[1] In a case where a public official received money, valuables, or other benefits from a person subject to his/her duties, whether it is related to his/her duties (affirmative in principle)

[2] Whether strict proof is required to acknowledge the criminal intent of the crime of acceptance of bribe (affirmative)

[1] Article 129(1) of the Criminal Act / [2] Articles 13 and 129(1) of the Criminal Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do6721 Decided July 26, 2002 (Gong2002Ha, 2142), Supreme Court Decision 2016Do15470 Decided January 12, 2017 (Gong2017Sang, 427) / [2] Supreme Court Decision 2004Do7359 Decided January 28, 2005, Supreme Court Decision 2015Do18070 Decided February 18, 2016

Defendant

Defendant and Prosecutor

Attorney Park Ho-sung et al.

Seoul High Court Decision 2017No346 decided July 6, 2017

Of the lower judgment in 2014, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) around February 2015, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) around October 27, 2015, and the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) concerning bribery and the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) shall be reversed and remanded to the Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have found the Defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes among the facts charged in the instant case on or around February 2015. In so doing, contrary to what is alleged in the Defendant’s grounds of appeal, the lower court did not exhaust all necessary deliberations, but did not err by exceeding the bounds of

Meanwhile, the lower court’s assertion that there was a violation of the principle of trial on evidence, the violation of the rules of evidence, and the presumption of innocence with respect to the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) in the first half of the year 2014 is alleged in the ground of appeal by the Defendant, or the lower court did not consider it as being subject to ex officio, and thus, does not constitute a legitimate ground of appeal.

In addition, the argument that the lower court’s determination of sentencing erred by incomplete deliberation on basic facts for sentencing constitutes an allegation of unfair sentencing. However, according to Article 383 Subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. As such, in this case where the lower court rendered a more minor sentence against the Defendant, the argument that the sentencing of

2. As to the Prosecutor’s ground of appeal

A. The part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

For the reasons indicated in its holding, the lower court acquitted the Defendant of this part of the facts charged on the ground that there is insufficient evidence to acknowledge that the Defendant received money and the said vehicle in relation to the Defendant’s duties, such as making goods that imitated the handbel of Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) by Nonindicted Co. 2, Ltd. (hereinafter “Nonindicted Co. 2”) in return for soliciting solicitation in connection with the collection money lawsuit from Nonindicted Co. 1.

In light of the records, the lower court did not err in its judgment by misapprehending the principle of court-oriented trial and substantial direct examination or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes

B. The part on the acceptance of bribe on October 27, 2015

1) If a public official received money, valuables, or other benefits from a person subject to his duties from the person who received such money, valuables, or other benefits, it is deemed that there is a relationship with his duties, barring any special circumstance, such as where it is merely an exceptional payment in light of the social norms, or where it is obviously recognized that there is an individual-friendly relationship with a public official, and where it is obviously recognized that there is a need for school expenses. If a public official received money and other valuables in relation to his duties, even if he received money and other valuables in relation to a public official’s duties, such received money and other valuables shall constitute a bribe (see, e.g., Supreme Court Decisions 2001Do6721, Jul. 26, 2002; 2016Do15470, Jan. 12, 2017). Meanwhile, if it is acknowledged that a public official received money and other valuables in relation to a public official’s duties in the crime of acceptance of bribe, there is a strict proof of 10.

2) According to the evidence duly admitted by the lower court, the following facts are revealed.

A) Nonindicted 1 is the representative director of Nonindicted Company 2 and Nonindicted 3 was the vice president. However, Nonindicted 1 requested the ○○ Provincial Police Agency to investigate, around December 2014, as fake goods which imitated the instant company’s representative goods, were distributed in bulk to China, etc., causing losses.

B) At that time, Nonindicted Party 1 asked the Defendant, who was in office as the chief judge of the ○○ District Court, to the effect that Nonindicted Company 2 suffered a large loss from a fake product, and that Nonindicted Company 1 should punish a person who manufactures and sells a fake diesel (hereinafter “scambling criminal”). Nonindicted 3 also asked the Defendant and Nonindicted 4, who had a relationship with Nonindicted Party 1, to deliver the criminal with the Defendant and Nonindicted 1, to the Defendant for strict punishment.

