(영문) 광주지방법원 2021.4.29. 선고 2020구합14922 판결

A. On December 19, 1990, the Plaintiff was appointed as a public official of local civil service and served as a public official of ○○○○○○○○○ from December 7, 191 to December 7, 1991, and has served as a public official of ○○○○○○ and ○○○○○○○ in charge of construction of a safe city from July 17, 2017.

B. From December 10, 2017 to February 18, 2018, the Plaintiff and the ○○○○○○○○○, etc., engaged in golf (hereinafter referred to as “each of the instant golf courses”) with regard to green fee, cart rental fee, restaurant usage fee, and the cost of the increased house (hereinafter referred to as “basic cost”), the Plaintiff and the ○○○○○’s instant golf course were paid by the Plaintiff, etc., for a total of four occasions, as follows: (a) from December 10, 2017 to February 18, 2018, the Plaintiff and the ○○○○○○, etc., committed golf membership discount on the instant golf course at the time; and (b) the expenses incurred by the Plaintiff, etc., with the exception of partially borne by the Plaintiff, etc., as follows.

A person shall be appointed.

C. At the time of each golf of this case, 120,000 won was additionally incurred in addition to the basic cost of this case, which was calculated in the name of Kim○○ on each day.

D. On November 25, 2019, the Plaintiff received money, goods, etc. equivalent to KRW 1,500,000 (hereinafter referred to as “the instant money and valuables”) from Ma○○○○ on the ground that the Plaintiff violated the Improper Solicitation and Graft Act (hereinafter referred to as “Improper Solicitation and Graft Act”) on the grounds that the Plaintiff, while running the instant golf, violated the said Act, and received money and valuables, etc. equivalent to KRW 1,50,000 from Ma○○○ on December 24, 2017 (hereinafter referred to as “the Improper Solicitation and Graft Act”).

E. The Plaintiff filed an objection on November 28, 2019. However, on June 15, 2020, the same court rendered a decision on imposing an administrative fine of KRW 1,500,000 to the Plaintiff. The Plaintiff filed an immediate appeal on June 19, 2020, but the Gwangju District Court rendered a ruling on dismissal of the appeal (2020Ra5234) on August 10, 2020 (hereinafter referred to as “decision on each of the above decisions”).

F. On July 2020, the Defendant requested the Plaintiff’s disciplinary decision on the instant money and valuables as stated in the foregoing paragraph (54,200 won was corrected to 52,200 won; hereinafter “the instant money and valuables”). On August 13, 2020, the ○○○ Personnel Committee decided on the instant money and valuables payment on the ground that the Plaintiff violated the duty of integrity under Article 53 of the Local Public Officials Act, and on the ground that the Plaintiff violated the duty of integrity under Article 53 of the Local Public Officials Act, the Defendant made a disciplinary decision on the instant money and valuables payment, and the Defendant, according to the above decision on the 14th day of the same month, was subject to the disciplinary action of salary reduction for 1 month (hereinafter “instant disposition”).

G. The Plaintiff dissatisfied with the request and filed a petition review on September 9, 2020. However, on November 2, 2020, the petition review committee dismissed the above petition review request on November 2, 2020.

[Ground of recognition] Facts without dispute, Gap's entries in Gap's evidence 1 through 5, 7, 11 through 16, 18 through 22, and the purport of the whole pleadings

2. The plaintiff's assertion

A. Since the Plaintiff’s duties at ○○○○○○○○○○○ Company are not relevant to the Plaintiff’s duties, the Plaintiff’s receipt of money and valuables from the representative director at ○○○○○○○○○ Company, the Plaintiff’s receipt of money and valuables,

B. At the time of each golf in this case, the Plaintiff, Kim○○, and heading ○ separately shared KRW 120,000 for each golf, and each of the golf in this case bears a separate burden of KRW 141,70,000 for each of the following golfs (per 141,700, Oct. 14, 2017; KRW 384,500, Dec. 24, 2017; KRW 418,000, Jan. 21, 2018; KRW 430,000, Feb. 18, 2018; KRW 430,000, Feb. 18, 2018). This is not reflected in the amount of money and valuables received in the instant case, even though ○○ and the Plaintiff shared the entire costs.

