[1] Where a bribe is recognized even if money or valuables are given and received under the procedures stipulated in the Political Fund Act as political funds, and matters to be considered when determining the bribe of money or valuables provided

[2] Whether the part of expenses incurred by a public official in receiving a bribe, or the part used as expenses under a service contract concluded formally for receiving a bribe constitutes an item to be deducted from the value of a bribe and the amount of additional collection (negative)

[3] The meaning of Article 111 of the Attorney-at-Law Act that "to receive money, valuables, entertainment, or other benefits under the pretext of making a solicitation or good offices for cases or affairs handled by a public official" / In a case where money and valuables in the name of a solicitation concerning cases or affairs handled by a public official are received in an indivisible manner without distinguishing the amount of money and valuables in consideration for an act unrelated thereto, whether they are money and valuables in the name of solicitation (affirmative) / In a case where money and valuables were received several times and there is room to view differently whether there is a quid pro quo in the name of solicitation for cases or affairs handled by a public official for each act

[1] The act of contribution of political funds is a financial support for political activities, and the bribe is a separate concept as illegal consideration for a public official’s duty. Even though money and valuables were given and received under the pretext of political funds and followed the procedure prescribed by the Political Funds Act, it is recognized that the act is a bribe if a public official expectations an act favorable to a person who provided money and valuables or provides money and valuables as a case for a specific duty of a public official, rather than a support for a political person’s overall political activity, or has the substance of a quid pro quo for a public official’s duty as a result of providing money and valuables. In this case, when determining the bribe of offering money and valuables, the position and authority of the other party, the previous educational status and authority of the money and valuables provider and the other party, the time, amount, and frequency of money and valuables provided, the amount of money and valuables provided, the motive

[2] Where a public official has disbursed expenses necessary for receiving a bribe, such expenses are merely incidental expenses of the acceptance of bribe and do not constitute items to be deducted from the value of the bribe and the additionally collected amount. The portion received as expenses or the part used as expenses under a service contract formally concluded to receive a bribe is nothing more than the incidental expenses of the acceptance of bribe. The fact that a person who is not the subject to the acceptance of the bribe receives a bribe refers to the acquisition of money and valuables with the intention of acquisition of the acceptance of the bribe. As such, inasmuch as it is deemed that a person was aware that he was not aware of the receipt of the bribe, and immediately returned the bribe or temporarily stored the bribe with the intention to return it later, and there is no intention to obtain the bribe, such as returning it later by deeming the opportunity to return it later. However, if the Defendant requested a bribe first and received money from the receiver, the Defendant’s intent to obtain the entire amount of the bribe is recognized.

[3] Article 111 of the Attorney-at-Law Act provides, “The acceptance of money, valuables, entertainment, or other benefits under the pretext of soliciting or arranging the case or affairs handled by a public official” refers to a case or affairs handled by a public official under the pretext of mediating between the public official and his/her client. In cases where money and valuables are received under the pretext of soliciting the case or affairs handled by a public official simply by combining the nature of solicitation with regard to the case or affairs handled by a public official with inseparably in the nature of providing labor or convenience in connection with a case or affairs handled by a public official, it shall be deemed that the money and valuables have been received under the pretext of soliciting the case or affairs handled by a public official inseparably inseparably. The same shall apply to cases where money and valuables are received and received inseparably

However, if the number of money and valuables has been received over several times and there is room to see differently whether there is a quid pro quo in the name of a solicitation concerning cases or affairs handled by public officials by each act, it is necessary to determine whether each act is related to the name of the solicitation.

[1] Article 129 of the Criminal Act, Article 45 (1) of the Political Funds Act / [2] Articles 129 and 134 of the Criminal Act / [3] Articles 111 and 116 of the Attorney-at-Law Act

[1] Supreme Court Decision 2006Do8568 Decided June 12, 2008 (Gong2008Ha, 100) / [2] Supreme Court Decision 99Do1638 Decided October 8, 199 (Gong199Ha, 2366) Supreme Court Decision 2006Do9182 Decided March 29, 2007 (Gong2007Sang, 640), Supreme Court Decision 201Do9585 Decided November 24, 2011 (Gong2012Sang, 92) / [3] Supreme Court Decision 2005Do514 Decided April 29, 2005, Supreme Court Decision 2007Do712612 Decided December 22, 2005)

Defendant 1 and two others

Defendants and Prosecutor

Attorney Kim Jong-hwan et al.

Daegu High Court Decision 2016No347 decided December 8, 2016

All appeals are dismissed.

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

1. Judgment on Defendant 1’s grounds of appeal

A. The act of contribution of political funds is an act of financial support for political activities and a bribe is a separate concept as illegal consideration for a public official’s official’s duty. Even though money and valuables were given and received under the pretext of political funds and followed the procedure prescribed by the Political Funds Act, a bribe is recognized if a public official expectations an act favorable to a person who provided money and valuables or provides money and valuables as an example of a specific duty of a public official, rather than a political person’s specific duty. In this case, when determining the bribe of offering money and valuables, the position and authority of the other party, the timing of contribution, amount, and frequency of contribution, the amount of money and valuables provided, and the motive and circumstances of offering money and valuables should be comprehensively considered (see Supreme Court Decision 2006Do8568, Jun. 12, 2008, etc.).

