Defendant

Anthalky (prosecution), balkym, balkym, balky, balky (public trial)

Law Firm Barun, Attorney Yoon Gyeong-won and 00

A defendant shall be punished by imprisonment for two years.

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

On February 2, 2012, the Defendant graduated from a professional law school, passed the bar examination on March 2012, and was ordered by a prosecutor on April 1, 2012, and was under training at the law school training center, and was subject to on-the-job training at the Seoul East District Prosecutors' Office from October 2, 2012.

1. Acceptance of bribe on November 10, 2012

On November 6, 2012, at around 22:09, the Defendant demanded the Non-Party Party to be present at the inspection room around 14:00 on November 10, 2012 at the Seoul Dong-dong Seoul District Prosecutors' Office 1, 326, which was designated as the main prosecutor, the Seoul Dong-dong District Prosecutors' Office 2012 and 45641, which was in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) of the Seoul Dong-dong Prosecutors' Office 201, which was designated as the main prosecutor.

From November 10, 2012, the Defendant: (a) from around 14:00 to around 326, the Prosecutorial Office of the Seoul Eastern District Prosecutor’s Office examined the Nonindicted Party into the charge of larceny; (b) the Defendant came to know that the Nonindicted Party was sentenced to punishment in the course of the investigation; and (c) the Defendant came to know that the Nonindicted Party was the Defendant’s wife, who prepared the written statement at around 18:00; and (d) when the physical contact with the Nonindicted Party, who prepared the written statement at around 18:00, continued to be similar to the Nonindicted Party’s wife, etc., and transferred it to the Prosecutorial Office attached to the Seoul East East East District Prosecutor’s Office 326.

As above, the Defendant received a bribe in relation to his duties by engaging in a similar act with the Nonindicted Party, who called the Defendant’s wife, and by engaging in sexual intercourse with the Nonindicted Party.

2. Acceptance of bribe on November 12, 2012

On November 12, 2012, at around 20:16, the Defendant: (a) moved the Nonindicted Party (vehicle number omitted) who was waiting for himself in front of the subway No. 2 Station of the subway No. 2 in Gwangjin-gu, Seoul Special Metropolitan City, to the SM5 car (vehicle number omitted) operated by the Defendant, and then moved to the king direction, the Defendant, within the said car, made a similar act with the Nonindicted Party, who called the Defendant’s wife, etc. as to the said case; (b) thereafter, proposed the Nonindicted Party to go to the ○○, located in Seongdong-gu, Seoul ( Address omitted); and (c) moved the Nonindicted Party and the subway No. 207, near the 20:41 on the same day, the Defendant conspiredd the said her two times with the said Nonindicted Party and the two times.

As above, the Defendant received a bribe in relation to his duties by engaging in a similar act with the Nonindicted Party, who called the Defendant’s wife, and by engaging in sexual intercourse with the Nonindicted Party.

1. Partial statement of the defendant;

1. Each entry in the Nonindicted Party’s interview records, recording recording, recording book (the Defendant’s summons call, the Seoul Eastern Prosecutor’s Office and the office of duty on November 10, the inspection room-B- the inspection room on November 10, the inspection room-B-B, the inspection room on November 10, the inspection room on November 10, the inspection room-III, the investigation report on November 12, the file filing of the improved Nonindicted Party’s sound recording file, the report on the file filing of the Nonindicted Party’s sound recording file, the report on the file filing of the Nonindicted Party’s sound recording file, the production of the CD filed by the Nonindicted Party)

1. Each investigation report (the report on the filing of photographs by the inspection room of the Seoul Eastern site, 326 on duty, the verification of the position of the inspection room of the king 00 ○○○○○MoMoMoMoMoel, the printing out of video-recordings, the moving distance and time verification, the report on additional analysis of CCTV in the Seoul East site, the arrangement of the contents of the defendant's cell phone analysis, etc.), a summary of the arrangement of three floors in the Seoul Eastern site, a summary of each of the related photographs, and the notification