C. Even if the duty relationship and the amount of money and valuables are recognized, the instant disposition deviates from and abused the discretion of the disciplinary decision.

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination

A. Whether the act of receiving money or goods in this case is related to duty

1) “Duties” in the crime of bribery includes not only duties prescribed by the law, but also duties related to such duties, customs or actual duties, acts of assisting or affecting decision-making authority, acts of assisting or influencing the decision-making authority, acts of performing duties other than duties in the past or to be in charge in the future, and duties under the general authority and duties of a public official, such as duties belonging to the general authority and duties, etc., according to such duties (see, e.g., Supreme Court Decision 2017Do12346, Dec. 22, 2017). In light of the legislative intent of the Act on the Prohibition of Solicitation and Solicitation, the system of the provision, etc., it is difficult to say that the concept of duty relationship in the Act on the Prohibition of Solicitation and Solicitation is completely identical to that of the crime of bribery, but the above legal principle is an important standard for interpreting

Therefore, it is reasonable to judge the relationship of duty in the Improper Solicitation and Solicitation Act in consideration of all circumstances such as the contents of duty, the relationship of the provider of money and valuables, whether there is a special relationship of relationship between the parties, the situation and time of receiving money and valuables, and whether there can be impeding fair performance of duty

Furthermore, the Act on the Prohibition of Solicitation and Solicitation has been enacted extensively to eliminate improper solicitation that obstructs the fair performance of duties of public officials, etc., and to ensure the fair performance of duties of public officials, etc. and the trust of the public agencies, even in the absence of relevance to duties or quid pro quo, to ensure the fair performance of duties of public officials, etc. in the absence of sanctions. In light of the legislative intent of the Prohibition of Solicitation and Solicitation Act and the contents of each prohibition provision, it is clear that if the Prohibition of Solicitation and Solicitation Act is narrowly recognized as narrow to as "a person directly in charge of duties against a provider of money or goods, etc.", the legislative intent of the Prohibition of Solicitation and Solicitation Act may be terminated or may be avoided. Therefore, it is reasonable to deem that the case of public officials, etc. in charge of duties that may affect a person directly in charge of duties by presenting information or opinions on the provider of money or goods, etc., or the case of public officials, etc. in such position also falls under a person related to duties with the provider of money or goods, etc.

2) In light of the above legal principles, it is reasonable to view that there exists business relationship between the Plaintiff’s business and the Plaintiff’s business and the Plaintiff’s business, in light of the following circumstances acknowledged by comprehensively taking account of the respective descriptions of Nos. 6 through 10, and Nos. 1 (including paper numbers) and the overall purport of oral argument as to the instant case. Accordingly, this part of the Plaintiff’s assertion is without merit.

① At the time of the instant case, the Plaintiff appears to have been engaged in the business related to the basic urban planning, urban management planning, etc. (Evidence 8), and the wooden ○○○○ corporation, a corporation with its head office at the time of brea-si, whose business purpose is not only the construction, management, and operation of the wooden Posting Port facilities, but also the construction, management, operation, etc. of the hinterland site behind the wooden Posing Port (Evidence 6). As such, the Plaintiff’s business and the Posing ○○○ corporation, at least, are directly

② In light of the close relationship between the Plaintiff’s business and the Mapo○○○○ Incorporated Company and the company entrusted with the management and operation of the Mapo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-Spo-

③ It is clear that the ○○○○○○○○○○○○○○○○○, a person in charge of the overall harbor policies, overall harbor logistics, etc., where the Plaintiff belongs, is related to the above tasks by performing the management and operation of the port facilities of the wooden Posting Port. In light of the Plaintiff’s duties and the relationship between the Plaintiff’s business and the Posting Posing ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’

④ The determination of the relevant administrative fine also determined that the duty relationship is recognized in full view of the Plaintiff’s status, scope of duties, career and details of duties, tenure of office, relationship with the employees of a department or relevant department, type of business operated by a wooden○○○○○○ Operation Company and its characteristics, circumstances leading up to golf with regular ○○○○, Kim○○ or heading○○○○, etc., frequency, time intervals, names used at the time, and all other circumstances. Such a determination and its basis correspond to the above circumstances.

