[1] The elements for the court to recognize facts charged as different from those stated in the indictment ex officio without changing the indictment

[2] Whether the charge of bribery under the Criminal Act is naturally included in the charge of violating Article 2 (1) 1 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (affirmative), and the method of handling the case where a public prosecution was instituted for a violation of Article 2 (1) 1 of the former Act on the Aggravated Punishment, etc. of Specific Crimes, but the value of the bribe is not less than the amount stipulated in the same Article

[3] The meaning of "interest", which is the substance of a bribe, and where a public official has been given an opportunity to participate in an speculative business with a bribe, the timing of acceptance of the crime of acceptance of bribe (=the time of termination of the act

[1] Articles 254(3) and 298 of the Criminal Procedure Act / [2] Articles 129, 130, and 132 of the Criminal Act; Article 2(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010) / [3] Article 129(1) of the Criminal Act

[1] Supreme Court Decision 96Do755 delivered on May 10, 1996 (Gong1996Ha, 1952), Supreme Court Decision 97Do1889 delivered on November 14, 1997, Supreme Court Decision 2003Do1366 delivered on May 13, 2003 (Gong2003Sang, 141) / [2] Supreme Court Decision 94Do2349 delivered on November 11, 1994 (Gong194Ha, 3326), Supreme Court Decision 205Do257 Delivered on July 28, 2005 / [3] Supreme Court Decision 94Do129 delivered on November 14, 1994 (Gong194; Supreme Court Decision 300Do1329 delivered on March 23, 205)

Defendant 1 and one other

Prosecutor

Attorney Doh-won et al.

Daejeon High Court Decision 2009No195 decided August 19, 2009

All appeals are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The judgment of the court of first instance maintained by the court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and found Defendant 2, who worked as the chief of the power distribution operation department of the Chungcheong branch of the Korea Electric Power Corporation, to establish and operate an engineering company as one of the joint venture companies (hereinafter “one engineering”) with Defendant 1 who operated the two electrical construction companies, and actually invested KRW 110 million and KRW 50 million with the expenses for establishment of a company. One of the shareholders’ list or corporate register, Defendant 2’s leakage and type are listed as shareholders and directors; the Defendants adjusted the distribution ratio following the change of their investment amount; Defendant 2’s money received as dividends was about KRW 10% of the amount ordered by the engineering company as one of the joint operation periods of the joint operation of the Korea Electric Power Corporation; Defendant 2 did not appear to have been acquitted of the above dividends amounting to KRW 200,700,000,000 in total on the premise that each of the above bribe was not a bribe of KRW 200,70,00,000.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 2

A. In a case where a minor criminal facts are acknowledged beyond that included in the criminal facts charged within the scope recognized as identical to the facts charged, if it is deemed that there is no risk of causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, the court may ex officio determine the facts charged other than those stated in the indictment even if the indictment has not been modified (see Supreme Court Decisions 94Do129, Nov. 4, 1994; 97Do1889, Nov. 14, 1997, etc.).

In addition, Article 2 (1) of the Aggravated Punishment Act provides that if the value of a bribe which a person who commits a crime as provided in Article 129, 130, or 132 of the Criminal Act receives, demands, or promises to receive is above the amount provided in each subparagraph of the same Article, the person subject to aggravated punishment is subject to the crime of acceptance of bribe, and there is a difference in the value of the bribe as a result of the crime of acceptance of bribe. The elements of the crime of acceptance of bribe are identical to the elements of the crime of violation of Article 2 (1) 1 of the Aggravated Punishment Act, among the facts charged for the violation of Article 2 (1) 1 of the Aggravated Punishment Act, the facts charged for the crime of bribery under the Criminal Act are naturally included in the elements of the crime (see Supreme Court Decision 2005Do2557, Jul. 28, 2005), even if the value of the bribe is recognized as above the amount provided in Article 2 (1) 1 of the Aggravated Punishment Act.

Meanwhile, in the crime of bribery, profits that are the contents of a bribe include not only money, goods, and other property interests, but also all types of and intangible profits sufficient to satisfy human needs. It constitutes a case where a public official has been given an opportunity to participate in an speculative project. In a case where a public official has been given an opportunity to participate in an speculative project as a bribe, the time when the act of participating in an speculative project is completed (see Supreme Court Decision 2002Do3539, Nov. 26, 2002, etc.).

B. According to the reasoning of the lower judgment, the lower court determined that the crime of acceptance of bribe was already completed on July 2, 2002, on the premise that the charge of the violation of the Act on Special Cases concerning the Aggravated Punishment (Bribery) against Defendant 2 included the facts charged of acceptance of bribe under the premise that “Defendant 2 received an intangible benefit by Defendant 1 as an opportunity to participate in the engineering electrical construction project as one expected to receive high profit,” and that the crime of acceptance of bribe was already completed on or after July 2, 2002, which was jointly established by the Defendants, the lower court acquitted the above facts charged on the ground that the prosecution of this case was instituted five years after the statute of limitations for the crime of acceptance of bribe was filed.

In light of the above legal principles and records, the above determination by the court below is just and there is no error of violating the principle of non-defluence as alleged in the grounds of appeal.

3. As to the acquittal of violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal specify the grounds of final appeal and explain specific and explicit reasons as to which point of the judgment below is in violation of the statutes, and, in cases where the appellate brief submitted by the appellant does not simply state such specific and explicit reasons, the court below did not simply state the grounds of final appeal that there were errors in misunderstanding of facts or misunderstanding of legal principles, and did not state any specific reasons as to which evidence is in violation of the rules of evidence rules, and any error in the application of Acts and subordinate statutes, and any unjust reason. Thus, it cannot be deemed that legitimate grounds of final appeal have been submitted (see Supreme Court Decision 9Do513, Apr. 21, 200

According to the records, the prosecutor filed an appeal and submitted a petition of appeal stating only "not guilty portion" in the column of the scope of the appeal, and "misunderstanding of facts in violation of the rules of evidence collection" in the column of the grounds of appeal, and each written ground of appeal did not state the grounds of appeal as to the acquittal portion. In light of the above legal principles, it cannot be deemed that the legitimate grounds of appeal as to the acquittal portion was submitted.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)