Article 53 of the Act on the Management of Public Institutions provides that a person who is not a public official as an executive officer or employee of a public corporation shall be deemed a public official in the application of Article 129 of the Criminal Act, and the designation of a public corporation shall be governed by the public notice of the Minister of Strategy and Finance, which is a subordinate norm, is in violation of the principle of legality

In addition to the legislative purpose and contents of Articles 4, 5(1), 5(2), 5(3)1(a), and 53 of the Act on the Management of Public Institutions (hereinafter “Act”), Article 7 of the Enforcement Decree of the Act on the Management of Public Institutions (hereinafter “Enforcement Decree”), it is inevitable to continuously change the contents and scope of projects of public institutions according to the legislative purpose and economic situation or policy purpose. Considering that it is difficult for the National Assembly to predict the financial status and the number of employees of public institutions and it is not easy for it to amend the Act every time to respond to such changes, it is not easy for it to amend the Act. In light of the legislative purpose of the Act and the Enforcement Decree, “market-type public corporation” clearly refers to a public corporation whose size of assets is more than 2 trillion won and whose total revenue amount is more than 85%, the public corporation can be deemed to have been delegated to the Minister of Strategy and Finance with the authority of the Ministry of Strategy and Finance to specify the requirements and scope of its authority as a public corporation under Article 5 of the Criminal Act.

Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1) and 129 of the Criminal Act; Articles 4, 5(1), 5(2), 5(3)1(a), and 53 of the Act on the Management of Public Institutions; Article 7 of the Enforcement Decree of the Act on the Management of Public Institutions

Defendant

Defendant

Law Firm Chuncheon, Attorney Yoon Tae-tae, Counsel for defendant-appellant

Busan High Court Decision 2012No208, 504 decided January 17, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In the context of the crime of bribery, if the accepter claims that he/she has received money from the accepter but not received the money from the accepter, whether or not the accepter actually borrows the money shall be determined by taking full account of all the objective circumstances revealed by evidence, such as the motive, reason for delivery, and method of receiving the money from the accepter, the relationship between the accepter and the accepter, the position and work experience of the accepter, the need for borrowing the money, the possibility of borrowing the money from the person other than the accepter, the amount and method of borrowing the money, the economic situation of the accepter and the amount of the borrowed money, the amount of the borrowed money, the economic situation of the accepter, the amount of the secured money, the existence of payment period and interest agreement, the possibility of compulsory execution, etc. (see, e.g., Supreme Court Decisions 2009Do4386, Sept. 30, 201; 201Do2616, Nov. 10, 2011).

For the reasons indicated in its holding, the lower court determined that, on the grounds indicated in its reasoning, the Defendant, an employee of the Korea hydroelectric Energy Corporation, received total of KRW 55 million from the Nonindicted Party, who was the representative of the ○○ Industry, who entered into a supply contract with the said Company, as a bribe in relation to his

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted by the lower court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors of law by

2. Regarding ground of appeal No. 2

It is practically impossible to stipulate all laws and regulations related to criminal punishment by law within a formal meaning without exception due to the complex and diversification of social phenomenon, the limit of professional and technical capabilities of the National Assembly, and the limit of the ability to adapt to the passage of time, and it is not in fact impossible to stipulate all laws and regulations related to criminal punishment by law without exception, and since it is not appropriate to do so, in cases where detailed discipline of legislators is impossible or it is strongly required to flexibly cope with changes in the situation, the delegated law shall be specifically determined to the extent that it can be predicted in terms of the constituent elements of punishment, and in terms of punishment, delegated legislation is allowed under the premise that the kind, limit, and width of punishment are clearly prescribed (see, e.g., Supreme Court Decisions 2005Do7474, Jan. 13, 2006; 2009Do8537, Apr. 29, 2010).

Article 53 of the Act on the Operation of Public Institutions (hereinafter referred to as the "Act") provides that an executive officer or employee of a public corporation or quasi-governmental institution who is not a public official shall be deemed a public official in the application of Articles 129 through 132 of the Criminal Act. Article 4 of the Act provides that the Minister of Strategy and Finance may designate any of the following public institutions as a corporation, organization, or public institution, other than the State or a local government, and Article 5 (1) of the Act provides that the Minister of Strategy and Finance shall classify the public institution into a public corporation, quasi-governmental institution, or other public institution, the prescribed number of employees of which is at least 50, and Article 53 (2) of the Act provides that the Minister of Strategy and Finance shall designate a public corporation or quasi-governmental institution from among public institutions with the prescribed number of employees of at least 10,000, and Article 129 (3) of the Act provides that the public corporation or quasi-governmental institution shall be designated from among public institutions with the total revenue of at least 10, 10,0,0, and 15, respectively:

In addition to the purport and contents of the aforementioned relevant Acts and subordinate statutes, it is inevitable for the National Assembly to stipulate the basic matters concerning the operation of public institutions and the matters necessary for the establishment of a self-management and a responsible management system to rationalize its management and enhance transparency in its operation, and to continuously change the contents and scope of its business according to the legislative purpose and economic situation or policy purpose. In particular, the National Assembly cannot predict the financial status and the number of employees of public institutions and to respond to such changes, and it is not easy for it to amend the law whenever it comes to cope with such changes. In light of the definitions of public corporations, etc. subject to the legal fiction provision of public officials, rather than the Enforcement Decree or the Public Notice, which is not the Act, and its Enforcement Decree, the Act and its Enforcement Decree clearly stipulate that the amount of its assets is not less than 2 trillion won and whose total revenue amount is not less than 85%, and thus, it can be deemed that the Minister of Strategy and Finance delegates its authority to designate the type of public corporation to the Minister of Strategy and Finance, rather than the public corporation’s public corporation’s statutory authority.

In addition, the grounds for reduction or exemption of punishment under Article 66(1) of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission are nothing more than necessary grounds for reduction or exemption of punishment, but rather discretionary grounds for discretion of the court. Thus, it cannot be deemed unlawful on the ground that the court below did not reduce punishment on the grounds alleged by the defendant. In this case where imprisonment for less than 10 years is sentenced, unfair sentencing

3. Conclusion

The appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)