⑤ Meanwhile, the Plaintiff asserts to the effect that the duties under Article 8 of the Improper Solicitation and Graft Act ought to fall under any of the duties listed in subparagraphs of Article 5(1) of the same Act, but it is difficult to accept such interpretation in light of the language, structure, and legislative intent of Articles 5 and 8 of the same Act.

B. Whether the calculation of the amount of money received in the instant case is reasonable

1) The part on the gld cost

In this case, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Plaintiff actually shared the expenses, regardless of its name, and there is no other evidence to deem otherwise.

Even if, as alleged by the Plaintiff, each of the above capital gains is deemed to have been jointly borne by Kim○○, ○○○, and the Plaintiff, and the corresponding part is excluded from the amount received by the Plaintiff, the portion of KRW 138,30,50, which was deemed to have been borne by the Plaintiff on its own as seen earlier, shall be deemed to have been jointly borne by the Plaintiff, and thus, the amount already calculated shall increase. As such, the amount received by the Plaintiff on its own as a result, would have no big difference in the amount received by the Plaintiff on its own, and the total amount would have increased, thereby affecting the appropriateness of calculating the amount received by the Plaintiff on its own. Accordingly, this part of the Plaintiff’s assertion is without merit.

2) Parts such as golf operations expenses, drinking value, proxy driving expenses, etc.

A) The Plaintiff asserts that the Plaintiff, Kim ○, and ○○○○○ separately bears the burden of proof of the Plaintiff’s burden of proving the amount of KRW 384,50 on December 14, 2017, 200, 384,500 on December 24, 2017, 200, 418, 418,000 on January 21, 2018, and 430,000 on February 18, 2018. In full view of the entries and arguments in No. 17 evidence No. 17, the Plaintiff bears the burden of proof. However, even if it is difficult to acknowledge that the amount of KRW 17,700 on January 21, 2018 was calculated at low school expense, 19:18, and that the remaining amount was calculated at KRW 17,000 x 17017,700 on January 27, 2017.

B) Even if it is deemed that the Plaintiff et al. fully bears each of the above amounts as alleged by the Plaintiff, etc., in such a case, since the Plaintiff et al. used each of the above amounts for 1/4 of the above amounts with the Plaintiff et al., the amount used for Ma○○○○ was jointly formed by the Plaintiff, Kim○, and the head of ○○○○ (in the case of December 10, 2017, the Plaintiff et al.). Furthermore, the part was borne by the Plaintiff on his/her own for 1/2 or 1/3 of the part, 17,712 won (i.e., 141,70 won X1/4 x 1/2, and less than KRW 1/2, and 32,041 won (i.e., 384,50 won x 1/408 x 1308 x 130 1/481) x 1308 x 14.31.31/14).

However, as seen earlier, the portion of the basic cost of this case (hereinafter referred to as 138,300 won, 55,500 won, which the Plaintiff solely assumed out of the basic cost of this case (hereinafter referred to as green fee, cart rental fee, restaurant use fee, and its increase) is bound to be jointly borne by the Plaintiff. As such, the amount solely borne by the Plaintiff out of the basic cost of this case is 69,150 won (=138,300 won X1/2), 37,000 won (i.e., 5,500 won x 2/3). Accordingly, the amount received by the Plaintiff would increase as a whole. Ultimately, even if the Plaintiff shared the said expenses, the amount received by the Plaintiff would be similar to the previous amount. Ultimately, even if it is alleged by the Plaintiff, it does not affect the appropriateness of the amount of money and valuables received by the Plaintiff.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

C. Whether the instant disposition deviates from or abused the discretion of a disciplinary decision

① As seen earlier, the duty relationship is recognized and the amount of money and valuables in this case is more likely to be seen. ② Article 2(1) [Attachment 2] of the former Local Public Officials Discipline Rule (amended by Ordinance of the Ministry of Public Administration and Security No. 69, Jul. 30, 2018) provides that “money and valuables, entertainment, etc.” refers to money and property benefits under Article 69-2(1)1 of the Local Public Officials Act, and Article 8-2 of the Enforcement Decree of the same Act provides that the above provision and its delegated authority clearly correspond to golf, etc. In this case, the above case falls under entertainment, etc.

5. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.