Requirements for the application of Article 4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and whether the executive officers of government-managed enterprises may be punished by deeming them as public officials in the case of bribery under the Criminal Act, not the case of aggravated punishment

In applying Articles 129 through 132 of the Criminal Act, Article 4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that the scope of the application of the crime of bribery shall be extended to the executive officers of the government-managed enterprise who are not the original public officials. When the executive officers of the government-managed enterprise have committed a crime provided for in Articles 129 through 132 of the Criminal Act in connection with their duties, the crime is established on the ground that it is obvious that the Act on the Aggravated Punishment, etc. of Specific Crimes is applied to each of the above Articles, and it is not a case of aggravated punishment, but a mere provision that the executive officers of the government-managed enterprise shall not be punished on the ground that it is a public official in the case

Articles 2, 4(1) and 129 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Supreme Court Decision 71Do1786 Decided November 23, 1971 (No. 19(3) and Supreme Court Decision 84Do1139 Decided August 14, 1984 (Gong1984, 1568)

Defendant 1 and one other

Defendant 1 and Prosecutor (Defendant 2)

Attorneys Song Jin-jin et al.

Seoul High Court Decision 89No2216 delivered on February 28, 1990

All appeals are dismissed.

We examine the prosecutor's grounds of appeal.

In light of the records, the court below's decision that acquitted the defendant on the ground that there is no evidence to recognize that the defendant conspireds or participated in the process of arbitrarily consuming the funds created by depositing the funds in the secret section opened in the name of co-defendant 1, such as the court below's original judgment as the time of the original judgment, and there is no error of law such as incomplete deliberation or misunderstanding of legal principles.

Defendant 1’s grounds of appeal are examined as follows.

(1) According to the evidence of the first instance judgment affirmed by the lower court, the facts constituting the instant crime are recognized, and there is no illegality of mistake of facts, such as the theory of lawsuit, and the assertion of unreasonable sentencing does not constitute a legitimate ground for appeal in this case.

(2) In the application of Articles 129 through 132 of the Criminal Act, Article 4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes stipulates that the executive officers of government-managed enterprises shall be regarded as public officials. In the application of Articles 129 through 132 of the Criminal Act to maintain sound social order, the application of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be deemed as public officials, and the application of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be expanded to the executive officers of government-managed enterprises who are not public officials, and the application of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be deemed as if the executive officers of government-managed enterprises have committed the crimes under Articles 129 through 132 of the Criminal Act in connection with their duties (see Supreme Court Decision 71Do1786, Nov. 23, 197; 84Do1139, Aug. 14, 1984).

Only in the case of an aggravated punishment under Article 2 of the above Act, the executive members of the government-managed enterprise shall be treated as public officials, and it cannot be said that in the case of a simple case of Articles 129 through 132 of the Criminal Act not in the case of an aggravated punishment, it cannot be said that there is a provision that it cannot be punished as public officials.

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

Justices Park Yong-dong (Presiding Justice)