[1] The meaning of "illegal solicitation" in the crime of accepting a third party's acceptance, and the requirement for an illegal solicitation by implied declaration of intent

[2] The standard for determining whether a public official's introduction and recommendation of a third party to a transaction party to a person related to his/her duties constitutes an act of giving unjust profits to a third party

[1] Article 130 of the Criminal Act / [2] Article 130 of the Criminal Act

[1] Supreme Court Decision 2008Do6950 Decided January 30, 2009 (Gong2009Sang, 279) Supreme Court Decision 2010Do12313 Decided April 14, 201 (Gong2011Sang, 964)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm, Kim & Lee LLC et al.

Daejeon High Court Decision 2011No100 decided October 12, 2011

The part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the Daejeon High Court. The prosecutor's appeal against Defendant 2 is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 1’s ground of appeal

A. In the crime of providing third-party bribery under Article 130 of the Criminal Act, the term “comfort” refers to an act requesting a public official to perform or not to perform a certain duty, and the term “illegal solicitation” refers to an act of requesting a public official to perform a certain duty, where the performance of a duty requested is unlawful or unreasonable, or where the performance of a duty requested is not unlawful or unreasonable, but the delivery of consideration for the performance of a duty is intended to connect the pertinent performance of a duty to a certain consideration relationship. However, in the crime of providing third-party bribery, the requirement of “the public official shall receive an illegal solicitation in connection with his/her duty” is aimed at preventing the scope of punishment from becoming unclear. Such unlawful solicitation is possible not only by an express declaration of intent, but also by an implied declaration of intent, but also requires common recognition or understanding between the public official and the benefit provided to a third party. Therefore, if a third-party request is made with a view to 2010 or a 3010-100-13330-100-100-20-314.

In addition, in a criminal trial, the acknowledgement of facts must be based on evidence, and criminal facts should be proved to the extent that there is no reasonable doubt (Article 307 of the Criminal Procedure Act). In a case where the defendant denies the facts concerning internal deliberation such as the recognition of certain circumstances, the facts constituting such subjective elements are bound to be proved by the method of proving indirect facts or circumstantial facts having considerable relevance in the nature of things given the nature of things. However, what constitutes indirect facts having considerable relevance should be determined by the method of reasonably analyzing and determining the link of facts based on normal empirical rule (see Supreme Court Decision 2012Do7377, Aug. 30, 2012, etc.).

B. The summary of the facts charged in this case is as follows: Defendant 1, a member of the Seoul Special Metropolitan City Joint Committee for Urban Construction (hereinafter “Nonindicted Company 1”) requested the representative director of Nonindicted Co. 1 Company (hereinafter “Nonindicted Co. 1”) to conclude a service contract with Nonindicted Co. 4 Co. 2 (hereinafter “Nonindicted Co. 5”) on December 1, 2007, in order for Nonindicted Co. 2 to conclude a service contract with Nonindicted Co. 2 to offer the price for the most unfair will to Nonindicted Co. 1’s construction of the urban environment improvement project (hereinafter “instant project”) under the name of Nonindicted Co. 410 million won, which was promoted by Nonindicted Co. 1 as part of the urban environment improvement project in Seoul Special Metropolitan City as part of the urban environment rearrangement project in order for Nonindicted Co. 1 to pass through the Seoul Special Metropolitan City Joint Committee for Urban Construction (hereinafter “instant project”); and Nonindicted Co. 2 to conclude a service contract with Nonindicted Co. 3’s representative director, a public official with respect to the construction of the vehicle and the project.

Based on the circumstances indicated in its reasoning, the lower court found Defendant 1 guilty of the charges on the provision of third-party brains on the ground that it was at least implicitly known that Nonindicted 2 would pay money through the service contract with Nonindicted Company 4 at the time of having Nonindicted 2 conclude a service contract with Nonindicted Company 4.

C. However, in light of the above legal principles, it is difficult to accept the judgment of the court below as it is for the following reasons.

(1) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following circumstances.

