2013Do7871 A. Improper action after the acceptance of a bribe

B. Acceptance of bribe

1. (a) A;

2. B

Defendants and Prosecutor (Defendant 1)

Attorney C (Defendant 1)

Attorney D (Defendant 2)

Seoul High Court Decision 2013No143 Decided June 14, 2013

December 12, 2013

The part of the lower judgment against Defendant A is reversed, and that part of the case is remanded to the Seoul High Court.

Defendant B’s appeal is dismissed.

The grounds of appeal are examined.

1. On the part of the illegal disposition after the acceptance of the bribe against Defendant A, and on the part of the acceptance of the bribe due to golf contact, money acceptance, and meal contact

A. Examining the reasoning of the judgment below and the evidence duly admitted by the court below, the court below is just in holding that the part of the facts charged in this case, other than the part of the bribery charge No. 8, 12, and 24 in the crime committed against Defendant A, and the part of the bribery charge No. 14 in the crime log No. 8, 12, and 24 in the judgment of the court of first instance, is guilty on the grounds as stated in its reasoning. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the relation to the duties

B. The prosecutor appealed to the portion of the acceptance of bribe No. 14 and the portion of the acceptance of bribe No. 8,12,24 from among the list of crimes in the judgment of the court of first instance, and the remaining part of the acceptance of bribe No. 2 and No. 7 from the list of crimes in the judgment of the court of first instance except the respective acceptance of bribe No. 2 and No. 2 and No. 7 from among the list of crimes in the judgment of the court of first instance. However, there is no indication in the petition of appeal on the grounds for appeal and there

C. Defendant A filed an appeal against each part of the acceptance of bribe Nos. 2 and 7 in the crime sight table (2) in the judgment of the court of first instance, but there is no indication in the petition of appeal as to the grounds for appeal nor any statement in the appellate brief as to the grounds for appeal.

2. The part on acceptance of bribe due to the collection of congratulatory money against Defendant A (the Prosecutor’s grounds of appeal and the grounds of appeal against Defendant A are examined together)

A. According to the reasoning of the judgment below, the court below found Defendant A not guilty on the ground that it is difficult to readily conclude that the amount of the cattle was a bribe provided in relation to the duties of Defendant A beyond the scope of social norms and was a bribe provided in relation to the duties of Defendant A, on the grounds as stated in the judgment of the court of first instance, for the remaining portion except for the sequence 1, 20, 25, 28, 33, 38, and 43 from among the acts of receiving and receiving the cattle money listed in the attached Table 1 (3) of the crime list of the judgment, on the grounds of the following reasons: (a) some of the donors who sent the cattle money to Defendant A had been able to maintain their friendship and participated in the slope of the other party’s house; and (b) the amount of the livestock money received by Defendant A cannot be deemed excessive to escape social norms; and (c) it did not clearly dispute whether Defendant A constitutes a bribe of the cattle.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

Since the legal interest of the crime of bribery is the process of performing the duties and the public trust in society, the crime of acceptance of bribe is established when the number of money received from the public official's duties and the public official is in quid pro quo relation, and there is no need to consider the existence of a solicitation, the relationship between individual duties and an quid pro quo relation. Whether a public official's profit constitutes a bribe as an unjust profit with a quid pro quo relation should be determined after considering all the circumstances, such as the contents of the public official's duties, the relationship between the provider of the duties and the benefit, whether there is a special relationship between the two parties, the difference of profit, the circumstance and time of receiving the benefit, etc. In light of the legal interest of the crime of bribery, whether the crime of bribery is a fair performance of duties, trust in the society, and the impossibility of a public official's act of performing his duties, and whether the public official is suspected of being fair in the performance of duties due to the receipt of the benefit is the basis for determining the nature of the crime of bribery (see Supreme Court Decision 99Do4940, Jan. 21, 20000).

Unless there exist any circumstances, it cannot be deemed that there is no relation with the duties of a public official, and if a public official received money or valuables in connection with the duties of a public official, even if he/she received money or valuables by lending the form of a private case, such money or valuables received shall be a bribe (see Supreme Court Decision 9Do4940 delivered on January 21, 200, etc.).

According to the evidence duly adopted and examined by the court below, Defendant A was the chief of the Seoul Regional Employment and Labor Office E-General, who is a special judicial police officer in charge of guiding and supervising the prevention of accidents in the workplace, and investigation into violations of the Occupational Safety and Health Ordinance; Defendant A prepared a list of Cheong-gu dispatch and sent Cheong-gu Cheong-gu Ma-gu Ma-gu Ma-gu Ma-Ma-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

In light of the above facts in light of the legal principles as seen earlier, Defendant A was in a position to be involved in the investigation of violations against business entities subject to guidance and inspection, and thus receiving congratulatory money by sending them to the persons related to the business entities subject to guidance and inspection constitutes an act of receiving money or goods from the business entity subject to guidance and inspection; there is a position that there is concern that a person related to the business entity subject to guidance and inspection may not be paid any disadvantage if he or she did not pay a congratulatory money or expect the business convenience through creating a smooth relationship with Defendant A; and Defendant A’s sending and receiving of the said pathy can not be deemed as having no relation with his or her duties, barring any special circumstances.

However, Defendant A asserted that the amount of congratulations received as above falls under the case of private capital and is not a bribe. Thus, the court below held that each act of receiving the said cattle constitutes a bribe. Thus, the court below held that the act of receiving the said cattle constitutes a bribe, such as whether there are special circumstances to deny the relation with each act of receiving the said cattle, that is, whether the donor has been repaid the money that he received from the Defendant A in connection with or received from the Defendant A, and whether it can be deemed as merely an ordinary reward in light of the social norms, or whether it can be clearly recognized that the act of receiving the cattle would be caused by the need for social friendship with the Defendant A, and that the act of receiving the cattle was judged as a bribe even if it borrowed the form of private capital, which is not recognized under such special circumstances.

Nevertheless, without sufficiently examining the above matters, the court below rendered a verdict of not guilty as to some of the acts of receiving money for congratulationss listed in the annexed Table (3) in the judgment of the court of first instance on the sole basis of the circumstances stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles on duties related to duties in the bribery, which led to failure to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. As to Defendant B

In light of the evidence duly admitted by the court below and the court below, it is just that the court below found Defendant B guilty of the facts charged (other than the part not guilty in the court of first instance) on the grounds as stated in its reasoning, and contrary to the allegations in the grounds of appeal by Defendant B, there were no errors in the misapprehension of the legal principle as to the duty relationship of bribery, or in violation of the principle of free evaluation of evidence

4. Scope of reversal

Ultimately, among the judgment of the court below, the part of acceptance of bribe against Defendant A due to the receipt of congratulatory money against Defendant A should be reversed. Of the remaining facts charged against Defendant A, the part which the court below found guilty should be reversed together in relation to the above reversed part and the single comprehensive crime or concurrent crimes under the former part of Article 37 of the Criminal Act. The part which found Defendant not guilty should be reversed in relation to the above reversed part and the single comprehensive crime or single comprehensive crime.

5. Conclusion

Therefore, the part of the judgment of the court below against Defendant A is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Kim So-young