Defendant

Both parties

Analky's (prosecution), a pre-stein, or a re-stein (public trial)

Law Firm Barun Law LLC, Attorneys Yoon-Gyeong et al.

Seoul Central District Court Decision 2012Gohap1753 Decided April 12, 2013

The acquittal portion of the judgment of the court below shall be reversed.

Of the facts charged of this case, abuse of authority and obstruction of another’s exercise of rights are acquitted.

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

The court below found the defendant guilty of the acceptance of bribe among the facts charged in this case due to misunderstanding of facts or misapprehension of legal principles, even though the defendant did not have any intention to accept bribe, on the ground that the other non-indicted, who was active sexual cruels from the non-indicted and lost a prudent self-defense, was sexually sexually sexually sexually sexually, and was sexually sexually sexually sexually sexually sexually sexually sexually sexually impaired,

2) Unreasonable sentencing

The punishment sentenced by the court below (two years of imprisonment) is too unreasonable.

(b) Prosecutors;

According to the evidence submitted by the prosecutor, the court below found the non-indicted 1 guilty of this part of the facts charged on the ground that the defendant abused official authority and allowed the non-indicted 1 to enter the Gu's office, not the prosecutor's office, and did not perform any duty.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant and the prosecutor, the prosecutor examined ex officio prior to the judgment on the grounds for appeal by the defendant and the prosecutor, and in the facts charged of abuse of authority and obstruction of exercise of rights among the facts charged in the instant case, the defendant, who is a public official, made the non-indicted 1 enter the office of the prosecutor, not the office of the prosecutor but the office of the prosecutor, and let the non-indicted 1 leave the office of the defendant's vehicle, etc., and let the defendant, who is a public official, leave the office of the prosecutor, and let the non-indicted 1 go into the office of the Gu, not the office of the prosecutor, and let the non-indicted 1 go into the office of the non-indicted 2, etc. do not have any duty. The judgment of the court below is no longer maintained because the above grounds for appeal by the defendant and the prosecutor are modified by permission. However, despite the above reasons

3. Determination on the grounds for appeal

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

1) Job relevance and compensation for business

A) Relevant legal principles

(1) Bribery is a public official’s process of performing his duties, the trust in the society, and the impossibility of performing his duties. Since the public official’s act does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of the received money and valuables. Moreover, it is sufficient that the money and valuables were received in connection with his duties, and there is no need to have an individual act or a quid pro quo relation. When a public official receives money and valuables or other benefits from a person subject to his duties, it cannot be deemed that there is no relation with his duties unless there are special circumstances, such as where it can be clearly recognized that it is due to the demand of decentralization in personal friendly relations. If a public official received money and valuables in connection with his duties, the received money and valuables shall constitute a bribe (see Supreme Court Decision 2001Do3579, Oct. 12, 201, etc.).

The duties referred to in the crime of bribery include not only the duties under the control of law, but also the acts closely related to the duties or the acts of actual involvement in the custom or the duties (see Supreme Court en banc Decision 98Do3697 delivered on June 15, 2000, etc.).

Article 22(1) of the Civil Act provides that “A public official shall be deemed to have a private relationship with a public official in consideration of the public official’s duty, the relationship between the provider and the provider of the benefit, whether there exists a special relationship between the parties, and the circumstances and timing of receiving the benefit.” In light of the fact that the legal interest of the crime of bribery is the fairness of performing his duties and the trust of the society, whether the public official’s receiving the benefit is suspected of being fair in performing his duties, and whether the crime of bribery is a public official’s receiving the benefit, shall also be the standard for determining whether the crime of bribery is a public official’s receiving the benefit (see Supreme Court en banc Decision 98Do3697, Jun. 1