(A) Defendant 1, as a professor of traffic department at ○ University Urban Graduate School from March 2006, served as the head of the above graduate school from March 2, 2006, and was commissioned as a member of the Seoul Special Metropolitan City Urban Planning Committee on March 2, 2005, and was on March 1, 2009, as a member of the Seoul Special Metropolitan City Urban Planning Committee, and was working as a member of the Seoul Special Metropolitan City Urban Planning Committee. Meanwhile, Nonindicted 2 completed the highest course of urban development in the above graduate school from September 2, 2006 to February 2, 2007, and passed the doctorate course at the above graduate school around November 207.

(B) Around September 2005, Nonindicted Co. 1 acquired the instant business and carried out the instant business by entrusting Nonindicted Co. 5 and Nonindicted Co. 6 (hereinafter “Nonindicted Co. 6”) with design services. On May 24, 2006, Nonindicted Co. 1 passed a deliberation by the Seoul Special Metropolitan City Joint Committee for Urban Construction with the purport of constructing a complex building with an office (52.8%) sales facilities (8.4%) apartment houses (20.2%) and a hotel (18.6%). However, Nonindicted Co. 1 changed the design of the building to a business building composed of apartment houses and hotels (90.9%) and sales facilities (9.1%) on April 6, 2007, on the premise of the change of use as above, on the premise of the change of use as mentioned above, sold all of the building to Nonindicted Co. 7 (hereinafter “Nonindicted Co. 7”).

(C) On November 28, 2007, the Seoul Special Metropolitan City proposed the 24th Seoul Special Metropolitan City Joint Urban Building Committee on the urban environment improvement zone, which reflects the change of the purpose of use of the building as above, to which Nonindicted Company 1 was held. The results of the deliberation that “the measures to introduce accommodation facilities and strengthen the public openness” should be reviewed and discussed again. During the deliberation process, Defendant 1 expressed his opinion that it is necessary to maintain accommodation facilities as originally planned, to secure green space around the building, and to prepare measures to secure public accessibility to the building observation units. Of the members of the Joint Urban Building Committee, Nonindicted Party 8 (△△ University professor), Nonindicted Party 9 (the head of the ▽▽▽▽▽▽△ National Housing Research Institute) among the members of the Joint Urban Building Committee, it was difficult for Nonindicted Party 10 members (the professor of Seocho University), to abolish the residential facilities, and that Nonindicted Party 8 members, Nonindicted Party 111 members, Nonindicted Party 12 members, Nonindicted Party 13 members, and Nonindicted Party 14 expressed their opinions on the means of opening public buildings.

(D) On December 1, 2007, before receiving the phone from Nonindicted 2, Defendant 1 first mentioned Nonindicted 2 about the deliberation of the Seoul Metropolitan City Joint Committee on Urban Building with respect to the instant business or did not request Nonindicted 2 to conclude a research service contract. In addition, in the telephone conversations with Defendant 1 or the process of concluding the instant service contract, Nonindicted 2 or Nonindicted 1 was known to the fact that Nonindicted 10 members, etc. were mainly opposed to the change of designation, and there was no evidentiary material that Defendant 1 knew that he argued for the maintenance of accommodation facilities and presented a critical opinion on the change of designation.

(E) The Seoul Special Metropolitan City was held on December 26, 2007, the 27th Urban Building Joint Committee of Seoul Special Metropolitan City for the 24th Urban Planning (Seoul Special Metropolitan City) revised the urban environment improvement zone. In relation to the plan to strengthen the public openness of buildings, the members were almost reflected in the opinion presented at the 24th meeting, but it was reasonable not to introduce accommodation facilities on the ground that it is necessary to foster the relevant area as a business-centered area and there is no special benefit to the relevant enterprise on the condition of installing accommodation facilities. The result of the deliberation was that the designation of the urban environment improvement zone of Seoul Special Metropolitan City was passed on the condition that some of the expected openingness, etc. were supplemented, and the 9 members, etc., who were alleged to require the introduction of accommodation facilities at the 24th meeting, could not be forced to introduce accommodation facilities after hearing the explanation of the above Seoul Special Metropolitan City's agenda and forced the introduction of accommodation facilities. Meanwhile, Defendant 1 and Nonindicted 8 members, etc., who were expressed in the 24th meeting, did not attend the next meeting.

