[1] The meaning of a "public official taking advantage of his status" in the crime of mediation and acceptance of bribery

[2] Specific degree of the facts charged

[3] In a case where a person who received money or other valuables as to a referral of matters belonging to a public official's duties uses money or other valuables for expenses according to an independent judgment, not for a bribe to a relevant public official or for delivery to another intermediary in accordance with the purport of receiving such money or other valuables (affirmative)

[1] The elements of the crime of bribery are that a public official accepts, demands, or promises a bribe in relation to the referral of matters belonging to the duties of another public official by taking advantage of his/her status. In this context, "public official taking advantage of his/her status" cannot be deemed as a case where he/she uses a private relationship such as friendship, kinship, etc., but it constitutes a case where a public official who is legally or substantially affected by the handling of affairs handled by another public official uses his/her status, and there is no need for special relationship such as relationship, cooperative relationship, supervisory authority, etc.

[2] In light of the nature of the offense charged, the specification of the facts charged is sufficient to specify the facts constituting the cause of the prosecution by stating the date, time, place, method, purpose, etc. to the extent that it can be distinguished from those of other facts charged. Even if some of them are unclear, if it is possible to specify the facts charged by other matters indicated therein, and thus, if it does not interfere with the exercise of the defendant’s right to defense, the validity of the

[3] Necessary confiscation or additional collection under Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes is aimed at depriving of the pertinent property acquired by the offender from the offender and preventing the offender from holding unlawful profits. This is also the same as Article 6 of the Act on the Aggravated Punishment, etc. of Specific Crimes. Thus, in cases where receiving money and other valuables from the public official about the referral of matters belonging to the public official's duties and providing them to the relevant public official in connection with solicitation or providing them as a bribe in accordance with the purport of receiving part of the money and other valuables, the benefits of the part shall not actually belong to the offender, and thus, the remaining money and valuables shall be confiscated or collected additionally. However, even if a person who received money and other valuables in relation to the referral of matters belonging to the public official's duties delivers part of the money and valuables as a solicitation to another intermediary, it is planned to use it as such at the time of receiving the money and valuables, but if used as expenses according to the independent judgment of the offender, it is merely a method of consuming the money and valuables received by the

[1] Article 132 of the Criminal Code / [2] Article 254 of the Criminal Procedure Act / [3] Articles 3 and 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 6 of the Act on

[1] Supreme Court Decision 90Do65 delivered on August 10, 1990 (Gong1990, 1980), 91Do190 delivered on July 23, 1991 (Gong1991, 278), 92Do532 delivered on May 8, 1992 (Gong1992, 1993, 93Do10596 delivered on July 13, 1993 (Gong1993, 2391, 2399) and 94Do9798 delivered on October 21, 1994 (Supreme Court Decision 94Do1969, 297, 2998)

Defendant

Defendant

Law Firm Han-han General Law Office, Attorneys Seo-soo et al.

High Military Court Decision 98No753 delivered on March 9, 1999

The appeal is dismissed. 90 days out of detention days after the appeal shall be included in the original sentence.

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

1. On the first ground for appeal

The elements for the establishment of a public official to accept, demand, or promise a bribe in connection with the referral of matters belonging to the duties of another public official by taking advantage of his/her status are that the public official's "use of his/her status" refers to the use of a private relationship, such as friendship, kinship, etc. However, a public official's use of his/her status is a case where the public official legally or practically has an influence on the handling of affairs handled by another public official is a case where he/she uses his/her status, and there is no need for a special relationship, such as a relationship, a cooperative relationship, and a supervisory authority (see Supreme Court Decision 93Do1056, Jul. 13

In light of the records, it is reasonable to recognize that the defendant was in a position to exercise de facto influence on his duties by requesting the relevant public officials of the Military Manpower Administration or training center to the military service, such as whether he was directly or indirectly exempted from his duties, whether he was assigned a military unit or a branch, and whether he was in a position to have been in a position to exercise de facto influence on his duties by requesting the relevant public officials in charge of the duties, such as whether he was directly or indirectly exempted from his duties, whether he was dispatched to the Military Manpower Administration from 1989 to the time of the crime of this case, and notify the Military Manpower Administration of the requirements for the military force force, the time of enlistment, and the statistics of draft resources, etc. to the Military Manpower Administration and the Army Headquarters, and transmitting the Military Manpower Administration's support, conscription, and draft resources to the Army Headquarters. Accordingly, the court below is justified in finding that the defendant accepted a bribe concerning the referral of matters falling under the duties of other public officials by taking advantage of his status, and there is no error in the misapprehension of legal principles as alleged in the grounds for appeal.

2. On the second ground for appeal

In light of the nature of the offense charged, the specification of the facts charged is sufficient to specify the facts constituting the cause of the prosecution by pointing out the date, time, place, method, purpose, etc. to the extent that it can be distinguished from other facts charged. Even if some of them are unclear, the facts charged may be specified along with other matters indicated. Thus, if the exercise of the defendant’s right to defense is not impeded, the validity of the prosecution does not affect (see, e.g., Supreme Court Decisions 89Do2020, Dec. 12, 1989; 86Do260, Jan. 20, 1987).

As to the facts charged of this case, insofar as the date and place of crime, the counterpart to the mediation, the client, and the amount of bribery are specified, it cannot be deemed that the public official subject to the mediation is indicated as a public official related to the Military Manpower Administration, and a person related to the second training establishment. Therefore, the allegation in the grounds of appeal purporting that the prosecution is unlawful is not acceptable.

3. On the third ground for appeal

The purpose of necessary confiscation or collection under Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes is to deprive an offender of the pertinent property acquired by the offender and prevent him from possessing unlawful profits. The same applies to Article 6 of the Act on the Special Cases concerning the Confiscation of Public Officials. Thus, in cases where a person receives money and valuables as a bribe in connection with a solicitation or delivers it to another intermediary in accordance with the purport of receiving part of such money and valuables, the benefits of the part shall not actually belong to the offender, and thus, the remaining money and valuables should be confiscated or collected additionally (see, e.g., Supreme Court Decisions 93Do3064, Feb. 25, 1994; 93Do1569, Dec. 28, 1993; 98Do1310, Jul. 27, 1982).

According to the records, although the cash or check received by the defendant from the client was partially returned to the drawee, it is merely a fact that the amount equivalent to the amount was consumed, but the amount was not disposed of as requested after a considerable period of time, and the amount was returned in the form of check or cash, etc., and the value was not excluded from additional collection, and part of the amount that the defendant delivered to the relevant public official was provided to the purport of the defendant's independent judgment to the effect that it would be well known as to the contents requested by the defendant and the audit of the fact that he received by the defendant as requested by the defendant. Thus, the decision of the court below that collected the total amount of the amount received by the defendant from the client, including this part of the money, is just in accordance with the legal principles as seen above, and there is no error of law in the misapprehension of legal principles as to additional collection or the deliberation

4. On the fourth ground for appeal

The assertion of misapprehension of the legal principles as to the determination of punishment is eventually unfair, and thus, in this case where a sentence of less than 10 years has been pronounced, the determination of punishment by the court below cannot be a legitimate ground for appeal.

5. Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-hee (Presiding Justice)