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 129(1) of each Criminal Code (the act of similarity and bribery caused by sexual intercourses around November 10, 2012, the act of similarity and bribery caused by sexual intercourses around November 12, 2012, the act of bribery caused by similar intercourses around November 12, 2012 and the act of bribery caused by twice sexual intercourses, each of them is covered by each of them), and each choice of imprisonment

1. Aggravation for concurrent crimes;

The former part of Article 37 and Article 38(1)2 of the Criminal Act (the heavy penalty for concurrent crimes stipulated in the crime of acceptance of bribe on November 10, 2012)

1. Summary of the defendant and his defense counsel's assertion

A. As a matter of the interpretation of the current Criminal Code, “Bribery” is based on the premise that the “value” can be calculated with the character of “money and valuables” and thus, the provider of a bribe itself cannot be deemed to be the “brain” of itself as the counter-party to a sexual act, and the punishment for this constitutes an analogical interpretation contrary to the principle of no punishment without law.

B. The Nonindicted Party did not request the Defendant to take prior action, but rather asked the Defendant about the procedure for handling the instant case and the degree of punishment, and the Defendant also notified the Defendant of the ordinary direction and degree of punishment for the larceny case, and clearly notified him/her of the fact that he/she does not have the final authority to deal with the theft case. The Defendant was sexually harshs from the Nonindicted Party, lost the right to manage the theft case, and was sexually sexually sexually sexually and lost the right to control, and was sexually sexually sexually sexually sexually sexually sexually sexually sexually and the Nonindicted Party. Therefore, the relationship between the Defendant and the Nonindicted Party cannot be acknowledged

2. Determination on whether a “sexual act” itself constitutes a bribe

In light of the following points, it is judged that the bribe provider's own act as the counter-party to the sexual act, namely, providing sexual interest through sexual intercourse or similar intercourse can be the object of the bribery.

Benefits which are the contents of a bribe include not only money, goods, and other property interests, but also all tangible and intangible profits sufficient to meet human demand and desire (see Supreme Court Decisions 2000Do4714, Jan. 5, 2001; 200Do5438, Sept. 18, 2001; 2000Do2251, May 10, 2002). Thus, it cannot be deemed that a bribe is limited to those having economic value or which can be converted into monetary profits.

In addition, a bribe does not necessarily require a tangible type of bribe. Inasmuch as it is evident that the same-type interest as entertainment constitutes “Bribery,” construing “sexual act,” which is an intangible benefit, as well as “Bribery,” does not seem to exceed the ordinary meaning of the legal text, and is consistent with the legal interest and purpose of the crime of bribery. Therefore, the interpretation that includes sexual act in the concept of bribery, which is prohibited by the principle of no punishment without law, does not constitute an analogical interpretation or expanded interpretation.

Article 134 of the Criminal Act provides for necessary confiscation or collection of money and valuables to be received a bribe or bribe. However, the purport of the above provision is to deprive a criminal of the pertinent property acquired by the criminal and prevent the criminal from possessing unlawful profits. As such, the provision provides for the addition of the punishment for confiscation or collection, and is not a provision concerning the elements for the crime of bribery, such as the concept of a bribe or the scope of its establishment. Accordingly, the defense counsel’s assertion that the scope of a bribe should be restricted based on the above provision is inconsistent with the structure of a penal provision that separates the elements of a crime and punishment, and thus cannot be accepted.

3. Determination on business relationship and consideration

A. Relevant legal principles

Since the legal interest of bribery is the process of performing duties and the public trust in society, the crime of acceptance of bribe is established when the amount of money received from a public official’s duties and the public official’s performance of duties is in a quid pro quo relationship, and there is no need to consider the existence of a solicitation and the quid pro quo relationship, and there is no need to specify the act of performance of duties. Meanwhile, in the case of bribery, the act of a public official’s duties includes not only the duties under the law, but also the duties closely related to the duties under the law, the duties under the custom or de facto jurisdiction, the duties under the custom or the decision-making authority, and the duties that assist or affect the decision-making authority (see Supreme Court Decisions 2001Do3579, Oct. 12, 201; 2010Do13584, Dec. 23, 2010, etc.).

