[1] Where a special law takes precedence over a general law and the principle that a new law takes precedence over a former law is applied, and the standard for determining whether a special law takes precedence over a former law is inconsistent and promoted

[2] Whether Article 129-2 of the Road Traffic Act preferentially applies to the executives and employees of the Road Traffic Authority, which are quasi-governmental institutions under the former Act on the Management of Public Institutions, and Article 53 of the former Act on the Management of Public Institutions is excluded (negative)

[1] In general, a special law takes precedence over a general law, and the principle that the new law takes precedence over the former law applies to cases where a law, which is a written law of the same form, conflicts and conflicts with each other. Whether the law conflicts and conflicts between other should be determined by comprehensively examining the legislative purpose, provisions, scope of application, etc. of the law.

[2] The purpose of the former Act on the Management of Public Institutions (amended by Act No. 14076, Mar. 22, 2016; hereinafter “Public Institutions Operation Act”) is to contribute to promoting public service by rationalizing management and enhancing transparency in the operation of public institutions by prescribing fundamental matters concerning the operation of public institutions and necessary matters for establishing a self-regulation and responsible management system (Article 1); and Articles 2(1), 4 through 6 are applicable to public institutions and quasi-governmental institutions; and Article 53 of the Act on the Management of Public Institutions separately designated and publicly notified as public institutions (Articles 2(1), 4 through 6). In addition, Article 53 of the Public Institutions Operation Act provides that public institutions shall be limited to public officials in charge of bribery in light of their characteristics, inasmuch as public officials need high-quality integrity and influence in their duties, regardless of their nature.

On the other hand, the Road Traffic Act aims to ensure the safe and smooth flow of traffic by preventing and removing all traffic risks and obstacles that occur on the road (Article 1). The Road Traffic Act requires the establishment of the Road Traffic Authority to contribute to the prevention of traffic risks and obstacles by establishing traffic order and improving traffic safety through education, publicity, research, technology development, and administration of driver's license tests (Article 120). Furthermore, Article 129-2 of the Road Traffic Act provides for the purpose of transferring the driver's license tests and aptitude tests conducted by the Road Traffic Act in charge of the driver's license test management authority, which is a national administrative agency, to the Road Traffic Authority for the purpose of transferring them to the Road Traffic Authority for the driver's license tests and aptitude tests conducted by the Road Traffic Act (Act No. 10382, Jul. 23, 2010). This is a newly established provision without limiting the application of penal provisions or penal provisions under the Act on the Management of Public Institutions, regardless of whether an executive officer or employee of the Road Traffic Authority is a public agency.

As such, Article 53 of the Act on the Management of Public Institutions and Article 129-2 of the Road Traffic Act may not be deemed to be inconsistent and undermining the relationship between the executives and employees of the Road Traffic Authority, who are quasi-governmental institutions under the Act on the Management of Public Institutions, with priority over the application of Article 129-2 of the Road Traffic Act to the special law or new law, and Article 53 of the Act on the Management of Public Institutions cannot be deemed to be excluded.

[1] Article 129 of the Criminal Act; Article 53 of the former Act on the Management of Public Institutions (Amended by Act No. 14076, Mar. 22, 2016); Article 129-2 of the Road Traffic Act / [2] Articles 129, 130, 131, and 132 of the Criminal Act; Articles 1, 2(1), 4, 5, 6, and 53 of the former Act on the Management of Public Institutions (Amended by Act No. 14076, Mar. 22, 2016); Articles 1, 120, 123 subparag. 11, 123, 13, 129-2, 147(5), and (6) of the Road Traffic Act

[1] Supreme Court Decision 88Nu6856 delivered on September 12, 1989 (Gong1989, 1479)

Defendant

Defendant

Law Firm More Pump Law Firm, Attorneys Jeong-soo et al.

Seoul Central District Court Decision 2013No2778 Decided October 17, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the application of the legal fiction provision to public officials

A. Article 53 of the former Act on the Management of Public Institutions (amended by Act No. 8258, Jan. 19, 2007; Act No. 14076, Mar. 22, 2016; hereinafter “Public Institutions Operation Act”) provides that “an executive or employee of a public corporation or quasi-governmental institution, an executive committee member, and a member of the executive recommendation committee, who is not a public official, shall be deemed a public official in the application of Articles 129 through 132 of the Criminal Act, and the Road Traffic Authority is a quasi-governmental institution designated and publicly notified by the Public Institutions Operation Act.”

Meanwhile, Article 129-2 of the Road Traffic Act (amended by July 23, 2010) provides that "executive officers and employees of the Road Traffic Authority shall be deemed public officials in applying penal provisions under the Criminal Act or other Acts with respect to the duties under Article 123 subparagraph 11 through 13 of the Road Traffic Act and the duties under Article 147 (5) and (6)." Here, "the duties under Article 123 subparagraph 11 through 13 of the Road Traffic Act" refers to the duties of driver's license test, the duties of aptitude test for a person who has obtained a driver's license, the duties of road traffic safety entrusted by the State or a local government, and "the duties of the Road Traffic Authority to which it has become acting on behalf of the Commissioner of the Local Police Agency or the Road Traffic Authority" refers to the duties of administering driver's license-related duties, the qualification examination for instructors and skill examiners of driver's licenses, and the duties of issuing skill examiners.

