[1] Specific degree of "recovering matters" as elements for establishing the crime of demanding a bribe under Article 132 of the Criminal Code, and whether there is any pending issue to be resolved by good offices at the time of demanding a bribe (negative)

[2] In a case where a public official of the Gu office demanded that the owner of an entertainment drinking house provide assistance by requesting another public official in charge when a problem related to taxes, business permission, etc. related to entertainment drinking club business arises, the case reversing the judgment of the court below on the ground that the establishment of the crime of demanding good offices was erroneous for misapprehending the legal principles

[1] The phrase "requesting a bribe in connection with the referral of matters belonging to the duties of another public official" under Article 132 of the Criminal Code refers to demanding a bribe under the pretext of arranging matters belonging to the duties of another public official, and it does not necessarily require that the contents of the other public official who is the other public official or his duties are specified. However, in order to establish the crime of demanding a bribe, matters to be mediated are belonging to the duties of another public official, and the name of the request for a bribe is related to the referral of such matters. It is merely limited to the extent that the other public official has a vague expectation to the extent that he does not have any help or possibility of causing damage if he appears well to the person demanding a bribe, and the mere fact that the person demanding a bribe has requested a bribe is required to do so, it cannot be deemed that the crime of demanding a bribe constitutes the crime of arranging a bribe. On the other hand, since the act of arranging in this context is about to be done in the future, at the time of demanding a bribe to be established, there is no need to resolve the pending issue.

[2] In a case where a public official of the Gu office demanded that the proprietor of an entertainment drinking house provide assistance to other public officials in charge by requesting for tax or business permission, etc. related to entertainment drinking house business, the case reversing the judgment below holding that the crime of bribery demand was not established on the ground that there is no evidence to prove that the reason for the bribe request was premised on the other party’s vague expectation, and that there was a pending issue to be resolved through good offices and specifically specify the matters to be arranged at the time, or through good offices, there was no pending issue to be resolved, and that there was a misapprehension of the legal principle as to the crime of bribery demand

[1] Article 132 of the Criminal Act / [2] Article 132 of the Criminal Act

Defendant

Prosecutor

Law Firm Jeong-sung, Attorney Hong Sung-goo

Seoul High Court Decision 2009No303 decided April 17, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On July 9, 2007, the court below found the charge of this case that "the defendant, who was a public official belonging to the Seoul ○○○-gu Office, requested a bribe to arrange matters belonging to other public officials' duties by requesting the other public officials in charge to the effect that "if there is any problem in tax or business permission, etc. concerning entertainment tavern business run by the President," the defendant, who was in charge of imposing taxes on real estate owned by the public officials of the Seoul ○○-gu Office, is presumed to be premised on "a remote expectation expectation of the other party to the extent that it may assist in tax issues or business permission issues, etc. which may occur in the middle-gu Seoul Metropolitan Government," and that the defendant's request for a bribe to the non-indicted 10 million won on the charge of this case's charge of this case's charges on the premise that "the defendant's request for a bribe to the extent that it is possible to help him in connection with tax issues or business permission issues that may arise in the above way," and that there is no other evidence to find the defendant's illegality.

2. However, we cannot agree with the judgment of the court below for the following reasons.

The phrase "requesting a bribe in connection with the referral of matters belonging to the duties of other public officials" under Article 132 of the Criminal Act means demanding a bribe under the pretext of arranging matters belonging to the duties of other public officials, and the contents of the duties of other public officials or their duties must not be specified specifically. However, in order to establish the crime of demanding a bribe, matters to be mediated belong to the duties of other public officials, which are matters related to the referral of such matters, must be specified to a certain extent, and only if the other party appears well to the person demanding a bribe, it is limited to the extent that the other party has no help or there is no possibility of causing any damage, and the mere fact that the person demanding a bribe has requested a bribe cannot be deemed to constitute the crime of demanding a bribe, since the act of arranging in this context is done in the future, it is not necessary to settle the pending issue with the other party at the time the crime of demanding a bribe is established.

However, according to the facts charged in this case, the defendant stated to the effect that "the defendant requested other public officials in charge to assist in tax issues, business permission, etc. related to entertainment tavern business," and it is sufficient to see that the contents of the defendant's brokerage are matters belonging to the duties of other public officials, and that the defendant's brokerage is related to the brokerage of such matters. It is sufficient to see that the defendant's request for a bribe was made specifically. It cannot be deemed that the non-indicted has a vague expectation that the non-indicted will assist the business of entertainment tavern if he seems well by the defendant. Thus, in light of the above legal principles, the above defendant's act constitutes the crime of demanding good offices, and whether there was a pending issue that must be resolved by the defendant's brokerage or mediation, it does not affect the establishment of the crime of demanding good offices.

Nevertheless, the court below held that even based on the facts charged in this case itself, the defendant's demand for 10 million won is based on the premise of "the other party's vague expectation to the extent that it may assist in tax issues, business permission issues, etc. that may arise in the future," and there is no evidence to prove that there was a pending issue that the matters to arrange at the time are specified to a certain extent or that there was a pending issue that shall be resolved by the defendant's mediation. This judgment of the court below is erroneous in the misapprehension of legal principles as to the crime of request for good offices, and it has affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)