Furthermore, the determination of whether a certain profit received by a public official constitutes a bribe as an unfair profit in a quid pro quo relationship shall be made by taking into account all the circumstances such as the content of the relevant public official’s official duties, relationship with a provider of benefits, whether there exists a special relationship between both parties, the degree of interest and the circumstance and timing of receiving benefits, etc. In light of the fact that the crime of bribery is the fairness of performing his duties and the social trust and the possibility of the purchase of an act of performing his duties, the issue of whether a public official’s receipt of such benefit is suspected of being fair in performing his duties from the general public is also the criteria for the determination of whether a crime of bribery is made (see, e.g., Supreme Court Decisions 9Do4940, Jan. 21, 200; 201Do1797, Mar. 24, 2011).

B. Determination

Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, it is sufficient to recognize the duty relevance and consideration for the defendant who is the public prosecutor's sexual intercourse with the non-indicted suspect, and the assertion of the defendant and the defense counsel disputing this is without merit.

① A prosecutor, as a representative of public interest, has duties and authority over criminal investigations, institution and maintenance of public prosecution, and exercise of penal authority by the State (Article 4(1)1 of the Public Prosecutor’s Office Act). The Defendant, as the principal prosecutor of the above habitual larceny case against the Nonindicted Party, has direct and comprehensive authority over the investigation of the instant case, and was in the position to first determine the direction of the handling of the case, and thus, is recognized as highly related to duties.

② Around November 10, 2012, the Defendant first met the Nonindicted Party on the basis of the relation between the principal prosecutor and the suspect, and even around November 12, 2012 after this frame, the Nonindicted Party requested consultation as a matter of the agreement on the larceny case, and thereafter there was no individual contact or contact thereafter. In other words, there was no other pro rata relationship as well as the relationship as the relationship between the prosecutor and the suspect.

③ While the Defendant summoned the Nonindicted Party as a suspect and investigated the Nonindicted Party, the Defendant had sexual intercourse in the prosecutor’s room and the office room, and the Nonindicted Party, who tried to find the Nonindicted Party as the prosecutor’s office due to an agreement with the Empt side, was moving to the telecom and was in a sexual intercourse. As such, the Defendant was on the part of the prosecutor at the time of the above sexual intercourse or on the extension thereof.

④ Even after having sexual intercourses with the Defendant, the Nonindicted Party asserted that Emart included the stolen article in the damaged article, and asked whether it can be dealt with in a direction favorable to himself/herself with respect to the direction to deal with the habitual larceny case, the degree of punishment, and the agreement with the victim. The Defendant informed the Nonindicted Party of the fact that he/she does so, and provided assistance, such as requesting contact to him/her at the time when there is a problem in the agreement, or ordering words to be written at the end of the written statement. In light of these points, the Defendant and the Nonindicted Party are recognized as an individual and specific consideration relationship exceeding a general and abstract consideration relationship between the Defendant and the Nonindicted Party.

⑤ Even if the Defendant was merely a probationary inspection and did not have the final approval right, or said circumstance was made to the Nonindicted Party, as long as the Nonindicted Party had a direct and comprehensive authority over the habitual larceny case as a main officer, the duty relationship and the quid pro quo is recognized.

(6) From the general perspective of society, obtaining sexual benefits from a suspect who is under investigation by a prosecutor constitutes serious damage to the fairness and non-purchase of the prosecutor’s duties, even if compared with any other cases.

④ After having sexual intercourse on November 10, 2012 and November 12, 2012, the conversation between the Defendant and the Nonindicted Party is recognized. However, this is merely a natural situation after sexual intercourse in the nature of providing sexual benefits by the donor himself/herself as the other party to the sexual act, and it cannot be deemed that the sexual relationship between the Defendant and the Nonindicted Party was achieved based on pure gender relationship. Moreover, the content of the conversation after sexual intercourse was a matter of habitual larceny against the Nonindicted Party.

