[1] The meaning of "a person who is a public official or an arbitrator" under Article 129 (2) of the Criminal Code, where an executive or employee of an association is deemed a public official for the purpose of applying penal provisions under Article 82 of the former Urban Development Act

[2] The meaning of "interest", which is the content of a bribe in the crime of bribery, and whether obtaining an opportunity to participate in an speculative business constitutes such benefit (affirmative)

[3] The case affirming the establishment of a prior bribery in case where the defendants, who are highly likely to be elected as an executive officer of the urban development cooperative or an executive director, received benefits in the manner of receiving opportunities to complete the registration of transfer of ownership in response to the solicitation of the duties in charge

[1] Article 82 of the former Urban Development Act (amended by Act No. 735 of Jan. 14, 2005) and Article 129 (2) of the Criminal Act / [2] Article 129 of the Criminal Act / [3] Article 82 of the former Urban Development Act (amended by Act No. 7335 of Jan. 14, 2005), Article 129 (2) of the Criminal Act

[2] Supreme Court Decision 200Do2251 Delivered on May 10, 2002 (Gong2002Ha, 1439) Supreme Court Decision 2002Do3539 Delivered on November 26, 2002 (Gong2003Sang, 279) Supreme Court Decision 2003Do4293 Delivered on July 15, 2005 (Gong2005Ha, 1372)

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Mali-ro et al.

Daejeon High Court Decision 2009No38 decided July 8, 2009

Each appeal shall be dismissed.

The grounds of appeal are examined [to the extent of supplement in case of supplemental appellate briefs not timely filed by Defendant 1 and Defendant 2’s defense counsel to the extent of supplement in case of supplemental appellate briefs not timely filed.]

1. As to the Prosecutor’s Grounds of Appeal

After finding the facts in its holding, the lower court found Defendant 2 not guilty of this part of the facts charged on the ground that it is difficult to believe that Defendant 1’s statement is a bribe, and there is no other sufficient evidence to prove that Defendant 1 received a bribe from Defendant 2 in relation to his duties as the president of the urban development cooperative.

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are justified.

The court below did not err by misapprehending the facts against the rules of evidence as alleged in the grounds of appeal.

The prosecutor's ground of appeal is without merit.

2. As to the Defendants’ grounds of appeal

Article 82 of the former Urban Development Act (wholly amended by Act No. 735 of Jan. 14, 2005; hereinafter the same applies) provides that “An officer or employee of a cooperative shall be deemed a public official in the application of Articles 129 through 132 of the Criminal Act” and Article 129(1) of the Criminal Act as well as Article 129(2) of the same Act also provides that “a person who is a public official or an arbitrator” shall be deemed to be a public official or an arbitrator, such as a person waiting to pass and pass an employment examination for public officials, or a person whose election becomes final and conclusive by election, shall be deemed to include not only those who are expected to be a public official or an arbitrator, but also those who are likely to be a public official or an arbitrator even if the possibility of taking public office is not clear. Furthermore, a bribe in the crime of bribery shall include not only money, goods, or other property interests, but also all tangible and intangible benefits that meet human demand and desire, and shall also be interpreted as 130.

Examining the facts found in the judgment below in light of the above legal principles, it is sufficient to view that at the time of this case, the defendants were highly probable to be elected as the president or executive director of the association, who is an executive officer of the association of this case deemed public officials in the application of the penal provisions. Furthermore, in order not to be classified as a person subject to cash liquidation, Defendant 2 was necessary to complete each of the instant registration transfer in order to acquire the ownership of the land in the business district of this case and to acquire the status of the association members, and Nonindicted 2, who was in charge of the instant urban development project, as the Daejeon Branch President of the Daejeon District of Nonindicted Company 1, provided the defendants with an opportunity to complete each of the instant registration transfer of ownership, constitutes a profit sufficient to satisfy the defendants' desire, and it is reasonable to view that the defendants who will be an executive officer of the instant association, were in receipt of bribe from Nonindicted 2 to the effect that the Defendants were able to enter into the instant contract with the association and to continuously acquire economic benefits by maintaining the status of the corporation.

The judgment of the court below on the same purport is justified.

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

On the other hand, Article 82 of the former Urban Development Act shall apply to the facts charged in this part of the facts charged, although Article 84 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 9444 of Feb. 6, 2009), the court below erred in the application of statutes by applying Article 84 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 9444 of Feb. 6, 2009), but there is no difference in the fact that the above provisions are regarded as a public official in applying

3. Conclusion

Therefore, each 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)