C) After that, on August 13, 2015, the presiding judge of the appellate court in charge of the instant case against Nonindicted 5, 6, and 7 (hereinafter “Nonindicted 5, etc.”) who was a forged criminal, summoned Nonindicted 3 as witness on behalf of the victim Nonindicted 2 company’s position on the part of the presiding judge in charge of the instant case, including violation of the Trademark Act against Nonindicted 5, 6, and 7 (hereinafter “Nonindicted 5, etc.”), and at the time, Nonindicted 3 testified that Nonindicted 5, etc. were harshly punished by the

D) On September 10, 2015, the Defendant sentenced the appellate judgment on the case against Nonindicted 5, etc. on the other hand, while the appellate trial on the other two fakes was also entrusted to the appellate trial on the other two counterfeits. On October 6, 2015, when Nonindicted 1 was habitually detained on the suspicion of habitual gambling that Nonindicted 1 had habitually engaged in high leveling in a foreign country, Nonindicted 3 met the Defendant, Nonindicted 4 met at “△△△ City” located in Gangnam-gu Seoul (hereinafter omitted) on October 27, 2015, and when the meeting is completed, Nonindicted 3 prepared for the Defendant through Nonindicted 4 through Nonindicted 4 in advance as stated in this part of the facts charged.

3) We examine the above facts in light of the legal principles as seen earlier.

At the time of receiving the above money from Nonindicted 3, the Defendant, while serving as the chief judge of the district court, was the presiding judge of the appellate court in a criminal trial against the forged criminal, and was tried at two trials on recommendations against the other forged criminal. Furthermore, the Defendant tried to hear the testimony to the same effect by questioning Nonindicted 3 on behalf of the victim, who was present on behalf of the victim, before the trial was held by the appellate court.

On the other hand, it is reasonable to view that the Defendant, a judge, received money from Nonindicted 3 as the victim of each case related to each trial after completing a trial belonging to his duties and conducting different trials, barring any special circumstance, is not related to his duties, and that the Defendant was aware of the fact that it was a consideration for his duties at the time of the receipt of the money. Even if the primary reason for Nonindicted 3’s granting of money to the Defendant was to invite another public official’s referral of duties for the trial of Nonindicted 1 who was habitually prosecuted around that time, or Nonindicted 1’s receiving of money was not an urgent pending issue, and even if Nonindicted 3 did not specifically specify the above money for the Defendant, in light of the process and time of the receipt of money, the horses and actions of the persons related before and after the receipt of the money, etc., the above money was delivered solely for the habitual gambling of Nonindicted 1, rather than for the said habitual gambling, it is sufficient to deem that the Defendant was in charge of the Defendant’s statement or its relevance to his duties, including the nature of the Defendant’s statement.

Therefore, the Defendant should be deemed to have received KRW 10 million from Nonindicted 3 in consideration of the Defendant’s duties as well as the consideration for intermediary services related to Nonindicted 1’s habitual gambling, which falls under the duties of another judge.

Nevertheless, the lower court, solely based on its stated reasoning, found that the Defendant received KRW 10 million from Nonindicted 3 in return for the good offices in connection with Nonindicted 1’s habitual gambling case, and found that the Defendant did not receive KRW 10 million in return for the Defendant’s duties and acquitted the Defendant of this part of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine on the acceptance of bribe, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

C. On December 2015, part of the violation of the Act on the Acceptance of Bribe and the Aggravated Punishment, etc. of Specific Crimes (Bribery)

The lower court, on the grounds indicated in its reasoning, acquitted the Defendant of this part of the facts charged on the grounds that it is difficult to believe that Nonindicted 4’s statement that offered a bribe of KRW 5 million to the Defendant is of objectivity or rationality, and otherwise, there is no evidence to prove that the Defendant was given KRW 5 million from Nonindicted 4.

In light of the records, the lower court did not err in its judgment by misapprehending the principle of court-oriented trial and substantial direct examination or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on acceptance of bribe and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

3. Scope of reversal

On the grounds delineated earlier, the part of the lower judgment regarding acceptance of bribe on October 27, 2015 should be reversed. Since the part and the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on the same day as the judgment of the lower court found guilty is in an ordinary concurrent relationship, it should be reversed together. In addition, the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) on the grounds that the upper half of 2014 and the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) around February 2015 are concurrent crimes under the former part of Article 37 of the Criminal Act. Since the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) around February 2015 is in an ordinary concurrent relationship with the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation), the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) and the Act) around 2015.

4. Conclusion

Therefore, among the judgment below in the first half of 2014, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) around February 2015, and the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on October 27, 2015, the bribery and the Act on the Aggravated Punishment, etc. of Specific Crimes are reversed and remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeal is dismissed. It is so decided as per

Justices Kim Shin (Presiding Justice)