8) The Defendant and his defense counsel raise an answer to the consideration nature by taking account of the circumstances in which the Nonindicted Party recorded the conversation with the Defendant from the beginning. However, according to the foregoing evidence, the Nonindicted Party, without knowing the existence or telephone number of the Defendant, was found to have recorded from the moment when the Nonindicted Party was calls from the Defendant for summons. The Nonindicted Party stated that “the Nonindicted Party recorded any circumstances deemed important by the Empt and the investigative agency,” and the Nonindicted Party made a statement on its reason that “the Nonindicted Party recorded any circumstances deemed important by the Empt and the investigative agency,” and the Nonindicted Party consistently made a statement that “the Empt conspiracy” was “consing with the Defendant.” If so, it is determined that the Nonindicted Party had a clear explanation to understand the reasons for recording the conversation with the Defendant, and the Nonindicted Party cannot be deemed to have taken into account the summons from

9 In addition, the Defendant and the defense counsel raised questions about the consideration in light of the circumstance that the Nonindicted Party alleged that the result of the case was sexual assault before the end of the case and demanded the agreement. However, as at the time when the Defendant and the Nonindicted Party had a sexual intercourse, the Nonindicted Party appeared to have an expectation for the Defendant, the prosecutor, and the Defendant expressed a specific intent to investigate the fact that the Defendant was released from the mapt, and as long as the Defendant knew that the Nonindicted Party was desired to have a sexual intercourse, the consideration in consideration cannot be deemed to be denied solely based on the above circumstances that were revealed after the sexual intercourse.

4. Determination on intent to accept a bribe

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the Defendant is sufficient to recognize the fact of sexual intercourse with the Nonindicted Party under the recognition that he/she was a quid pro quo for his/her duties. Therefore, the Defendant and the defense counsel’s assertion on this issue is without merit.

① From December 6, 2012 to November 12, 2012, the Nonindicted Party asked the Defendant on several occasions about the number of punishment and sought advice on the method of being subject to prior punishment, such as detention and suspended execution, from the time of the first conversation with the Defendant. The most of the conversations between the Defendant and the Nonindicted Party was about the handling of the larceny case by the Nonindicted Party, and the conversation irrelevant to the said larceny case by the Defendant’s personal personal information, etc. was extremely limited.

② In particular, the Nonindicted Party continuously demanded that “in addition to the Defendant’s expectation of the prior wife, the stolen articles are included in the damaged articles, and thus, they can be detained.” The Nonindicted Party consistently demanded that Embrates intentionally and intentionally depict the damage so that they would attempt to reach an agreement.” The Defendant was aware of some of the charges for any reason, and clearly what direction the Nonindicted Party want to commit an investigation.

③ The Defendant asserted that the Nonindicted Party was merely a probationary examination and was aware of the absence of substantial approval, and that the Nonindicted Party did not have any intent to accept the bribe on the ground that he did not have any intent to perform his duties in violation of the statutes and the instant processing standards. However, this can only be the circumstance that the Defendant did not have any intent to go to an illegal investigation, and the circumstance that denied the intention to accept the bribe itself is difficult.

④ Examining the contents of the conversation immediately before the Defendant made sexual contact with the Nonindicted Party, the Nonindicted Party told him/her about his/her sentence (the conversation in the office immediately before the act of similaritying around November 10, 2012) or demanded the Defendant to force him/her to investigate the fact that he/she unfairly released damaged goods (the conversation in a car on November 12, 2012). The Defendant, even though having her horses above, did not spread the sexual suspicions of the Nonindicted Party and went to a sexual relationship with him/her actively.

⑤ The Defendant, immediately after having a sexual intercourse with the Nonindicted Party, told him/her that “I am am s s am. I am am. I am am am. I am am am. I am am am. I am am am.” This clearly expresses that the Defendant was aware of the fact that I would have received sexual benefits from the suspect under investigation as a prosecutor.

1. Exclusion from application of the sentencing criteria;

The sentencing criteria for bribery define the range of balancing on the basis of the economic and economic value of the received amount. Therefore, in this case where the sexual interest that cannot be calculated is received as a bribe, it is inappropriate to apply the sentencing criteria.

2. Determination of sentence;

Although the Defendant asserts not guilty, the Defendant is in profoundly against and reply to his wrong wife. While the Defendant received sexual benefits from the Nonindicted Party, it appears that he did not have any intention to go to an unjust wife in relation to his duties. The Defendant is the first offender without a previous conviction.