B. According to the above provisions, the executive officers and employees of the Road Traffic Authority are deemed public officials only when the bribery, etc. is applied under the Criminal Act from January 19, 2007 pursuant to the Act on the Management of Public Institutions. However, after the revision of the Road Traffic Act on July 23, 2010, the provisions deemed public officials concerning the driver’s license test management as proxy by the Road Traffic Authority were newly established.

The argument in the grounds of appeal is that the Road Traffic Act is a special law on the operation of public agencies and the legal fiction provision of public officials in the Road Traffic Act is newly established later than the Public Agency Operation Act, so it should be applied only to the legal fiction provision of public officials under the Road Traffic Act and the legal fiction provision of public officials under the Public Agency Operation Act after the introduction of the above new provision in the Road Traffic Act in accordance with the principle of priority and the principle of priority in the new law.

C. In general, a special law takes precedence over a general law, and the principle that the new law takes precedence over the former law applies to cases where a law, which is a written law of the same form, conflicts and conflicts with each other. In this context, whether the law conflicts or conflicts with other should be determined by comprehensively examining the legislative purpose, provisions, scope of application, etc. of the law (see Supreme Court Decision 88Nu6856, Sept. 12, 1989, etc.).

However, the purpose of the Act on the Management of Public Institutions is to contribute to the promotion of public service by rationalizing the management and enhancing transparency in the operation of public institutions by prescribing basic matters concerning the operation of public institutions, and necessary matters concerning the establishment of a self-management and responsible management system (Article 1), and by classifying public corporations, quasi-governmental institutions, and other public institutions into public institutions (Articles 2(1), 4 through 6). In addition, Article 53 of the Act on the Management of Public Institutions provides that public institutions, executives, employees, etc. shall be appointed as public officials only when the provisions of bribery are applied under the Criminal Act, regardless of the nature of the duties in charge, in light of the characteristics of their status.

On the other hand, the Road Traffic Act aims to ensure the safe and smooth flow of traffic by preventing and removing all traffic risks and obstacles on the road (Article 1). The Road Traffic Act stipulates that the Road Traffic Act shall be established in order to establish traffic order and to contribute to preventing traffic risks and obstacles on the road by establishing traffic safety and improving traffic safety through education, publicity, research, technology development and administration of driver's license tests (Article 120), and that the Road Traffic Act shall not be limited to any public institution or any public institution under the Act on the Management of Road Traffic, regardless of whether the Road Traffic Act is designated and publicly notified as a public institution or any public institution under the Act on the Management of Road Traffic, for the purpose of transferring the driver's license test and aptitude test affairs in the driver's license test that the Road Traffic Act is a national administrative agency, to the Road Traffic Authority, for the purpose of transferring them to the Road Traffic Authority. This is a newly established provision that is amended by Act No. 10382, Jul. 23, 2010.

As such, Article 53 and Article 53 of the Act on the Management of Public Institutions (a clause newly established after the amendment of July 23, 2010) cannot be deemed to be in conflict with and undermining one another by different legislative purpose, legislative history, regulations, scope of application, etc. Therefore, with respect to the executives and employees of the Road Traffic Authority (a clause newly established after the amendment of July 23, 2010) who are quasi-governmental institutions under the Act on the Management of Public Institutions, they shall be preferentially applied to the executives and employees of the Road Traffic Authority (a clause newly established after the amendment of July 23, 201) and Article 53 of

D. In the same purport, the lower court was justifiable to have determined that the Defendant may be deemed a public official in accordance with Article 53 of the Public Institutions Operation Act. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the principle of priority in the special law, the principle of priority in the new law, the principle of no punishment without prison labor, and the basic principle

2. As to the assertion of misapprehension of legal principles as to job relationship

When a public official receives money, valuables, or other benefits from a person subject to his duties, it shall not be deemed to have no relation to his duties, barring any special circumstances, such as where it is deemed that he has been repaid to a person who received money, valuables, or other benefits from the former public official, and it is merely an equivalent consideration in light of the social norms, or where it is obviously recognized that an individual relationship is due to the demand of the class, etc., in connection with the duties of the public official. If a public official received money and valuables in relation to his duties, even if he received money and valuables by lending the form of private classsetting, such money and valuables shall be a bribe (see Supreme Court Decision 9Do4940, Jan. 21, 200, etc.

For the reasons indicated in its holding, the lower court determined that the entertainment as stated in Nos. 1 4 and 3 million won in the list of crimes as indicated in the judgment of the lower court, which the Defendant received from the Nonindicted Party, and the entertainment as listed in Nos. 2 1 through 11 of the list of crimes

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

3. Conclusion

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

Justices Kwon Soon-il (Presiding Justice)