[1] Whether the place where money and valuables are received is open to the public and whether a public official who received money and valuables consumes such money and valuables for its subordinate employees is a bribe (affirmative)

[2] Probative value of the suspect interrogation protocol prepared by the prosecutor

[3] Duties in relation to the crime of bribery

[4] Whether the received money is a bribe in a case where it is based on the form of a private case (affirmative)

[1] The place where money and valuables are received in the crime of bribery is open to the public, and even if a public official who received money and valuables consumes it for his subordinate employees and did not take his own interest, the nature of the bribe shall not be denied.

[2] The protocol of examination of suspect prepared by the public prosecutor is admissible unless there is any reason to suspect in particular that the defendant's statement recorded in the protocol is not arbitrarily made if it is acknowledged that the defendant's statement in the protocol is authentic by the statement in court

[3] In the crime of bribery, not only the public official's legal control but also the act that is actually handled in relation to his duties and the act that may assist or affect the decision-making authority.

[4] If a public official received money in connection with a public official's official duty, the amount received shall be a bribe, and even if it is used in the form of a private case, it shall be a bribe if it has the meaning of money for a public official's official act.

[1] Article 129 of the Criminal Code / [2] Article 312 of the Criminal Code / [3] Article 129 of the Criminal Code / [4] Article 129 of the Criminal Code

[1] [3] Supreme Court Decision 83Do2050 delivered on May 14, 1985 (Gong1985, 863) / [1] Supreme Court Decision 66Do718 delivered on July 19, 196, Supreme Court Decision 82Do1656 delivered on September 28, 1982 (Gong1982, 110) / [2] Supreme Court Decision 93Do1435 delivered on July 27, 1993 (Gong193Ha, 2479), Supreme Court Decision 93Do318 delivered on February 8, 197 (Gong194, 194, 104, 10439) 94Do2979 delivered on November 4, 1994 (Gong1984, 194, 1043) / [209Do39794 delivered on November 29, 1994)

Defendant 1 and one other

Defendants and Prosecutor

Attorney Park Yong-il

Busan District Court Decision 95No893 delivered on February 27, 1996

Each appeal shall be dismissed.

1. Prosecutor's grounds of appeal are examined.

In light of the records, among the facts charged against Defendant 1 in this case, the court below is justified in finding that the defendant received a bribe of KRW 1,000,000 from the Gangwon-gu, and there is no proof, and there is no error in the misapprehension of the rules of evidence as alleged in the grounds of appeal.

2. Defendant 1’s grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

A. In light of the records, the court below maintained the first instance judgment which found the defendant guilty of each of the bribery charges against the above defendant, as it is, in light of the evidence set forth in the judgment of the court below in light of the records, it is reasonable that the court below maintained the first instance judgment which found the defendant guilty of each of the bribery charges, and there is no error of law by misunderstanding facts against the rules of evidence or misunderstanding of legal principles as to

B. In the crime of bribery, the place where money and other valuables are received is open to the public, and even if a public official who received money and other valuables consumes it for his subordinate employees and did not take his own interest, the bribe is not denied (see Supreme Court Decision 83Do2050, May 14, 1985). Thus, in the event that the court below delivered money to the defendant to the same purport to the effect that the case concerning the first-Ra and E criminal facts delivered by the non-indicted 1, as stated in the judgment of the court below, and to the effect that they can continue to be delivered in the future, it is merely a case falling under a mere private case, and it cannot be deemed that there is no intention of unlawful acquisition. In light of the records, the court below affirmed the first instance judgment convicting this part of the criminal facts on the grounds that the bribe received in relation to his duties was consumed at the cost of a meeting, not for an individual purpose, and thus, it does not lose its illegality, and there is no error in the misapprehension of legal principles as to the crime of bribery.

3. Defendant 2’s grounds of appeal are examined.

A. The above defendant's interrogation protocol prepared by the prosecutor for himself is not voluntary, and the protocol adopted by the court below violated the rules of evidence. However, the interrogation protocol prepared by the prosecutor for the defendant is admissible unless there is any reason to suspect specifically that the defendant's statement in the protocol is not voluntary (see Supreme Court Decision 93Do1435 delivered on July 27, 1993). According to the records, the above defendant acknowledged the authenticity of the interrogation protocol prepared by the prosecutor for himself in the court of first instance, and considering all the circumstances shown in the related evidence and records, it cannot be deemed that the above defendant's statement recorded in the interrogation protocol prepared by the prosecutor for the defendant cannot be deemed voluntary. Thus, the argument in the grounds of appeal disputing this point is not acceptable.

B. In light of the records, the court below's measure of maintaining the judgment of the court of first instance which found the defendant guilty of the crime of bribery as stated in subparagraph 1 (a), (2), and (b) of Article 2-A of the judgment of the court below against the above defendant is considered correct, and there is no error of law of misunderstanding of facts or misunderstanding of legal principles as to bribery due to violation of the rules of evidence as alleged in the grounds of appeal.

In addition, duties in the crime of bribery include not only public official's duties under the law, but also duties that may assist or affect the decision-making authority (see Supreme Court Decision 83Do2050, May 14, 1985; Supreme Court Decision 94Do619, September 9, 1994, etc.). According to the records, the above defendant is not only a manager of the Busan Urban Parking Authority's business but also a director of the Busan Urban Parking Authority's recommendation and deliberation on the management and the collection of parking fees for public parking lots established in six districts, such as the Busan Urban Parking Authority, and is also a personnel member of the above Corporation's business, but also a position that may affect the above person's personnel affairs. Nonindicted 2 was lower than the above defendant as the guidance leader of the management division of the above Corporation, and was delivered to the defendant with the above defendant for a disadvantage in personnel affairs because it was not good, and there is no error in the misapprehension of legal principles as to the defendant's duties, and thus, the court below's judgment is justified.

C. If a person receives money in connection with a public official's official duty, the amount received shall be a bribe, and even if it is used in the form of a private case, it shall be a bribe if it has the meaning of the consideration for his official duty, and the facts constituting the crime of Article 2-A (3) of the judgment of the court below in the same purport is affirmed the judgment of the court of first instance which found the defendant guilty of the above part of the facts charged on the ground that even though the money received by the above defendant is less than KRW 200,00,000, it is received under the pretext of the referral in relation to the duties of the public official who is employed as a parking manager, it shall not be deemed as a mere case belonging to a private case or a good custom that should be protected, and in light of the records, it shall be deemed that such recognition and judgment of the court of first instance are correct (see Supreme Court Decision 83Do1499, Apr. 10, 1984).

4. Therefore, each appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)