However, as a representative of the public interest, a public prosecutor is a state agency with comprehensive authority over the authority of punishment of the State, and is obliged to guarantee the human rights of a suspect as the subject of an investigation under the Constitution and the Criminal Procedure Act. The above prosecutor’s status and duties have been interviewed with respect to a female suspect who is under investigation as the main prosecutor in the prosecutor’s office, and thereafter, the defendant has a relationship with a female suspect and sexual intercourse with the criminal suspect who is under investigation as the main prosecutor in the prosecutor’s office, and thereafter, the above suspect has been proposed to go through the interview and sexual intercourse. This is a serious crime that is difficult to win up in light of the prosecutor’s status and duties. Furthermore, the overall fraud of the prosecutor’s organization, including the majority of the prosecutor who is under his responsibility due to the instant crime, including the crime in question, has considerably deteriorated, and it is inevitable to impose severe punishment, considering the fairness and influence of the prosecutor’

In full view of the above circumstances, the punishment is determined as ordered.

1. Summary of the facts charged

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 to let the Nonindicted Party enter the exit of the Gu, which is not the inspection room, and let him leave the Defendant’s car, etc. to do an unobligatory act.

2. Defendant and his defense counsel’s assertion

The Nonindicted Party found the vehicle of the Defendant as one exit of the Gu calendar No. 1 and the Defendant’s vehicle was based on the Nonindicted Party’s voluntary and free will, and the Defendant did not force the Nonindicted Party to use his authority as a prosecutor or abuse his position during the above process.

3. Determination

In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “an abuse of official authority” means that a public official unlawfully exercises matters falling under general official authority and authority, namely, where a public official appears to perform an act other than legitimate authority in a formal and external manner. The criteria for determining whether an abuse of authority constitutes abuse of authority shall be 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 committed, whether the exercise of official authority satisfies the legal requirements permitted, and “when one causes another to perform an act without obligation” refers to cases where a public official causes another person to perform an act without any legal obligation (see Supreme Court Decision 2010Do1884, Jan. 27, 2012,

In light of the following circumstances acknowledged by the records of this case, the Nonindicted Party is judged to have voluntarily waited for the Defendant, and the evidence submitted by the Prosecutor alone cannot be deemed to have abused the authority of the Defendant as a prosecutor or had the Nonindicted Party do an act without any obligation.

① Around November 12, 2012, the Defendant’s call for Nonindicted Party was due to the fact that the Nonindicted Party first asked about the matter of habitual larceny in connection with the agreement.

② The Defendant was called from the Nonindicted Party for five minutes of call, and the Defendant immediately called “Isaman on the side of the exit of the Gu prior to the examination of the site so far as Isaman is expected to continue to leave.” The Nonindicted Party refused the said proposal according to his/her own will and could return to the house, but he/she saw the Defendant as the Gu’s station in response to the same proposal, even if Isaman could have rejected the proposal and return to the house.

③ The Nonindicted Party met the Defendant in front of the exit of the Gu No. 1, but “I would like to open it to the media. I would like to depart from the media that “I would go to do so if I will do so. I would like to do so. I would like to talk about I would go to do so. I would like to go to leave the vehicle, and I would like to go to go to the Defendant’s car even while I would go to leave the vehicle. I tried to go to go to the Defendant’s car, and I attempted to actively contact with him first after going to go to the vehicle.

④ The Defendant and the Nonindicted Party had already been sexual intercourses once around November 1, 2012. After this framework, the Nonindicted Party found the Defendant as above, the Defendant respondeded to the Defendant’s proposal and voluntarily listed on the Defendant’s car outside the public prosecutor’s office, and was on board the Defendant’s car. The Defendant seems to have been granted without refusing the foregoing behavior by the Nonindicted Party.

4. Conclusion

Therefore, the point of abuse of authority and obstruction of another’s exercise of rights among the facts charged in the instant case constitutes a case where there is no proof of crime, and thus, not guilty.

Judges Cho Yong-sung (Presiding Judge) Kim Jong-sung