Whether the crime of offering a bribe under Article 133(1) of the Criminal Act is established against a person who promises, offers, or expresses his/her intent of offering, where an executive officer, employee, etc. of an association established by a landowner in an urban development zone for urban development has obtained unjust profits in connection with his/her duties (affirmative)

Article 84 of the Urban Development Act provides that "the executives and employees of a cooperative, and supervisors performing their duties under Article 20 shall be deemed public officials in the application of the penal provisions under Articles 129 through 132 of the Criminal Act." Thus, the officers and employees of an association established by the landowner in an urban development zone for urban development (hereinafter referred to as "urban Development Cooperatives") shall be the subject of crimes under Articles 129 through 132 of the Criminal Act. Accordingly, if the officers and employees, etc. of an urban development cooperative have gained unfair profits in connection with their duties, such profits also constitute "the bribe as stated in Articles 129 through 132" under Article 133(1) of the Criminal Act, and thus, the crime of offering a bribe under Article 133(1) of the Criminal Act is established against a person who promises, delivers, or expresses his/her intent to give such bribe.

Articles 129, 133(1) of the Criminal Act, Article 84 of the Urban Development Act

Supreme Court Decision 71Do1786 Decided November 23, 1971 (Gong1975, 8615) 70Do2660 Decided June 24, 1975

Defendant

Defendant and Prosecutor

Law Firm LLC, Attorneys Lee Hong-hoon et al.

Busan High Court Decision 2013No439 decided February 6, 2014

All appeals are dismissed.

1. The defendant's grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the grounds of appeal Nos. 1 and 2

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court is justifiable to have determined that each of the facts charged in the instant case was guilty of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (excluding the part not guilty of the lower court). In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the elements of fraud, the opposing power of the right to recompense for development outlay, and the acquisition of ownership, or by misapprehending the logical and empirical rules and by

B. Ground of appeal No. 3

Article 84 of the Urban Development Act provides that "the executives and employees of a cooperative, and supervisors performing their duties under Article 20 shall be deemed public officials in the application of penal provisions under Articles 129 through 132 of the Criminal Act." Thus, the executives and employees of an association established for urban development by landowners in an urban development zone (hereinafter referred to as "urban Development Cooperatives") shall be the subject of offenses under Articles 129 through 132 of the Criminal Act. Accordingly, if the executives and employees, etc. of an urban development cooperative have gained unfair profits in connection with their duties, such profits constitute "the bribe described in Articles 129 through 132" under Article 133(1) of the Criminal Act, and thus, the crime of offering a bribe is established against a person who has promised, delivered, or expressed his/her intent to give the bribe (see Supreme Court Decisions 71Do1786, Nov. 23, 197; 206Do6266, Jun. 6, 197).

Therefore, we cannot accept the allegation in the grounds of appeal that Article 84 of the Urban Development Act does not directly stipulate Article 133 of the Criminal Act, and that punishing a person who has offered a bribe to an executive officer or employee of the Urban Development Association as a crime of offering a bribe goes against the principle of no punishment without law,

Furthermore, examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted by the lower court, the lower court did not err by misapprehending the legal doctrine on the duty relationship in the crime of bribery, which found the Defendant guilty of the offering of a bribe among the facts charged in the instant case.

2. Prosecutor's grounds of appeal are examined.

Examining the reasoning of the judgment below in light of the records, the court below is just in finding that there was no proof of criminal facts as to the facts charged that the defendant provided a bribe of KRW 180 million to the non-indicted on February 25, 201, and found the defendant not guilty. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the establishment of the crime of bribery or by exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

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

Justices Kim So-young (Presiding Justice)