[1] The standard for determining whether the duty relationship and the profit gained by a public official in the crime of bribery constitute a bribe

[2] In a case where a police officer received money from a representative of an architect office who wishes to be selected as a reconstruction design firm on the part of a petitioner while investigating a petition case against a reconstruction association representative, the case holding that the police officer cannot reject the relation between the receipt of money and the investigation of a petition case, which is a duty of a police officer,

[1] The legal interest to be protected in the crime of bribery is the process of performing official duties, the trust in society, and the non-purchase of the act of performing official duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of money and valuables received, it is not sufficient that money and valuables were received in relation to the performance of official duties, and there is no need to specify the act of performance of official duties. In addition, the issue of which profit obtained by a public official is an unfair profit in relation of a quid pro quo, shall be determined by considering all the circumstances such as the contents of the public official's official's duties, relationship with a provider of benefits, whether there is a special relationship between the two parties, whether there is a special relationship between the public official and the provider of benefits, and the situation and time of receiving benefits. In light of the legal interest to be protected in the crime of bribery is the process of performing official duties, trust in society, and the lack of purchase of official duties, it shall be the basis for determining whether a public official receives such benefit and thereby becomes doubtful from the ordinary performance of official's.

[2] In a case where a police officer received money from a representative of an architect office who wishes to be selected as a reconstruction design firm in the course of investigating a petition case against a reconstruction association representative, the case holding that it cannot be dismissed as related to the receipt of money and the investigation of a petition case, which is a duty of a police officer,

[1] Article 129 of the Criminal Act / [2] Articles 129 and 133 of the Criminal Act

[1] Supreme Court Decision 99Do4940 delivered on January 21, 2000 (Gong2000Sang, 530) Supreme Court Decision 2005Do4737 delivered on February 24, 2006 (Gong2006Sang, 554)

Defendant 1 and one other

Prosecutor

Attorney Lee Young-young (for defendant 1)

Seoul High Court Decision 2005No392 decided May 27, 2005

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

The grounds of appeal are examined.

1. In light of the circumstances stated in its reasoning, the lower court determined that Defendant 1’s duty of selecting a design service company, which is the content of the solicitation, cannot be deemed as receiving a bribe in relation to the investigation of a petition case, as long as the duty of selecting Defendant 1 cannot be deemed as Defendant 1’s duty, even if Defendant 2, etc. was in a position that could practically affect Nonindicted 2, etc., and received money in relation thereto, even if having been paid money, it cannot be deemed that Defendant 1 received a bribe in relation to the investigation of a petition case, which is the duty of Defendant 1, even if he was in a position that could have a de facto impact on Nonindicted 2, etc. and received money in relation thereto.

2. Bribery is the legal interest protected by the law of the performance of duties, the trust in the society, and the non-purchase of the act of performing duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of the received money and valuables, it is sufficient that money and valuables have been received in relation to the performance of duties, and there is no need to specify the act of performance of duties. Furthermore, the determination of which profit a public official obtained is an unjust profit in relation with a job and an interest provider, whether there is a special relationship between a public official and an interest provider, whether there exists a special relationship between a private person and an interest provider, and the process and time of giving and receiving benefits should be made after considering all the circumstances such as the contents of the public official's duty, the relationship between a public official and an interest provider, whether there is a special relationship between a private person and a two parties, and the legal interest protected by the law of the law. In light of the above legal interest, the public official's trust in the performance of duties and the non-purchase of duties is the basis for determination of bribery (see Supreme Court Decision 2000Do494.).

According to the facts and records acknowledged by the court below, on April 8, 200, Nonindicted 2, 4, and 5 et al., who are members of the association, filed a petition to punish Nonindicted 1, who was acting as the president of the association, and followed the plan to lead the reconstruction project, such as saving out the enforcement department, such as Nonindicted 1, and replacing the contractor and the designer, centering on the petition. From May 21, 2000, Defendant 1 was in charge of the suppression case, Nonindicted 2 et al. at a restaurant or a tea, which is not a police station, and requested Nonindicted 20 to leave the reconstruction project by a resolution of the public prosecutor around September 20, 200. At that time, Defendant 2 presented a new design order, including the drawing of the existing design company and the arrangement of management, and provided Defendant 1’s new design instructions to the 10th of the 10th of the 19th of the 20th of the 10th of the 10th of the 20th of the 20th of the 10th of the 20th of the design.

If the facts are as above, it is deemed that there was a significant interest in the progress and treatment of the appeal case by Defendant 2, as well as Nonindicted 2, etc., who wished to be selected as a reconstruction design firm by Nonindicted 2, etc., and Defendant 1 received 50 million won over three times, the first time when the defendant 1 was issued a draft of command of the new detention opinion from October 19, 2000 to December 19, 200, when Nonindicted 1 was sent by Nonindicted 1, and the Defendants were 10 years prior to and after the arrival of the case, and the name of the Defendants were not accurately known until they were investigated as the fact that they received the instant money. In light of the legal principles as seen earlier, it is not recognized that there was no specific relation between Defendant 2 and the reconstruction design firm’s representative after the detention of Nonindicted 1, and that there was no other specific relation between Defendant 2 and the reconstruction business entity.

The court below deemed that Defendant 2’s solicitation by Defendant 1 had Defendant 1 investigate a petition case, and used his influence on Nonindicted Co. 2, etc., the petitioner to select Nonindicted Co. 3 as a design firm. However, even according to the recognition of the court below, Nonindicted Co. 2, etc. should promptly investigate Nonindicted Co. 1 and severely punish Nonindicted Co. 1, etc., but can be excluded from the partnership’s business and can be selected as a design firm by Nonindicted Co. 2, etc., who contacted Defendant 1 through Defendant 1. Thus, it should be said that Defendant 2’s delivery of the above money was premised or included in the purport that Defendant 2 would cause harm to Nonindicted Co. 1, etc. in the direction favorable for Nonindicted Co. 2, etc. to receive design services.

Nevertheless, the court below decided that the amount of this case was not related to the defendant 1's duty and sentenced not guilty against the defendant. Thus, the court below erred in the misapprehension of legal principles as to the duty relationship of bribery and the misapprehension of a serious mistake of facts as to the basic fact, which affected the conclusion of the judgment.

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 Ill-sook (Presiding Justice)