[1] The standard for determining whether a public official’s profit constitutes a bribe as an unfair profit having a quid pro quo relationship with his/her duties

[2] In a case where a donation is recognized as a quid pro quo relationship with a job act, whether it constitutes a bribe under the pretext of a private law (affirmative)

[3] The case holding that money and valuables provided to elementary school teachers from their parents constitute a bribe

[1] Whether a certain profit obtained by a public official constitutes a bribe as an unfair profit with a quid pro quo relation, must be determined by considering all the circumstances such as the duty contents of the public official in question, the relationship between a job and a benefit provider, whether there exists a special relationship between both parties, the degree of interest, the circumstances and timing of receiving benefits, etc. In light of the fact that the crime of bribery is the process of performing the duty and the trust of the society as a legal interest protected by the law, whether a public official's receiving such benefit is suspected of being fair in performing the duty from the general society is also the criteria for determining whether the crime of bribery is a legitimate act

[2] Since a bribe refers to an illegal profit as a consideration for an act related to his/her duties, a gift as a mere private example without relation to his/her duties cannot be deemed a bribe, but in cases where a quid pro quo relation is acknowledged, a bribe cannot be denied even if it borrows the name of a private legal example.

[3] The case holding that money and valuables provided to elementary school teachers from their parents constitute a bribe

[1] Article 129 of the Criminal Act / [2] Article 129 of the Criminal Act / [3] Article 129 of the Criminal Act

[1] [2] Supreme Court Decision 99Do4940 delivered on January 21, 200 (Gong2000Sang, 530) / [1] Supreme Court Decision 95Do1269 delivered on September 5, 1995 (Gong195Ha, 3458) Supreme Court Decision 94Do302 delivered on January 23, 1996 (Gong1996Sang, 703) Supreme Court Decision 97Do2609 Delivered on December 26, 1997 (Gong198Sang, 475) / [2] Supreme Court Decision 97Do3113 delivered on March 10, 198 (Gong198Sang, 1102]

Defendant

United States of America

Attorney Lee In-bok

1. The defendant shall be punished by a suspension of qualification for one year;

2. The sum totaling KRW 150,000 shall be collected from the defendant.

The defendant is a public official who was a teacher in the first and third classes of the first grade at (school name omitted) elementary school located in Daegu-gu ( Address omitted), 1995;

1. On May 195, 1995, in the class above the above half of the class, Non-Indicted 1, who was a school student, is attending the school by taking up approximately one-month course, and his mother, Non-Indicted 2, who is his mother, is likely to be unable to adapt to school life by taking bullying from other students, and thus, the above Non-Indicted 1, 100,000 won was received from the principal, and received a bribe in relation to his duties so that he can adapt to school life, and the above Non-Indicted 1, who is the principal, can sufficiently look at his school life;

2. Around November 10 of the same year, Nonindicted 3, the mother of Nonindicted 3, who is a school student, found at the window of “Aban” operated by Nonindicted 4 near the above school, and demanded money and valuables from his female at the same time by saying, “I am fright at the school. I sent it to the student? I send it? I send it to the student?” On October 15 of the same year, the above Nonindicted 4 sent it to the Defendant through the above Nonindicted 3 with a guide asked whether I want to attend the school’s conference through the above Nonindicted 3, and presented it to the Defendant through the above Nonindicted 3, who received the above guide to the effect that “I am fright at the school, if I am am fright, I am at the school” with the Defendant’s words, “I am am at the school, I am at the 0-day level, and I am am at the school. I am see that I am am at the school’s night and me. I am at the school.

The facts of the ruling shall:

1. Statements corresponding thereto made by the defendant in this Court;

1. Each statement that corresponds to the statement made by a prosecutor and a senior judicial police officer on Nonindicted 4, 3, and 2 in the course of handling administrative affairs;

1. As a whole, it can be recognized by taking account of the descriptions corresponding to the list of students, all of them are proven.

1. Relevant legal provisions: Article 129 (1) of the Criminal Act;

2. Selection of punishments: Selection of each suspension of qualifications; and

3. Aggravation of concurrent crimes: The former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (Aggravation of the punishment for the crime of acceptance of bribe with heavy holding that the punishment is more severe);

4. Additional collection: Article 134 of the Criminal Act.

5. Grounds for sentencing;

Whether a bribe constitutes an unjust profit in relation to a public official’s duty and a quid pro quo should be determined by taking into account all the circumstances such as the contents of the official duty of the relevant public official, the relationship between a provider of benefits, the existence of a special private-friendly relationship between both parties, the difference of benefits, the circumstances and timing of receiving benefits, etc. In light of the fact that the crime of bribery is protected by the legal interest of the public official’s fair performance of duty and the trust in society, the issue of whether a bribe is doubtful as a fair performance of duty by a public official is determined in the determination of the nature of the crime of bribery (see Supreme Court Decision 97Do3113, Mar. 10, 198; Supreme Court Decision 97Do3113, Mar. 10, 1998). Since a bribe refers to an illegal profit in relation to his duty, donation that merely gives or receives as a bribe can not be viewed as a pure bribe even if it is acknowledged that the amount of the bribe received by the Defendant’s private-related person’s own interests, as well-known to the extent of the Defendant’s political interest.

The Defendant’s crime of this case is not limited to passive acceptance of bribe, and furthermore, it is extremely poor that the law is committed by using de facto public conflicts, which would provide bribe without his parents’ consent. Moreover, the Defendant’s children who provided money and valuables to the Defendant are still at elementary school despite his or her misunderstanding, and it is difficult to investigate the parents who provided money and valuables to the Defendant, with the knowledge that it is difficult for the Defendant to thoroughly deny the crime of this case during the investigation process and to protect the students who provided money and valuables. However, it is long time to view that parents did not want to give money to the Defendant. Considering the fact that the Defendant’s act of this case does not have any mind that it would be impossible to recognize it if he or she argued that he or she had provided money to the Defendant, the Defendant should be aware of the fact that he or she had been working in the school for a long time, and that it would be difficult for the parents to recognize that he or she would have been aware that he or she would have been able to sell it to the majority of his or her children.

It is so decided as per Disposition for the above reasons.

Judges Kim Chang-sap (Presiding Judge)