The lower court found Defendant 1 guilty of the part concerning the acceptance of bribe against Nonindicted Co. 1 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) among the facts charged in the instant case against Defendant 1. The said Defendant’s money received from Defendant 3 and Defendant 2 has the nature of a bribe received in connection with the member’s duties

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, the lower court’s determination is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the establishment

B. Where a public official has disbursed expenses necessary for receiving a bribe, such expenses are merely incidental expenses of the bribery and do not constitute items to be deducted from the value of the bribe and the amount to be collected (see Supreme Court Decision 9Do1638, Oct. 8, 199). The portion that a person who is not the subject to the bribe received at the expense, or the part that was used as expenses under a service contract formally concluded to receive a bribe, is not only the incidental expenses of the bribery (see Supreme Court Decision 2011Do9585, Nov. 24, 201). The fact that a public official received a bribe refers to the receipt of money and valuables with the intention of acquisition. As such, it means that a public official immediately returns the bribe, or a person who has received a bribe unilaterally with the person who has received it, and thus, it is recognized that there was no intention to obtain the bribe by temporarily keeping it with the intention to return it later in consideration of the opportunity. However, if the Defendant had received the entire amount of the bribe from a person who received it.

Of the facts charged in the instant case against Defendant 1, the lower court determined that the acceptance of bribe against the full amount of KRW 70 million received by the said Defendant on the following grounds. (1) around August 2014, Defendant 1 requested support money to Defendant 3 via Defendant 2. (2) Co-defendant 3 of the first instance trial on October 17, 2014, who was the other party to the service contract, remitted money of KRW 77 million (including value-added tax of KRW 7 million) to Nonindicted Co-Defendant 3 and Defendant 2, who was notified, and on the same day, reported that Defendant 3 was remitted KRW 70 million to Defendant 1; (3) Defendant 1 ordered Defendant 3 to deliver money except for fees and expenses; and (5) KRW 50 million was not delivered to Defendant 1, who was actually supplied with the remainder of KRW 50 million; and (5) KRW 500,000,000,000 paid to Defendant 1 in cash.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, such determination by the lower court is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on calculating the amount

2. Judgment on Defendant 2’s grounds of appeal

Article 111 of the Attorney-at-Law Act provides that “Money and valuables, entertainment, or other benefits are received under the pretext of soliciting or arranging a case or affairs handled by a public official” means a case or affairs handled by a public official under the pretext of mediating between the public official and his/her client. In cases where money and valuables are received as a result of an indivisible combination of the nature of soliciting a case or affairs handled by a public official with respect to which he/she handles, and the characteristic of the cost of providing labor or convenience in connection with a case or affairs handled by a public official is indivisible, it shall be deemed that he/she received money and valuables under the pretext of soliciting a case or affairs handled by a public official with respect to which the whole amount of money and valuables is indivisible (see, e.g., Supreme Court Decisions 2005Do514, Apr. 29, 2005; 2005Do7771, Dec. 22, 2005). The same applies to cases where money and valuables are received inseparably without any distinction.

However, in a case where the number of money and valuables was received over several occasions and there is room to view differently whether there is a quid pro quo in the name of a solicitation concerning cases or affairs handled by public officials by each act, it is necessary to determine whether each act is related to the pretext of the solicitation (Supreme Court Decision 2011Do12642 Decided January 12, 2012, which ruled to the same effect as in the crime of bribery, and the same applies to the crime of violation of the Attorney-at-Law Act).

The lower court recognized the fact that Defendant 2 received KRW 96,70,020 on five occasions without distinguishing the amount from the money and valuables on the pretext of solicitation by public officials from Nonindicted Co. 1 on the affairs handled by Nonindicted Co. 1 and on the basis that Defendant 2 received KRW 96,70,020 on five occasions in return for the money and for the money for M&A related services with Nonindicted Co. 3, and determined that the money received by Defendant 2 constituted a crime of violation of the Attorney-at-Law Act on the whole amount received by combining the

Examining the legal principles as seen earlier and the evidence duly admitted by the first instance court, it is difficult to view that the existence of the price in the name of the public official in relation to the funds received by Defendant 2 may vary depending on the act, or that the price in the name of the solicitation and the price in the M&A-related services with Nonindicted Co. 3 may be distinguished. Therefore, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by misapprehending the legal doctrine on additional collection, contrary to what is alleged in the grounds of appeal.

3. Judgment on Defendant 3’s grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, it is justifiable for the lower court to have convicted Defendant 3 of all the instant charges. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, without exhaust all necessary deliberations, or by misapprehending the legal doctrine on the establishment of a crime of acceptance of bribe and an aiding and abetting, contrary to what is alleged in the grounds of appeal, and contrary to what is alleged in the grounds of appeal, the lower court that maintained Defendant 3’s first instance court’s concurrent penalty against Defendant 3,

4. Judgment on the grounds of appeal by the prosecutor

The burden of proving the facts charged in a criminal trial has the burden of proof on the prosecutor. In order to find a guilty, there must be evidence of probative value sufficient to prove that the facts charged are true beyond a reasonable doubt by the judge. Therefore, if there is no such evidence, even if there is a doubt as to the defendant's guilt, it is inevitable to determine the defendant not guilty with the benefit of the defendant (see Supreme Court Decision 2005Do4737, Feb. 24, 2006, etc.

The lower court reversed the judgment of the first instance that convicted Defendant 2 on the ground that there was no proof of a crime regarding the third-party brain acquisition of gift certificates of KRW 1 million on December 2013 among the facts charged in the instant case, and sentenced Defendant 2 not guilty. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s determination is justifiable, and there was no error by exceeding the bounds of the principle of free evaluation of evidence

5. Conclusion

All appeals by the Defendants and the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)