[1] Whether other public officials who are parties to good offices or their duties should be specified in detail in order to establish the crime of acceptance of bribe (negative), and whether there are pending issues to be resolved by good offices at the time of acceptance of bribe (negative)

[2] In a case where the nature and nature as consideration for an act other than a duty is indivisible as a case of an act other than a duty, whether the entire act has the nature of consideration for an act other than a duty (affirmative)

[1] Article 132 of the Criminal Act / [2] Articles 129 and 132 of the Criminal Act

[1] Supreme Court Decision 2009Do3924 Decided July 23, 2009 (Gong2009Ha, 1499) / [2] Supreme Court Decision 2009Do3039 Decided July 9, 2009, Supreme Court Decision 201Do12642 Decided January 12, 2012

Defendant

Defendant and Prosecutor

Law Firm Barun et al.

Seoul High Court Decision 2012No1871 decided December 14, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. We examine the Defendant’s grounds of appeal.

A. As to the first ground for appeal

The allegation in the grounds of appeal in this part is an error in the selection of evidence and fact-finding which belong to the full power of the fact-finding court, and therefore, it cannot be deemed a legitimate ground of appeal. In addition, in light of the records, the fact-finding by the court below is justified, and there is no violation of the law of logic and experience as otherwise alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

(1) “Acceptance of a bribe in connection with a referral of matters belonging to the duties of another public official” is an act of accepting a bribe under the pretext of arranging matters belonging to the duties of another public official, and does not necessarily have to specify the contents of other public officials or their duties. In addition, an act of arranging a bribe in this context is nothing but in the future, so there is no need to establish a pending issue that must be resolved by a referral to the other party at the time of receiving the bribe in order to establish the crime of bribery to a bribe (see Supreme Court Decision 2009Do3924, Jul. 23, 2009, etc.).

The lower court determined that it is reasonable to view that the Defendant was provided with the instant credit card from Nonindicted 1 in relation to the arrangement of matters belonging to other public officials’ duties, on the premise that the Defendant’s use of the instant credit card was related to the arrangement of matters pertaining to the duties of other public officials, if specific, within the entire period until the Defendant received the instant credit card from Nonindicted 1 and completed the use of the said card, in view of the relationship between the Defendant and Nonindicted 1, the background leading up to the delivery of the instant credit card, the details of the specific pending issues pertaining to the management of Nonindicted 1’s ○○○○ Group, and the amount of the received benefits, etc.

Examining the evidence duly adopted in light of the aforementioned legal principles, the above determination by the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the establishment of the crime of referral and acceptance of bribery, contrary to what is alleged in the grounds of appeal.

(2) In cases where the nature of the consideration for a public official’s act of duties and a case concerning an act other than duties are indivisible, the entire consideration has the nature of consideration for an act of duties (see Supreme Court Decision 2009Do3039, Jul. 9, 2009, etc.).

The court below's decision is just in light of the above legal principles as the consideration for the entire credit card use of the credit card of this case, and there is no error in the misapprehension of legal principles as to the calculation of the amount of the referral accepted

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in the instant case, since they differ from the matter.

C. Regarding ground of appeal No. 3

Based on the circumstances indicated in its reasoning, the lower court found the Defendant guilty of violating the Political Funds Act on the ground that the instant car provided by Nonindicted 2 was “for political activities” of the Defendant, while the Defendant involved in the Ansan Forum from January 10, 2007 to December 19, 2007, and was in charge of the message team leader at the Korean Election Countermeasures Committee, and that the instant car provided by Nonindicted 2 was “for political activities.”

In light of the records, we affirm the judgment of the court below as just, and there is no error of law such as finding facts in violation of logical and empirical rules or misunderstanding of legal principles as to the violation of the Political Funds Act, as otherwise alleged in the ground of appeal.

2. We examine the Prosecutor’s grounds of appeal.

A. As to the misapprehension of the legal principles on the duty relationship of the bribery

① The lower court found the charge on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes caused by bribery to the Ministry of Culture, Sports and Tourism, on the ground that the issue of determining the limit of export insurance against ○○○○○○ Shipbuilding, ② the issue of securing a site for the establishment of the ○○○○○ Shipbuilding Shipbuilding, ③ the extension of the ○○○○○○ Shipbuilding Shipbuilding, ④ the issue of restructuring of the shipbuilding industry and the merger and acquisition of shipbuilding, ⑤ various investigation or regulation by the government on Nonindicted 1 or ○○○○ Group, ⑤ the amendment or repeal of the government on the ○○○○○○ Group, ⑤ the issue of Nonindicted 1’s personal solicitation of the Korea Policy Broadcasting Board (K-TV) on the Korea Policy Institute (hereinafter “instant pending issues”) cannot be deemed to fall under the duties under the legal control of the Defendant, or the duties closely related thereto, and found the Defendant not guilty of the charge on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes caused by bribery to the public.

As stated in the judgment of the court below, the Ministry of Culture, Sports and Tourism under the Government Organization Act takes charge of the affairs concerning culture, arts, film, advertisement, publication, publication, publications, sports, tourism, and government announcements. The pending issues of this case are unrelated to the duties of the defendant, who is the Vice Minister of Culture, Sports and Tourism, and are related to the duties of the Ministry of Knowledge Economy, the Ministry of Land, Transport and Maritime Affairs, the Ministry of Land, Transport and Maritime Affairs, and the President of the Korea Policy Broadcasting Agency, etc., and the Minister of Culture, Sports and Tourism assisting the Minister of Culture, Sports and Tourism concerning the affairs of the State Council or the affairs of various committees participating in the affairs of the State Council participating in the State Council as members of the State Council under the Government Organization Act, and the matters deliberated at the Vice Council are not against the specific company as related to the legislative bills, etc. which are general and abstractly applicable to the entire shipbuilding industry, and there is no error of law by misunderstanding legal principles concerning the duties of bribery as alleged in the grounds of appeal.

B. As to the violation of the Political Funds Act

Based on the circumstances stated in its reasoning, the lower court found the Defendant not guilty of the charges of violating the Political Funds Act, on the ground that: (a) the Defendant was merely engaged in duties related to the transition of presidency while serving as the president as the representative of the non-permanent office planning team from December 20, 2007 to January 9, 2008, on the ground that there is no evidence to acknowledge that the Defendant was a person engaged in activities related to a political party or election for public office.

In light of the records, we affirm the judgment of the court below as just and there is no error in the misapprehension of legal principles as to the violation of the Political Funds Act, as otherwise alleged in the ground of appeal.

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 Ko Young-han (Presiding Justice)