[1] In a case where the crime of acceptance of a bribe, which is a single comprehensive crime, was committed over the period before and after the enforcement of Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, the scope of the amount of the acceptance of a bribe, which serves as the basis for

[2] In a case where: (a) the Defendant received a bribe of KRW 16.1 million on or before December 26, 2008, which was the enforcement date of Article 2(2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes; (b) the Defendant received a bribe of KRW 10,000,000 on nine occasions on or after nine occasions; (c) each of the above crimes was in a single comprehensive crime; and (d) the bribe received after the enforcement of the above provision was in a single comprehensive crime; and (e) the Defendant received a bribe of KRW 4.5 million on or after the enforcement date of the above provision, the case holding that the lower court erred by misapprehending the legal principles, even though the maximum amount of fines to be imposed concurrently on the Defendant was within the scope of aggravated punishment for each of the crimes of acceptance of bribe of KRW 32,500,000,000 for more than three

[1] Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9169 of Dec. 26, 2008) provides that “any person who commits a crime as prescribed in Article 129, 130, or 132 of the Criminal Act (including the case of paragraph (1)) shall be concurrently punished by a fine of not less than two times but not more than five times the amount of the accepted acceptance of a bribe in the punishment prescribed for the crime (including the case of paragraph (1)).” In light of Article 13(1) of the Constitution of the Republic of Korea and Article 1(1) of the Criminal Act, “the establishment and punishment of a crime shall be governed by the Act when the crime of bribery, which is a single comprehensive crime, was committed throughout the period before and after the enforcement of the said new provision, the amount of fine provided for in Article 2(2) of the Aggravated Punishment, etc. of Specific Crimes shall be limited to the amount of the accepted acceptance of a bribe.

[2] In a case where: (a) the Defendant received a bribe of KRW 16.1 million on or before December 26, 2008 from the date of entry into force of Article 2(2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “former Aggravated Punishment Act”); (b) on or after nine occasions, the Defendant received a bribe of KRW 16.1 million on or after nine occasions; and (c) each of the above crimes was related to a single comprehensive crime; and (d) the bribe received after the enforcement of the above provision was 4.5 million won on or after the total amount of KRW 2 million on or after the date of the above provision, the case holding that the lower court erred by misapprehending the legal principles on the A’s maximum amount of fines and KRW 2.5 million on the crime of acceptance x 3 million on or after December 26, 2008 (i) concurrent crimes related to the A’s maximum amount of fines (i.5 million won)

[1] Article 13(1) of the Constitution of the Republic of Korea; Articles 1(1), 129, 130, and 132 of the Criminal Act; Article 2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9169, Dec. 26, 2008); Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 13(1) of the Constitution of the Republic of Korea; Articles 1(1) and 129(1) of the Criminal Act; Article 2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 9169, Dec. 26, 2008); Article 2(2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)

[1] Supreme Court en banc Decision 86Do1012 Decided July 22, 1986 (Gong1986, 1153), Supreme Court Decision 93Do1166 Decided October 28, 1994 (Gong1994Ha, 3168), Supreme Court Decision 97Do183 Decided February 24, 1998 (Gong198Sang, 937), Supreme Court Decision 2004Do8651 Decided March 24, 2005 (Gong2005Sang, 693), Supreme Court Decision 2010Do7954 Decided October 14, 2010

Defendant

Defendant

Law Firm Bull et al.

High Court for Armed Forces Decision 2010No247 Decided March 29, 201

The part of the judgment of the court below regarding acceptance of bribe from Nonindicted 1, 2, and 3 shall be reversed, and that part of the case shall be remanded to the High Military Court.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 through 3

Since the legal interest of the crime of bribery is the process of performing duties and the public trust in the 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 a quid pro quo relationship, and there is no need to consider the existence of 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 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 96Do378, Apr. 17, 1997; 2010Do13584, Dec. 23, 2010, etc.).

The lower court acknowledged the facts as indicated in its reasoning based on the employed evidence, and determined that according to its findings, the Defendant, who was engaged in the work related to the construction of a military unit, constituted a bribe received as a public official, not a loan, but a total of KRW 16.1 million, which was received nine times from Nonindicted 1, the representative of the company that supplied heating, cooling, and boiler to his military units, and a total of KRW 10 million, which was received four times from Nonindicted 2, the director of the company that supplied the installation service of electric facilities, and a total of KRW 4 million, which was received two times from Nonindicted 3, the representative of the company that supplied the water purification equipment.

In light of the above legal principles and records, the judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as to the bribery, as alleged in the grounds of appeal.

2. As to the fourth ground for appeal

A. In the case of the crime of acceptance of bribe, where the same kind of crime is repeatedly committed under the single and continuous criminal intent for a certain period and the legal interest of the damage is the same, each of the crimes shall be deemed a single comprehensive crime (see Supreme Court Decisions 90Do1588, Sept. 25, 1990; 2004Do42, Nov. 10, 2005, etc.).

In light of the above legal principles and records, the court below is just in holding that the crime of bribery from the above non-indicted 1, 2, and 3 of the defendant constitutes a single comprehensive crime, and there is no violation of the rules of evidence or misapprehension of legal principles as to a single comprehensive crime, as otherwise alleged in the

B. Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) amended by Act No. 9169 of Dec. 26, 2008 provides that “a person who commits a crime as prescribed in Article 129, 130, or 132 of the Criminal Act shall be concurrently punished by a fine not less than two times but not more than five times the amount of the accepted bribery (including a case as prescribed in paragraph (1))” and Article 13(1) of the Criminal Act provides that “When the crime of bribery, which is a single comprehensive crime, was committed over before and after the enforcement of the aforementioned new provision, is concurrently punished by a fine not exceeding the previous provision on the crime of acceptance of bribe.” In light of Article 13(1) of the Constitution of the Republic of Korea and Article 1(1) of the Criminal Act, if the crime of bribery, which is a single comprehensive crime, was committed over time after the enforcement of the aforementioned new provision, the amount of the accepted bribe shall be limited to the amount of fine of 20.

According to the reasoning of the judgment of the court below, the amount that the defendant received as a bribe after December 26, 2008, which was the enforcement date of the above new provision, may be known to the fact that the defendant was merely a total of KRW 4.5 million in the case of Non-Indicted 1, and KRW 2.5 million in the case of Non-Indicted 2, which is a total of KRW 2.5 million in the case of Non-Indicted 1. Accordingly, the maximum amount of the fine that the defendant may be concurrently imposed on the defendant pursuant to the above new provision shall be KRW 2.5 million in the case of Non-Indicted 1 (=4.5 million in the case of x 5 million in the case of Non-Indicted 1) and KRW 10 million in the upper limit of the fine for the crime of acceptance of bribe from Non-Indicted 2, which

Nevertheless, the lower court concurrently imposed a fine of KRW 35 million on the Defendant in excess of the above maximum limit. In so doing, the lower court erred by misapprehending the legal doctrine on Article 2(2) of the Aggravated Punishment Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, among the judgment below, the part on acceptance of bribe from Nonindicted 1 and 2 (including the part on acquittal of the reason) cannot be reversed, and the part on acceptance of bribe from Nonindicted 3 is also reversed on the ground that the aforementioned part on acceptance of bribe from Nonindicted 3 is concurrently related to the crime that is destroyed as above and the crime under the former part of Article 37 of the Criminal Act

3. Conclusion

Therefore, among the judgment below, the part concerning the acceptance of bribe from Nonindicted 1, 2, and 3 (including the part concerning innocence) is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)