(2) Nonindicted 2’s statement is made in the investigative agency and the court, which is directly admissible as to the facts charged in the instant case. Even according to the reasoning of the judgment below, it is difficult to conclude that the statement made by Nonindicted 2 was made by Nonindicted 2 to the effect that “The Seoul Special Metropolitan City Joint Committee for Urban Construction did not request Defendant 1 to accurately point out the matters concerning the deliberation of the Seoul Special Metropolitan City Joint Committee for Urban Construction, but it was deemed that Defendant 1 had talked to the extent that Defendant 1 could be identified, and that there was no specific expression that Defendant 1 would be paid research expenses in return.”

Furthermore, as seen earlier, Defendant 1 first mentioned Nonindicted 2 on the deliberation of the Seoul Special Metropolitan City Joint Committee on Urban Building or the conclusion of research service contracts, and Nonindicted 2 at the time of telephone conversations cannot be deemed to have known the fact that Defendant 1 opposed to or critically presented the instant change of designation on the instant project at the 24th meeting, and the division of Defendant 1 and Nonindicted 2’s opinions regarding the instant service contract by one-time means that the said telephone conversation was entirely and directly interviewed and did not have been made. In view of the fact that Nonindicted 2 requested by Nonindicted 2 at the time of telephone conversation, it is not likely that Defendant 1 received it as a specific performance of duties.

(3) In light of the fact that Nonindicted Co. 1’s instant agenda related to the instant project had been pending in the Seoul Special Metropolitan City Joint Committee for Urban Construction at the time, and Defendant 1 was aware of it, Defendant 1 recognized that Nonindicted Co. 2’s proposal on the conclusion of Nonindicted Co. 2’s service contract was the purport that he would offer the price for solicitation regarding duties as soon as possible. Nevertheless, the lower court held that Nonindicted Co. 3’s act of introducing and recommending Nonindicted Co. 4, the representative director of which was Nonindicted Co. 3, as a party to the service contract, could be deemed to have accepted Nonindicted Co. 2’

(A) However, the mere fact that a public official introduced and recommended a person related to his/her duties to a third party is not sufficient to readily conclude that the act immediately constitutes an act of granting a third party the unjust benefits of his/her duties to a third party. The issue should be determined by comprehensively taking into account all the circumstances, such as the circumstances leading to the introduction and recommendation by the public official, the details of the benefits that the public official gains through the introduction and recommendation, the degree of awareness of the public official, the public official's expectation of the benefits related to the introduction and recommendation, the details of the public official's act of performing his/her duties after introduction

(B) According to the above facts, the reasoning of the lower judgment, and the record, Defendant 1’s introduction and recommendation of the instant case can be seen as follows.

① Even according to the reasoning of the lower judgment, Defendant 1 introduced and recommended Nonindicted Co. 4 as a service company upon Nonindicted Co. 2’s phone. Defendant 1 does not first demand that Nonindicted Co. 4 enter into a service agreement with Nonindicted Co. 4. In addition, in light of the contents of Nonindicted Co. 2’s statement and circumstances related to telephone communications as seen earlier, it is not highly likely that Nonindicted Co. 2 would have emphasized that it was related to the deliberation of the Seoul Special Metropolitan City Joint Committee on Urban Building, or intended to provide research funds and other benefits through a service agreement.

② A person who introduces and recommends another person’s trade partner upon request shall act on the premise that the transaction would normally be concluded and performed. Thus, unless there is any evidence to view otherwise in this case, it is reasonable to deem that Defendant 1 would actually provide services equivalent to the service cost, and that Defendant 2 introduced and recommended Nonindicted Company 4 to Nonindicted Company 2. Therefore, Defendant 1’s profits recognized that Defendant 1 would have obtained through his own introduction and recommendation are, in principle, an opportunity to enter into such service contract. Such profits do not seem to be to have clearly perceived the illegality of the act of providing them only with the content and amount thereof.

Although the prosecutor asserts that the instant service contract is merely a formal contract concluded in the manner of providing money and goods to Nonindicted Co. 4, it is difficult to readily conclude that the instant service contract is merely a formal contract in light of the fact that Nonindicted Co. 4 prepared and submitted a report that could serve as a reference in the part of Nonindicted Co. 1 after the instant service contract, etc. Even if the instant service contract was in the form of formality, it cannot be said that Defendant 1 was aware of such circumstances that he introduced and recommended Nonindicted Co. 4 to Nonindicted Co. 2 as the other party to the service contract, and thus, it cannot be said that Defendant 1 was aware that Nonindicted Co. 4 was aware that he was to acquire all KRW 10 million of the service price without compensation, not only in obtaining an opportunity to conclude the service contract through his introduction and recommendation.

