[1] Standard for determining whether business relationship, bribe, and profit acquired by a public official in the crime of bribery constitute “Bribery” / Whether such a legal principle is equally applied to the officers of reconstruction and improvement project cooperatives deemed public officials under Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (affirmative)

[2] In a case where the defendant, who is an insurance solicitor of the life insurance company Gap and the president of the reconstruction and improvement project association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, was prosecuted for receiving a bribe in relation to his duties by receiving the insurance solicitation commission for the insurance contract after having Eul conclude an insurance contract for the insurance products of the company Eul, upon receiving a solicitation for assisting in the selection, etc. of the construction work, the case holding that the bribe that the defendant received from Eul is "the status or opportunity to receive the solicitation commission upon the conclusion of the insurance contract" and its property value is at least

[1] Article 129 of the Criminal Code, Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Article 129 (1) of the Criminal Code, Article 84 of the Act

[1] Supreme Court Decision 2001Do3579 Decided October 12, 2001 (Gong2001Ha, 2510), Supreme Court Decision 2009Do5657 Decided September 10, 2009, Supreme Court Decision 2010Do17797 Decided March 24, 201 (Gong201Sang, 897), Supreme Court Decision 201Do9585 Decided November 24, 2011 (Gong2012Sang, 92)

Defendant

Defendant

Law Firm Gangnam (LLC, Attorneys Lee Chang-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013No3831 decided June 13, 2014

The appeal is dismissed.

The grounds of appeal are examined.

Bribery does not require a special solicitation to recognize the bribe of money and valuables received since the process of performing the duties of a public official, the trust in society, and the impossibility of purchasing such duties are protected, and there is no need to do so. Moreover, money and valuables are sufficient to have been received in connection with the performance of duties and there is no need to have a quid pro quo relationship with each other (see Supreme Court Decision 2001Do3579, Oct. 12, 2001, etc.). Whether a certain profit received by a public official constitutes a bribe as an unfair profit in quid pro quo relationship with a public official shall be determined by taking into account all the circumstances such as the contents of the duties of the public official in question, the relationship between a person with a duty and a benefit provider, the situation and time of receiving such profit, etc. In light of the fact that the bribery is the process of performing duties, trust in society, and the nature of purchasing such duties, it is also applicable to the reconstruction project association’s establishment of a new urban area under Article 714 of the Act.

In full view of the adopted evidence, the lower court acknowledged the following facts: (a) the Defendant was an insurance solicitor of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and the head of the association of the reconstruction and improvement project association of the ○○ House; (b) upon Nonindicted Co. 2’s solicitation of Nonindicted Co. 1’s request for assistance in the selection of construction projects and the alteration of the project site for reconstruction and improvement projects in the future, the Defendant concluded an insurance contract for Nonindicted Co. 2 on May 11, 2009; and (c) around January 19, 201, concluded four insurance contracts, such as the No. 6 through 9 of the list of crimes in the first instance judgment, and received solicitation fees for each insurance contract from Nonindicted Co. 1 at that time; and (d) on the grounds stated in its reasoning, found the Defendant guilty of having received a bribe in connection with his duties as an executive of the reconstruction and improvement project association deemed a public official.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, it is just for the court below to have the defendant concluded an insurance contract with the non-indicted 2 in relation to the duties as the president of the reconstruction and improvement project association, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles regarding the consideration relation in the crime of bribery, or by exceeding

In this case, inasmuch as subscription fees for insurance contracts acquired by the Defendant are remuneration paid by Nonindicted Company 1 according to its business performance, such subscription fees themselves cannot be deemed a bribe, and the bribe received by the Defendant from Nonindicted Company 2 shall be deemed to be “the position or opportunity to receive subscription fees, etc. upon the conclusion of the insurance contract.” According to the evidence duly admitted by the lower court, it can be seen that the Defendant’s subscription fees for insurance contracts as stated in the facts charged are the amount calculated on the basis of the business performance and solicitation of new insurance contracts out of remuneration received from Nonindicted Company 1 upon the conclusion of the insurance contract by Nonindicted Company 2. Thus, the property value of “the position or opportunity to receive subscription fees, etc. upon the conclusion of the insurance contract” provided by the Defendant as the conclusion of the insurance contract by Nonindicted Company 2

In light of these circumstances, the decision of the court below that the defendant's act of acquiring pecuniary benefits equivalent to the solicitation fees for insurance contracts as stated in the facts charged constitutes the crime of bribery is justified and it is not erroneous in the misapprehension of legal principles as to the crime of bribery, and there is no error of law that affected the conclusion of the judgment.

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

Justices Jo Hee-de (Presiding Justice)