[1] The meaning of and criteria for determining “Bribery” and “illegal solicitation” in the crime of offering a third party bribe under Article 130 of the Criminal Code, and whether it is necessary for a public official to commit an unlawful act (negative)

[2] The case affirming the establishment of the crime of offering a third-party bribe in case where the Sungnam City dealt with the affairs related to the alteration of the urban design and building permission of the sperm and the Bain Zone, and where Gap, who promoted the construction project of the main apartment in the above zone, made an implied solicitation for offering convenience to Eul, and the above main apartment is given a contract to Eul for the construction design service of the above main apartment, and requested Gap to do so

[1] Article 130 of the Criminal Act / [2] Article 130 of the Criminal Act

[1] Supreme Court Decision 99Do1911 delivered on July 23, 1999 (Gong1999Ha, 1832) Supreme Court Decision 2001Do970 Delivered on March 15, 2002 (Gong2002Sang, 935) Supreme Court Decision 2004Do3424 Delivered on June 15, 2006 (Gong2006Ha, 1384)

Defendant

Defendant

Law Firm Mau, Attorneys Noh Jeong-soo et al.

Suwon District Court Decision 2003No4371 delivered on July 14, 2004

The appeal is dismissed.

1. In the crime of offering a bribe to a third party under Article 130 of the Criminal Act, the term "illegal solicitation" refers to an unlawful or unfair benefit delivered to a third party by mediating an unlawful solicitation in connection with a public official's official's duties, and "illegal solicitation" includes not only unlawful solicitation but also unfair cases in violation of social rules or the principle of good faith. In determining whether an illegal solicitation has been made, not only the contents of the solicitation, the relationship with the provider of the benefit, the degree of interest, the circumstances such as the timing of giving and receiving the benefit, but also the circumstances such as the fairness in the performance of duties and the protection of the benefits protected by the law of bribery, which is called the fairness in the performance of duties and the impossibility of social trust and performance of duties, are the basis for determining whether the number of benefit can be suspected of the fairness in the performance of duties from the general public (see Supreme Court Decisions 9Do1911, Jul. 23, 199; 2001Do970, Mar. 15, 2002).

In light of the facts and records duly admitted by the lower court upon the Defendant’s request for the alteration of the construction plan, the Defendant is a Seongdong-gu market with authority to the above construction permit. On July 31, 199, the construction of the main apartment complex is restricted by the Korea Land Corporation, which is part of the central commercial area located in Seongbuk-gu Seoul Metropolitan City, where the construction of the main apartment complex is located, and the alteration of the urban design is demanded by the Defendant’s request for the alteration of the construction plan. From the end of August 199, the Defendant officially promoted the alteration of the construction plan by holding explanation of the City, resident presentation, civil discussion, etc. from the end of August 199 to the point that “The construction permit for the main apartment complex is restricted by the construction permit for the main apartment complex under the Seoul Urban Design Guidelines, which is an act of using the aforesaid construction permit for the main apartment complex under the premise that the construction permit for the main apartment complex was transferred to Nonindicted Party 1, the construction permit for the apartment complex under the construction permit for the construction permit for the apartment complex under the premise that the construction permit was changed.

In the same purport, the judgment of the court below which recognized the establishment of the crime of offering a third party bribe in this case is just, and there is no error of law such as misunderstanding of legal principles as to illegal solicitation in the crime of offering a third party bribe, or misunderstanding of facts.

2. In addition, after recognizing the facts in the judgment of the court below, the fact that the plaintiff received an opportunity to participate in the construction design group of the main apartment constructed by the non-indicted 1 is recognized as a bribe in light of the circumstances, and the defendant made the non-indicted 1 enter into the construction design service contract of the building site and the main apartment in return for the illegal solicitation of the non-indicted 1. In light of the records, the above fact-finding and the judgment of the court below are all justified, and there is no error of law such as misconception of facts as to the provision of an unjust solicitation and the provision of a bribe based thereon.

3. Therefore, the 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)