[1] Whether a court may impose confiscation or collection on the facts that are not recognized in the crime (negative), and where it considers that the amount of bribe cannot be specified in the crime, whether a court may impose confiscation or collection (negative)

[2] The case holding that the "total amount of money received" is a bribe received as a consideration for an act of duty, on the ground that the money received by a public official is inseparably combined with the part related to an act of duty and the part not related thereto

[1] Article 134 of the Criminal Act / [2] Articles 129 and 134 of the Criminal Act

[1] Supreme Court Decision 2006Do4885 decided Nov. 13, 2008 (Gong2008Ha, 1707) / [2] Supreme Court Decision 2002Do46 decided Aug. 23, 2002 (Gong2002Ha, 2260)

Defendant

Defendant and Prosecutor

Attorney Park Sang-gu et al.

Seoul High Court Decision 2009No408 decided May 1, 2009

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The prosecutor's remaining appeal is dismissed.

1. The grounds of appeal are examined.

A. As to the Defendant’s ground of appeal

In full view of the adopted evidence, the court below held that the defendant accepted a bribe in relation to his duties on the ground that the defendant's acceptance of the approval of the change of the road establishment and packing work between vibration and forest as of February 16, 2005 and the subsequent contract for the change of the construction cost (hereinafter "the revised contract of February 16, 2005") include the compensation for the offering of convenience. In light of the records, the court below's fact-finding and decision are just and acceptable, and there is no error of law such as violation of the rules of evidence or misunderstanding of legal principles as to the duty relationship in the crime of acceptance of bribe, as alleged in the grounds of appeal.

B. As to the Prosecutor’s Grounds of Appeal

(1) As to the receipt of KRW 40 million in relation to the construction work of Alpentagya in June 2005

The court below held that the defendant worked as the Director General of the Construction Disaster Prevention Bureau of Gangwon-do at around June 2005, which introduced the non-indicted 2 to the regular manager of the GS Construction Co., Ltd. (hereinafter "GS Construction"), but the defendant ordered the construction work of Gangwon-do, not Gangwon-do, and the right to supervise the development work of Gangwon-do and the articles of incorporation of the Gangwon-do Development Corporation reserved the Governor of Gangwon-do to the Governor of Gangwon-do. However, the assistance of the Development Corporation of Gangwon-do is not the defendant's duties, and the defendant did not encourage the executives and employees of the GS Construction Corporation of Gangwon-do to participate in the GS Construction consortium (hereinafter "GS Construction"), and that the defendant's act of receiving or giving or receiving the contract for the construction work of the GS Construction at the time of June 2005 does not constitute the defendant's act of receiving or giving or receiving the contract for the work of the GS Construction Corporation or the defendant's act of receiving or giving or receiving the contract for the construction work.

(2) As to the acceptance of KRW 25 million in relation to the limitation of qualification to participate in bidding at the original state

In full view of the adopted evidence, the court below recognized that the defendant was granted KRW 25 million from Nonindicted 3 under the pretext of the suspension of qualification for participation in the master forest construction in the original forest market, and held that the defendant, who was employed by the Director General of the Construction Disaster Prevention Bureau in Gangwon-do, was not related to the defendant's duties. In light of the records, the above fact-finding of the court below is just and acceptable, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

Meanwhile, the crime of acceptance of bribe is established "when a public official receives, demands, or promises a bribe in connection with his/her duties." The crime of acceptance of bribe is established "when a public official receives, demands, or promises a bribe in connection with the referral of matters belonging to another public official's duties by taking advantage of his/her position," and the elements of the crime are completely different. In addition, according to this part of the facts charged, "the defendant, who is the Director General of the Construction Disaster Prevention Bureau of Gangwon-do, received a bribe in connection with his/her duties after receiving 25 million won as a reward for giving and receiving a bribe through the Director General of the Construction City Bureau of Gangwon-do to prevent the restriction on participation in bidding from being subject to a disposition of restriction on participation in bidding from the original city," and it cannot be deemed that the facts charged to the effect that he/she received a bribe in connection with the referral of matters belonging to another public official's duties are included in the facts charged as a matter of course. Therefore, the court below cannot actively deliberate and decide on the referral of the bribe, and it cannot be accepted.

