[1] Job relationship and bribe in the crime of bribery

[2] The case holding that the defendant, who received money from the subordinate staff with a promotion request and returned later, had an intention to receive such money as a bribe in light of all the circumstances

[3] In the case where two crimes are sentenced to imprisonment with prison labor by a single judgment for two crimes before and after the final judgment, whether the suspension of execution can be sentenced only to imprisonment with prison labor (affirmative)

[1] The legal interest of the crime of bribery is the fairness of the performance of duties by a public official, the trust in the society, and the non-purchase of the act of performing duties, and there is no need to make a special solicitation to recognize the bribe of the received money and valuables since it does not require any solicitation or unlawful act. Moreover, when a public official receives money and valuables or other benefits from a person subject to his duties, it is sufficient that the money and valuables were received in connection with his duties, and there is no need to be an individual act or a quid pro quo relationship, and when the public official receives money and valuables or other benefits from the 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 need for decentralization in personal friendly relations. If a public official received money and valuables in connection with his duties, the received money and valuables shall be deemed a bribe even if they were received in accordance with the form of

[2] The case holding that the defendant had an intention to receive the money as a bribe in light of the following: (a) the defendant received the money from the subordinate staff with the request for promotion; (b) the defendant did not return the money at any time despite the opportunity to return it; and (c) returned the money to the subordinate staff who could not accept the request six months after the use of the money.

[3] In the case of two concurrent crimes under the latter part of Article 37 of the Criminal Code, where two sentences of imprisonment are sentenced by a single judgment for two concurrent crimes, their two sentences of imprisonment are separate sentences. Thus, if the requirements for the suspension of execution under Article 62 (1) of the Criminal Code are satisfied, the suspension of execution may be sentenced for each sentence of imprisonment, and the suspension of the execution of the other imprisonment with prison labor shall be allowed as long as there is no express provision prohibiting such a measure under the Criminal Code of Korea.

[1] Article 129(1) of the Criminal Act / [2] Article 129(1) of the Criminal Act, Article 2 of the Aggravated Punishment, etc. of Specific Crimes / [3] Articles 37 and 62(1) of the Criminal Act

[1] Supreme Court Decision 94Do1017 delivered on June 30, 1995 (Gong1995Ha, 2681), Supreme Court Decision 95Do1269 delivered on September 5, 1995 (Gong1995Ha, 3458), Supreme Court Decision 96Do865 delivered on June 14, 1996 (Gong196Ha, 2286), Supreme Court Decision 96Do378 delivered on April 17, 1997 (Gong197Sang, 1368), Supreme Court Decision 97Do2609 delivered on December 26, 199 (Gong198Sang, 475), Supreme Court Decision 97Do3989 delivered on December 10, 199, 209 (Gong1998Sang, 475), Supreme Court Decision 97Do3989 delivered on September 29, 1998)

Defendant

Defendant and Prosecutor

Attorneys Kim Yong-chul et al.

Daegu High Court Decision 2001No152 delivered on June 19, 2001

All of the prosecutor's appeals and defendant's appeals are dismissed.

1. Summary of the judgment of the court below

The court below issued 300,000 won in cash with Nonindicted Party 1's request for transfer from Nonindicted Party 1 to 2's office in October, 1996 (2) around April 1998, upon receipt of KRW 50,000 won in cash with Nonindicted Party 2's request for promotion of officials from the office of collection, and 30,000 won in total, including KRW 50,00 won in cash and KRW 25,000 in cash. (3) On February 200, the court below found the Defendant guilty of the above facts that the Defendant received 1's cash transfer from Nonindicted Party 2's office in accordance with the latter part of 1's 1's 2's 2's 2's 1's 1's 1's '6' '6' '6' '2' '6' '6' ' '2' '6' '6' ' '6' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '6' ' ' ' ' ' ' ' ' ' ' '6' ' ' ' ' ' ' ' '.

2. Judgment on the Defendant’s grounds of appeal

The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the uncertainty of the act of performing his duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of money and valuables received, it is sufficient that money and valuables have been received in connection with his duties, and there is no need to have an individual job 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 is deemed that it is merely an exceptional consideration in light of social norms, or it is not related to his duties unless there are special circumstances, such as where it is clearly recognized that a private pro rata relation is due to the need for decentralization. If a public official received money and valuables in connection with his duties, even if he received them, such money and valuables are given and received (see, e.g., Supreme Court Decision 9Do4940, Jan. 21, 200).

Examining the relevant evidence in light of the records, the judgment of the court below is just in finding the facts. On the other hand, considering the contents of the defendant's duties concerning personnel affairs as the head of the Gun, relationship with the defendant and his subordinate employees, the contents of his personnel solicitation, the time when the defendant received money from him, the time when he received money from him is in front of a personnel order, the defendant transferred the money to the Gun office with his consent, the promotion ranking is neglected, and the defendant promoted as desired by the non-indicted 1 and 3, all of his money received from him are recognized as a bribe (it is recognized that the money received from the non-indicted 1 was only KRW 500,00 and the money received from the non-indicted 1 was only KRW 50,000,000,000,000 won, and the court below's judgment that the defendant did not return money from the non-indicted 2 to the non-indicted 30,000,000 won as the defendant's official or the non-indicted 2, who did not return money at any time.

3. Judgment on the grounds of appeal by the prosecutor

Where two sentences are sentenced by a single judgment for two concurrent crimes under the latter part of Article 37 of the Criminal Act, the two sentences are different for each one, and if the requirements for the suspension of execution under Article 62 (1) of the Criminal Act are satisfied, the suspension of execution may be sentenced for each one. In addition, the suspension of execution for one imprisonment among the two imprisonments shall be allowed unless there is a express provision prohibiting the suspension of execution for other imprisonment under the Criminal Act. In the same regard, the court below's decision that sentenced the suspension of execution for other imprisonment with prison labor is legitimate while sentencing one imprisonment with prison labor is lawful, and there is no violation of law by misunderstanding the legal principles as to the suspension of execution.

4. Therefore, all of the Prosecutor’s appeals and Defendant’s appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)