[1] The time when a person appointed or commissioned as a member of the local traffic impact deliberation committee by the Mayor/Do Governor becomes a public official who is the subject of the bribery charge (=the time of appointment or commission)

[2] The scope of reversal in a case where both parties filed an appeal against the judgment of the appellate court which partially convicted and acquitted the part of the charge of concurrent crimes under the former part of Article 37 of the Criminal Code, but only the prosecutor’s appeal against the part of the charge was justified (=the whole part

[1] According to Article 19(5) and (8) of the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (amended by Act No. 7186 of Mar. 11, 2004) and Article 19(1), (2), and (4) of the former Enforcement Decree of the Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (amended by Presidential Decree No. 19052 of Sept. 16, 2005), a person who is appointed or commissioned as a member of the Local Transport Impact Deliberation Committee by the Mayor/Do Governor shall be a public official who is the subject of the crime of bribery under Article 129 of the Criminal Act from that time. A person who is appointed or commissioned as a member of the Local Transport Impact Deliberation Committee shall be a public official who is the subject of the crime of bribery under Article 129 of the Criminal Act, prior to holding a meeting of the Local Transport Impact Deliberation Committee to deliberate a specific agenda

[2] A part of the appellate court's judgment of conviction and a part of the judgment of acquittal, and both the defendant and the prosecutor filed an appeal against the judgment. However, in a case where the defendant's appeal against the guilty part is without merit and only the prosecutor's appeal against the guilty part is with merit, if the crime recognized as guilty and the crime not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the appellate court's judgment should also be reversed together

[1] Article 19(5) and (8) (see current Article 12 of the Environmental Impact Assessment Act) of the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (Amended by Act No. 7186, Mar. 11, 2004); Article 19(1), (2), and (4) (see current Article 8 of the Enforcement Decree of the Environmental Impact Assessment Act); Article 129 of the Criminal Act / [2] Article 37 of the Criminal Act; Articles 383 and 391 of the Criminal Procedure Act

[2] Supreme Court Decision 2000Do2123 decided Nov. 28, 2000 (Gong2001Sang, 229) Supreme Court Decision 2005Do7473 decided Jun. 28, 2007 (Gong2007Ha, 1203) Supreme Court Decision 2008Do2099 Decided May 29, 2008

Defendant 1 and three others

Defendant 1, 2, 4 and Prosecutor (Defendant 3, 4)

Attorneys Lee Im-soo et al.

Seoul High Court Decision 2006No1021, 2006No2631 decided March 23, 2007

The part of the lower judgment against Defendant 3 and 4 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1 and 2 are all dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

According to the records, Defendant 1 appealed the judgment of the court of first instance on the sole ground of unfair sentencing as the grounds for appeal. Thus, the court below's failure to exhaust all necessary deliberations and the argument of violation of the rules of evidence or misapprehension of legal principles cannot be a legitimate ground for appeal.

2. Judgment on Defendant 2’s grounds of appeal

The court below found Defendant 2 guilty of each acceptance of bribe by taking full account of the evidence presented by the court below. In light of the relevant statutes and the records, it is proper to take such measures by the court below, and there is no violation of the rules of evidence, misunderstanding of legal principles as to confession, misunderstanding of legal principles as to the subject of the

3. Judgment on the grounds of appeal by the prosecutor

In full view of the adopted evidence, the court below acknowledged the facts as stated in its reasoning, such as the fact that Defendant 3 was not designated as a member of the Committee for Deliberation on Traffic Impact in 2004 at the 12nd meeting of the Gyeonggi-do Deliberation Committee on Traffic Impact (2004 April 1, 2004) which was presented as the agenda for deliberation of traffic impact assessment on the Class 1 district unit plan of the Gosco Construction, a high-class 1 district project site of Macco Construction Co., Ltd., and found that the above defendant was commissioned as a member of the Committee for Deliberation on Traffic Impact in Gyeonggi-do, and held that the facts charged in this case on the premise that the above defendant was in a public official position cannot be deemed as a public official in the crime of bribery. Thus, the court below found the above defendant not guilty

However, such determination by the court below is difficult to accept for the following reasons.

Article 19(5) and (8) of the former Act on Assessment of Impacts of Works on Environment, Traffic, Disasters, Etc. (amended by Act No. 7186, Mar. 11, 2004); Article 19 of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 19052, Sep. 16, 2005); and Article 19 of the former Enforcement Decree of the same Act (hereinafter referred to as the “Local Deliberative Committee”) provides that “Local Traffic Impacts Deliberation Committee (hereinafter referred to as the “Local Deliberative Committee”) which deliberates on traffic impact assessment shall be comprised of not less than 21 but not more than 40 members, including one chairperson, who is the head of the office or bureau in charge of traffic affairs of Cities/Dos (Article 19(1) of the Enforcement Decree of the same Act). Members of the Local Deliberative Committee shall be those appointed or commissioned by the Mayor/Do Governor from among public officials of relevant administrative agencies, persons with extensive knowledge and experience in traffic, urban planning, construction, etc., and persons appointed or commissioned by the head of the above Local Deliberative Committee shall be designated by the Governor.

Nevertheless, the lower court erred by misapprehending the relevant legal principles, thereby adversely affecting the conclusion of the judgment, and the Prosecutor’s ground of appeal assigning this error is with merit.

4. Judgment on Defendant 4’s grounds of appeal

According to the records, Defendant 4 appealed the judgment of the court of first instance on the sole ground of unfair sentencing as the grounds for appeal, and the defense counsel of the above defendant asserted a new mistake of facts and misapprehension of legal principles through the supplementary statement of grounds for appeal, but the court below did not separately decide on the above allegations on the grounds that the supplementary statement of grounds for appeal was submitted after the deadline for submitting the grounds for appeal. Thus, the above defendant's appeal cannot be deemed a legitimate ground for appeal.

5. The scope of reversal of the judgment of the court below against Defendant 4

In a case where a part of the appellate court's judgment of conviction and a part of the judgment of acquittal, and both the defendant and the prosecutor filed an appeal against the judgment of acquittal, but the defendant's appeal against the conviction part is without merit and only the prosecutor's appeal against the acquittal part is with merit, if the crime which the appellate court found guilty and the crime which found the acquittal are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the conviction in the appellate court's judgment should also be reversed (see Supreme Court Decisions 2000Do2123, Nov. 28, 200; 2008Do2099, May 29, 2008, etc.).

According to the above legal principles, the judgment of the court below against Defendant 4 shall be reversed in its entirety (In addition, the court below shall reverse the judgment of the court of first instance against Defendant 4, and found Defendant 3 guilty of the remainder of the charges except for the offering of bribe to Defendant 3, and omitted the entry of the applicable provisions of law against Defendant 4 in the "application of Acts and subordinate statutes" for the reason. When a sentence is sentenced, it shall be pointed out that Article 323 of the Criminal Procedure Act, which stipulates that the application of Acts and subordinate statutes shall be specified in

6. Conclusion

Therefore, the part of the judgment of the court below against Defendant 3 and 4 is reversed, and that part of the case is remanded to the court below for a new trial and determination. Defendant 1 and 2 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)