2. It shall be deemed ex officio.

A. The court below held that among the facts charged of this case 40.2.2.2. 00, the defendant's act of offering 0.2's convenience with regard to the alteration contract of 0.16.2. 0, 205, 200, 300,000 won and 40,000 won and 50,000 won for the alteration of 20,000 won and 40,000 won and 50,000 won and 40,000 won and 50,000 won and 50,000 won and 50,000 won and 10,000 won and 40,000 won and 0,000 won and 20,00 won and 40,00 won and 0,000 won and 0,000 won and 5,00 won and 0,000 won and 4,00,00 won and 2,04,0.

B. However, the court below cannot accept the measures of collecting 10 million won against the defendant in relation to this part of the facts charged for the following reasons.

In order to sentence confiscation or collection as provided in Article 134 of the Criminal Act, the requirements of confiscation or collection should be related to the crime for which a public prosecution has been instituted. Thus, the court should not render a sentence of confiscation or collection with respect to the facts not recognized in the crime.

However, the court below determined that the defendant received an unregistered bribe in return for the provision of convenience related to the modified contract of February 16, 2005 on the ground that the applicable provisions of this part of the facts charged are not objectively calculated by strict proof, and that the case of provision of convenience related to the modified contract of February 16, 2005, among the 40 million won received by the defendant, was collected 10 million won. In light of the above legal principles, the court below determined that the amount of bribe received from the facts charged cannot be specified, so long as the court below determined that the amount of bribe cannot be specified in the facts charged, it should not be sentenced to the collection on the ground that the additional collection constitutes a case where it is not possible to specify the amount of bribe subject to its collection.

Therefore, the judgment of the court below is erroneous in the misunderstanding of legal principles as to collection, and it is clear that this affected the judgment, so the judgment of the court below cannot avoid reversal.

Furthermore, the court below held that the provision of convenience related to the modified contract on February 16, 2005 is related to the defendant's duties, but it constitutes a case where the value of the bribe cannot be objectively calculated by strict proof, and therefore, the defendant's acceptance of the bribe in the amount under the pretext of the honorarium for the above offering of convenience is not acceptable for the following reasons.

In light of the circumstances revealed by the evidence duly admitted by the court below, that is, the defendant received KRW 40 million from Non-Indicted 1 in relation to the amendment contract of February 16, 2005 and the participation of the GS construction consortium. The defendant received KRW 40 million in a lump sum, not through the acceptance of the above KRW 40 million, but through a lump sum, and Non-Indicted 1 who delivered and received the above KRW 40 million, and the defendant who received the above KRW 40 million in return for the amendment contract of February 16, 2005, the rest of the above KRW 40 million in return for the amendment contract of February 16, 2005, and there is no perception that the defendant will deliver or receive the above KRW 40 million in return for the participation of the GS construction consortium, and it shall be deemed that the above KRW 40 million in return for the amendment contract of February 16, 2005 and that there is an indivisible relation between the defendant's participation in the 2016th and 26th 5.

Therefore, the court below should have deliberated more on the pretext of acceptance of the above 40 million won as the defendant's acceptance, and have determined the amount of bribe as the consideration for the contract for the change of February 16, 2005, which is a duty act. However, on the ground that the defendant cannot objectively calculate the consideration for the provision of convenience related to the contract for the change of February 16, 2005, which is the defendant's acceptance of 40 million won, the court below held that the defendant received the above amount of bribe under the pretext of the reward for the provision of convenience. Thus, the court below erred by misapprehending the legal principles on the concept of bribe and calculation of the amount of bribe, or by failing to exhaust all necessary deliberations, and this affected the judgment.

3. Scope of reversal

Therefore, among the convictions of the judgment below, the part of the judgment of the court below which received money or goods in the amount relating to the contract for the change of February 16, 2005 should be reversed, and on the other hand, the court below convicted each of the facts charged as to the receipt of KRW 35 million in relation to the change contract of April 14, 2004, which was not considered as the grounds for appeal. Since the court below sentenced one punishment to the defendant by deeming it as concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment of the court below should be reversed.

4. Conclusion

Therefore, the guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)