[1] The standard for determining whether the amount received by a public official constitutes a bribe as an unfair profit with a quid pro quo relationship

[2] The meaning of "the receipt of money and valuables in relation to the intermediation of matters belonging to the duties of officers and employees of the financial institution" under Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and whether it constitutes the elements of the above law to introduce simply the intermediary (negative)

[1] Whether the amount received by a public official constitutes a bribe as an unfair benefit with a quid pro quo relationship shall be determined by considering all the circumstances such as the contents of the public official’s duties, the relationship between a job provider and a benefit provider, whether there exists a special relationship of relationship between both parties, the difference of interest, the circumstances and timing of receiving benefits, etc. In light of the fact that the crime of bribery is the legal interest protected by the law of fair performance of duties and the trust in society, whether the receipt of money by a public official is suspected of the fairness of execution of duties from the general public is also a single standard

[2] Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes ("Aggravated Punishment, etc. of Specific Economic Crimes") refers to the case where the executive or employee of a financial institution, who is the other party to the mediation, receives money and valuables under the pretext of mediation and solicitation of matters belonging to the duties of the executive or employee of the financial institution, and it is not necessarily necessary to specify the matters belonging to the duties of the executive or employee of the financial institution. However, at least the case where the money and valuables are received under the pretext of mediation between the executive or employee of the financial institution, which can be the other party to the mediation, in order to establish the crime of acceptance of brokerage under the above Act, the act of receiving money and valuables or other benefits under the pretext of mediation between the person who has requested mediation and the officer or employee of the financial institution (the other party to mediation) who can be the other party to the mediation, and in case where the person who has arranged the act of mediation is introduced without the intention of mediation between the client and the other party to the mediation, it can not be evaluated as an actual act of mediation.

[1] Article 129 of the Criminal Code / [2] Article 7 of the Act on the Aggravated Punishment, etc.

[1] Supreme Court en banc Decision 94Do3022 delivered on January 23, 1996 (Gong1996Sang, 703), Supreme Court Decision 96Do377 delivered on April 17, 1997 (Gong1997Sang, 1354), Supreme Court Decision 96Do378 delivered on April 17, 1997 (Gong197Sang, 197Sang, 197Sang, 197Do2609 delivered on December 26, 197 (Gong1998Sang, 1368), 97Do378 delivered on April 17, 1997 (Gong197Sang, 1368), and 97Do2609 delivered on December 26, 197 (Gong1998Sang, 475), Supreme Court en banc Decision 90Do31970 delivered on March 10, 199, 2097)

Defendant

Defendant

Attorneys Lee Ho-con et al.

Seoul High Court Decision 98No2311 delivered on June 23, 1999

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

We examine the grounds of appeal.

1. As to the part on acceptance of bribe

In light of the above legal principles and records, whether the amount received by a public official constitutes a bribe as an unfair benefit with a quid pro quo relationship shall be determined in consideration of all the circumstances such as the duty contents of the public official in question, the relationship between a provider of duties and a benefit, whether there exists a special relationship between both parties, the degree of interest, and the circumstances and timing of receiving benefits. In light of the fact that the crime of bribery is a fair performance of duty and the trust of the society, the issue of whether the crime of bribery is suspected of being fair in the performance of duty by a public official is one of the criteria for determination (see Supreme Court Decision 97Do3113, Mar. 10, 198). In light of the above legal principles and records, the court below's decision that the defendant constitutes a bribe from a provider of money and valuables in this case is justifiable, and there is no error of law by misapprehending the legal principles on mistake of facts or the acceptance of bribe due to the violation

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes provides or receives money or goods to arrange matters belonging to the duties of officers and employees of a financial institution under the pretext of mediation and solicitation of matters belonging to the duties of the officers and employees of the financial institution, and it does not necessarily require specific specification of the executives and employees of the financial institution who are the other party to mediation. However, at least it means the case where money or goods are provided or received under the pretext of mediation between the executives and employees of the financial institution which is the other party to mediation with regard to matters belonging to the duties of the officers and employees of the financial institution. Thus, in order to establish the crime of acceptance of mediation under the above Act, the act of receiving money or other benefits under the pretext of mediation between the person who requested mediation and the officer and employee of the financial institution which is the other party to mediation (the other party to mediation) shall be provided or received under the pretext of mediation between the clients and the other party to mediation, and in case where introducing the person who actually act of mediation without the mediation and mediation, the act of mediation shall not be deemed to constitute the crime of 974.

The summary of this part of the criminal facts acknowledged by the court below (the original court cited the criminal facts in the judgment of the court of first instance, but conducted a somewhat different fact-finding in the judgment of the defendant's grounds for appeal) is that the defendant requested the bank loan from the non-indicted 1, the president of the department store located in Ulsan Metropolitan City, to the non-indicted 2, the Minister of Finance and Economy and Economy at the time of his pro-Japanese and requested the non-indicted 2 to give instructions to the non-indicted 3, the Vice Minister of Finance and Economy at the time of his pro-Japanese, and the non-indicted 2 called the non-indicted 3, the head of the financial policy office of the Ministry of Finance and Economy at the time of his pro-Japanese. The non-indicted 1 asked the non-indicted 3 to give and receive the bank loan from the non-indicted 1, and the defendant asked the non-indicted 3 to give and receive the loan from the non-indicted 1 in return for his request.

If facts are different, it is clear that Nonindicted 1, who is the broker, does not request the defendant to mediate the matters belonging to the duties of the officer or employee of the financial institution, and it is not clear that the defendant himself/herself did not act as a broker between the client and the broker, and the defendant's above act is merely demanding Nonindicted 3, who is the broker, from the same point of view as the broker, in order to promote the convenience of the client, and therefore it is difficult to view that the defendant was involved in the mediation with the intention of joint processing. Thus, it cannot be said that the defendant satisfied the elements of the crime that the defendant received money, valuables, or other benefits in relation to the mediation of matters belonging to the duties of the officer

Nevertheless, the court below found the defendant guilty on the basis of the above criminal facts, which has affected the conclusion of the judgment by misunderstanding the legal principles of the crime of taking the above good offices. The ground of appeal pointing this out has merit.

Therefore, the judgment of the court below cannot be maintained in relation to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against the defendant, without examining the remaining grounds of appeal. The above crime is concurrent crimes between the remaining guilty part against the defendant and the defendant under the former part of Article 37 of the Criminal Act. On the other hand, the part which was found guilty in the court below among the facts of acceptance of bribe against the defendant, and the part which was found not guilty in the judgment of the court below, should be reversed in its entirety.

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

Justices Park Jae-sik (Presiding Justice)