B) Determination

(1) In light of the facts acknowledged by the lower court and the first instance court, the Defendant was aware of the following facts. ① The Defendant, as the main prosecutor of the Seoul Eastern District Prosecutors’ Office, was directly and comprehensively authorized to investigate the instant case, and was in the position to first determine the direction of handling the instant case. ② The Defendant first met the Nonindicted Party on November 10, 2012 with the main prosecutor’s relationship and the suspect’s relationship. On November 12, 2012, the Nonindicted Party only requested consultation with the Nonindicted Party on the matter of habitual larceny, and the Defendant did not have any other relationship between the Defendant and the Nonindicted Party, including individual contact or contact, and the Defendant did not have any other relationship between the Nonindicted Party and the Defendant, on the grounds that he/she was habitually informed of the fact that he/she did not have any contact with the Nonindicted Party, and thus, he/she could have any general relation with the Nonindicted Party, including but not limited to the relationship between the prosecutor’s office and the Defendant’s office, to the extent that he/she had no contact with the Nonindicted Party.

Do. The Defendant asserted that the Nonindicted Party recorded the conversation with the Defendant from the beginning and demanded the agreement to the effect that there was no relevance to duties and consideration in light of the fact that the Nonindicted Party had been sexual assault before the result of the said habitual larceny case, but the lower court and the lower court stated to the effect that, in light of the facts acknowledged by the evidence duly admitted and investigated by the lower court and the lower court, the Nonindicted Party stated that “The Nonindicted Party recorded all the circumstances deemed important and the investigation agency believed to have made the agreement with the Defendant,” i.e., the Nonindicted Party stated to the effect that “the Nonindicted Party recorded all the circumstances deemed important”, ii) recorded the conversation from the time when Nonindicted Party was summoned from the Defendant to the prosecutor’s office in a situation where he was unaware of the existence of the Defendant on November 6, 2012, and ③ the Nonindicted Party was expected to have sexual intercourse with the Defendant who was the Nonindicted Party at the time of the Defendant and the Nonindicted Party to have sexual intercourse, the Nonindicted Party did not appear to have been aware of the relationship with the Defendant or the Nonindicted Party, with the Defendant.

2) Whether the acceptance of bribe was intentional

In light of the following facts acknowledged by evidence duly adopted and examined by the lower court and the lower court, ① the Nonindicted Party provided the Defendant with advice on the level of punishment, detention, possibility of suspended execution, etc. over several occasions from November 6, 2012 from the time when the Nonindicted Party first sent sexual intercourses with the Defendant around November 12, 2012, and most of the conversations between the Defendant and the Nonindicted Party were about the settlement of the larceny case against the Nonindicted Party, and ② the Nonindicted Party was extremely limited to conversations unrelated to the said habitual larceny case, such as the Defendant’s personal injury, and ② the Defendant did not know that the Nonindicted Party did not have any intention to commit the crime, but did not know that it was against the Defendant’s duty to know that it was unreasonable for the Nonindicted Party to know that the Nonindicted Party had no intention to commit the crime, and there was no clear doubt that the Defendant had no intention to commit the crime and no intention to commit the crime.

3) Sub-decisions

Therefore, the defendant's ground of appeal on this part is without merit.

B. Judgment on the prosecutor's assertion of mistake

1) In relation to the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “an abuse of authority” means that a public official unlawfully exercises matters belonging to the general authority, namely, where a public official appears to perform an act other than legitimate authority in a formal and external manner, but the standard of determining whether the act constitutes abuse is determined by taking into account all the elements such as the purpose of the public official’s act of performing his/her duties, necessity and reasonableness when considering the situation in which the act was performed, and whether the exercise of authority satisfies the legal requirements permissible (see, e.g., Supreme Court Decision 2006Do339, Feb. 22, 2007). “When a public official causes a public official to perform an unobligatory act” means when a public official causes a person to perform a non-obligatory act (see Supreme Court Decision 2010Do1184, Jan. 27, 2012).

