evidence and misunderstanding of legal principles as to the crime of bribery, as alleged in the grounds for appeal.

B. As to Defendant 1’s promise of bribe

The court below held that the "agreement" of a bribe, which is a constituent element of Article 129 of the Criminal Code, refers to an agreement between the parties to accept a bribe, and the "agreement" refers to an agreement between the parties, and although there is no restriction or explicit means, the parties' declaration of intent to give a bribe in connection with their official duties in the future should be finally consistent with the agreement, and there is insufficient evidence to prove that there is a conclusive agreement between the parties to receive half of sales profit under the consideration in cooperation with the non-party 10 for the sale of scientific teaching materials for reasons as stated in its reasoning, considering the adopted evidence, there is insufficient evidence to prove that there is a final agreement with the non-party 10 to receive half of sales profit. In light of the records, the court below's fact-finding and judgment are justified

C. As to Defendant 2’s obstruction of performance of official duties by fraudulent means

According to the records, although Defendant 2 committed unlawful acts, such as demanding a preliminary examiner to conduct an adequate evaluation of a specific promotion target in the preliminary examination process for promotion target in 2001 and 2002, Defendant 2 was found to have been present at the personnel committee for the selection of promotion target officials in 2001 and 2002 as an executive secretary and reported to the effect that “it was objectively and fairly operated,” the above report is merely a report on the general operation process of the preliminary examination committee as the head of personnel management division or the chief of the general affairs division, i.e., the selection process of the preliminary examination committee members to secure objectivity of the preliminary examination committee, and the examination criteria to ensure the objectivity of the preliminary examination committee, and thus, it cannot be deemed to have been falsely reported. In light of the above, it cannot be deemed that the personnel committee members with the authority to examine and determine the evaluation criteria and deliberation data independently, and thus, Defendant 2 cannot be deemed to have committed obstruction of the performance of official duties.

The judgment of the court below that made the conclusion is just and acceptable, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the obstruction of performance of official duties by deceptive means, as alleged in the

3. Ex officio determination

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which found Defendant 1 guilty by applying Article 2 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 7767 of Dec. 29, 2005, hereinafter referred to as the "former Act") before the amendment with respect to the crime that Defendant 1 received a bribe of KRW 10 million from Nonindicted 1.

However, Article 2(1) of the former Act, which was amended by Act No. 7767 of Dec. 29, 2005 and enforced on March 30, 2006, which was after the decision of the court below, shall be adjusted to “30 million won or more” as the basis for punishing a person who committed a crime as provided in Article 129(1) of the Criminal Act, and thereby, Defendant 1’s above act cannot be punished by the above Act, and it shall not be punished by imprisonment for a limited term of not more than five years or suspension of qualification for not more than 10 years, and its statutory punishment shall be changed to “a change in punishment after judgment” as provided in Article 383 subparag. 2 of the Criminal Procedure Act as to Defendant 1’s crime. Accordingly, the part of the judgment below as to Defendant 1’s above and the part as provided in Article 37 of the former part of the Criminal Act as to Defendant 1’s crime of abuse of authority is no longer concurrently maintained.

4. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. Defendant 2’s appeal and prosecutor’s appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)