[1] In a case where money and valuables received, demanded, or promised by a public official are indivisiblely combined with the nature of consideration for an act other than a duty and the nature of an act other than a duty, whether all money and valuables have the nature of consideration for an act of duty (affirmative)

[2] In a case where money and valuables received under the pretext of political funds, election funds, etc. have the substance of a quid pro quo for the act of performing duties of a political public official, whether a bribe is recognized (affirmative), and in a case where there is room to view the receipt of money and valuables over several occasions and there is a difference in whether

[1] Article 129 of the Criminal Act / [2] Article 129 of the Criminal Act

[1] Supreme Court Decision 2002Do46 Decided August 23, 2002 (Gong2002Ha, 2260) Supreme Court Decision 2009Do3039 Decided July 9, 2009 / [2] Supreme Court Decision 96Do378 Decided April 17, 1997 (Gong197Sang, 1368), Supreme Court Decision 97Do2609 Decided December 26, 1997 (Gong198Sang, 475) (Gong2009Do2453 Decided May 26, 201)

Defendant

Defendant and Prosecutor

Han Law Firm et al.

Seoul High Court Decision 2011No1269 decided September 8, 2011

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. According to the records, the non-indicted in the court of first instance recognized the formal and substantial authenticity of the protocol in which the statement was made by his investigation agency as a witness in the court of first instance, and the cross-examination of the defendant's statement made in the investigative agency was conducted in the course of testimony. Meanwhile, the defendant's family's meeting was guaranteed as well as the defendant's meeting at the time when the defendant's statement was made at the investigation agency, and the situation where the time to rest was provided can be known. Thus, the court below held that the protocol in which the statement made by the non-indicted and the defendant's investigation agency was admissible as evidence under Article 312 (3) or (1) of the Criminal Procedure Act and adopted it as evidence of conviction as to the facts

B. Examining the evidence duly admitted by the court below in light of the reasoning of the judgment below, the court below is just in finding the duty relationship of money and valuables received in relation to each of the facts charged on the basis of various indirect facts such as the recognition, and finding the defendant guilty of the facts charged. The court below did not err by misapprehending the legal principles regarding the establishment of the crime of bribery or by exceeding the bounds of the principle of free evaluation

C. The act of contribution of political funds is a financial support for political activities and a bribe is received as illegal consideration for a public official’s official’s duty. Thus, even if certain money and valuables are received as political funds, it is not always impossible to acquire the character of a bribe at the same time in substance as a bribe (see Supreme Court Decision 2010Do6894, Jul. 29, 2010, etc.).

The court below acknowledged the relationship between the acceptance of bribe and the violation of the Political Funds Act with respect to the acceptance of money and valuables in this case, considering that the money and valuables in this case received by the defendant by means not stipulated in the Political Funds Act are funds for the defendant's election campaign at the same time, and the total amount is also a quid pro quo for the defendant's occupational act, and it cannot be deemed unlawful. Therefore, the court below did not err by misapprehending the legal principles as to the nature of the money and valuables received by the defendant, as otherwise alleged in the grounds of appeal, since Supreme Court Decision 91Do364 Decided February 28, 192, which is cited in the grounds of appeal,

2. As to the Prosecutor’s Grounds of Appeal

Where money and valuables received, demanded, or promised by a public official are inseparably combined with the nature of the consideration for an act other than his/her duties and as a case for an act other than his/her duties, all the money and valuables received, demanded, or promised are in the nature of consideration for an act of duties indivisible (see, e.g., Supreme Court Decision 2009Do3039, Jul. 9, 2009). In addition, even if money and valuables are received under the pretext of political funds, election funds, etc., they do not lose the nature of a bribe as long as they have an substance as compensation for an act of a political official’s duties, and even if there are some cases where a pure political fund among money and valuables received is included in part, it does not interfere with the deeming it as a bribe (see Supreme Court Decision 97Do2609, Dec. 26, 1997); Provided, That it is necessary to determine whether such money and valuables were related to each act of giving and receiving duties where there is room to deem it differently by act of duties (see Supreme Court Decision 2005Do42536, May 29, 206.

The court below also recognized that the money and valuables in this case were received as election fund to the defendant who is a political party, but it is not denied the substance of the consideration for occupational activities, such as authorization and permission to an enterprise within the jurisdiction of the defendant who is a public official of ○○ market, and therefore, the nature of the consideration for occupational activities and the nature as political funds are indivisible. As determined by the court below, since the money and valuables received in this case have the nature of the consideration for occupational activities as determined by the court below, it shall be deemed that the entire money and valuables received in this case shall not be considered as a bribe

Nevertheless, while the court below found that the money received in this case is combined with the money in relation to the defendant's duty act and compensation amount, and it is indivisiblely combined with other money, it found the defendant not guilty on the grounds of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes following the receipt of KRW 100 million due to lack of proof as to the division or the specific amount of the acceptance of the bribe, and found the defendant guilty only of the simple acceptance of the bribe under Article 129 (1) of the Criminal Act. The court below erred by misapprehending the legal principles as to the acceptance of the bribe amount, and the prosecutor's ground of appeal

3. Scope of reversal

The part of the judgment of the court below concerning the acceptance of bribe should be reversed, which is the relation between the crime of violation of the Political Funds Act and the commercial concurrent crimes under Article 40 of the Criminal Act, and the judgment of the court below should be reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)