③ It was not revealed that Defendant 1 obtained, or expected to obtain, certain benefits from the conclusion of the instant service agreement, and that Defendant 1 introduced and recommended Nonindicted Company 4 to Nonindicted Company 2, and Defendant 1 did not appear to have been involved in the instant service agreement in addition to introducing and recommending Nonindicted Company 4 in telephone conversations with Nonindicted Party 2.

④ Defendant 1 may not be deemed to have committed any unfair act in performing his duties as a member of the Seoul Special Metropolitan City Urban Building Joint Committee after the introduction and recommendation.

With respect to the failure of Defendant 1 to participate in the Seoul Special Metropolitan City Joint Committee on Urban Construction, the prosecutor argues that he presented critical opinions on the agenda and without any special circumstances, thereby blocking external doubts about the change of opinion and facilitating the deliberation of the agenda item. However, as seen above, Nonindicted 8 members who asserted with Defendant 1 in the 24th meeting to maintain accommodation facilities and expressed critical opinions on the change of the designation, are not present at the 27th meeting. The Seoul Special Metropolitan City has maintained the previous position that it is reasonable to not introduce accommodation facilities, and supplement several reasons while again presenting the agenda item to the 27th meeting. Accordingly, Nonindicted 9 members, etc. who argued to introduce accommodation facilities at the 24th meeting. And even according to the reasoning of the judgment of the court below, it cannot be concluded that Defendant 1 was not present at the 29th meeting of the Seoul Special Metropolitan City Joint Urban Construction Committee in 2007 and Defendant 1 was not present at the 27th meeting as above.

⑤ From September 2, 2006 to February 2, 2007, Nonindicted Party 2 completed the urban development completion course at the ○○ University Urban Graduate School, which was held by Defendant 1 as the president, and Defendant 1 was known to a certain extent, such as passing a doctorate course at the end of November 2007, immediately before telephone conversations, and passing the doctorate course at the above graduate school around November 2007.

(C) Comprehensively taking into account the aforementioned circumstances, even if considering that the instant agenda was pending in the course of deliberation, it is difficult to deem that Defendant 1 introduced and recommended Nonindicted 2 to the other party to the conclusion of the service contract, in return for the unfair performance of duties as a member of the Seoul Special Metropolitan City Joint Committee for Urban Construction upon the request related to deliberation received by Nonindicted 2.

(4) Other circumstances revealed by the court below are merely a vague expectation that Defendant 1 will be in favor of the above defendant 1, and the defendant 2 asked the above defendant to introduce and recommend the counterpart to the instant service contract. However, even though it is aware that the defendant 1 solicits that "the defendant 2 would be in favor of the Seoul Special Metropolitan City Joint Committee for Urban Construction without the introduction of accommodation facilities," it cannot be deemed that the charges of having the non-indicted 2 granted unjust profits related to the non-indicted 4's duties to the service contract by introducing and recommending the non-indicted 4 company as the counter-party to the service contract, in consideration of the unfair performance of duties, are proven to the extent that there is no reasonable doubt.

Nevertheless, the lower court found the Defendant guilty solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a third-party brain supply crime, thereby adversely affecting the conclusion of the judgment. Therefore, there is a justifiable ground for appeal assigning this error.

2. As to the Prosecutor’s ground of appeal on Defendant 2

Examining the reasoning of the judgment below in light of the evidence duly admitted, the court below is just in holding that Defendant 2 received bribe in relation to the duties of members of the Seoul Special Metropolitan City Urban Planning Committee or received bribe in relation to the referral of matters belonging to the duties of members of the Seoul Special Metropolitan City Urban Planning Committee by taking advantage of their position and received bribe in relation to the duties of members of the Seoul Special Metropolitan City Urban Planning Committee on the grounds stated in its reasoning, and it did not err in the misapprehension of legal principles as to job relevance in bribery or in the misapprehension of the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

Therefore, without examining the remainder of Defendant 1’s remaining grounds of appeal, the part on Defendant 1 among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal against Defendant 2 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)