2) In light of the facts acknowledged by the evidence duly adopted and examined by the lower court and the trial court, the following circumstances were revealed: ① around November 12, 2012, the Defendant sent the Nonindicted Party to the Nonindicted Party on the part of the Defendant for investigation, rather than regularly summoned the Nonindicted Party for investigation; ② the Nonindicted Party was actively going to the Defendant with respect to the agreement issues of habitual larceny; ② the Defendant was called from the Nonindicted Party and called from the Nonindicted Party for five minutes, and proposed that the Nonindicted Party “I am only at the exit of the Gu in front of the examination on the same site,” and “I am on the part of the Defendant.” The Nonindicted Party did not have any other evidence to acknowledge that the Defendant was unable to voluntarily leave the Gu’s office in response to his own proposal and returned to the house, and the Nonindicted Party did not have any other evidence to acknowledge that the Defendant was an abuse of the Defendant’s duty on the part of the Defendant, thereby making it open to the public to the public.”

3) Therefore, prosecutor’s ground of appeal is without merit.

C. Determination on the Defendant’s assertion of unreasonable sentencing

1) Although the Defendant did not have a criminal record for the first offense, the Defendant denied his duty relationship and the criminal intent of bribery, it is favorable for the Defendant, such as: (a) the Defendant’s rejection of his criminal record; (b) the Defendant was given a bribe from the Nonindicted Party; (c) the Defendant did not seem to have an intention to leave the Nonindicted Party as a bribe; (d) the Defendant did not actively demand sexual benefits from the Nonindicted Party; (c) the Defendant was dismissed from the prosecutor’s office; (d) the Defendant was divorced from his spouse; and (e) the Defendant was suffered a considerable economic burden.

2) However, the defendant, as a representative of public interest, is a state agency with the comprehensive authority over the State's penal authority, which should guarantee the human rights of a suspect as a subject of investigation, under the Constitution, even though he/she was a prosecutor who is legally obligated to perform his/her duties and duties, he/she had been in an interview with a female suspect who is under investigation as a main prosecutor, and then proposed that he/she be in an interview with the above suspect after this framework, and has a sexual intercourse with the above suspect. In light of the prosecutor's status and duties as above, this is a serious crime difficult to understand. In light of the above prosecutor's status and duties, the defendant's crime of this case committed the crime of this case, which infringes on the fairness and uncertainty of the prosecutor's duty, and the fraud of the whole prosecutor's organization, including the majority of the prosecutors who implicitly perform his/her duties, which affected the defendant's normal relation, it is unreasonable for the court below to have pronounced the above punishment too unfair.

4. Conclusion

Therefore, the defendant's appeal of this case is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since there is no ground for appeal of this case, and since there is a ground for ex officio reversal in the judgment of the court below, this part is reversed in accordance with Article 364 (2) of the Criminal Procedure Act and it is again decided as follows

On November 12, 2012, the Defendant, at around 17:26, at the Seoul Dong-dong Seoul Special Metropolitan City, 680-22, demanded the Nonindicted Party, who was present at the inspection room due to the agreement with the victim of larceny, in relation to the larceny case of the Nonindicted Party, to contact the Nonindicted Party who was present at the inspection room as a matter of agreement with the victim of larceny, and to attend the inspection room as the inspection room, and to wait for the withdrawal at the 1st exit in the Gu office, and at around 20:16 on the same day, it was difficult for the Nonindicted Party, who was waiting before the withdrawal of 1st week in the 2nd subway Line of the Seoul Special Metropolitan City Gwangjin-gu, Gwangjin-gu, Seoul Special Metropolitan City.

As a result, the Defendant, who is a public official, abused his official authority and let the Nonindicted Party enter the Gu, which is not an inspection room, into one exit of the Gu.

As seen earlier, this part of the facts charged constitutes a case where there is no proof of crime, and thus, it is so decided as per Disposition by deciding not guilty under the latter part of Article 325 of the Criminal Procedure Act

Judges Do- Charter (Presiding Judge)