[1] Whether the establishment time of the promise of a bribe and the value of the profit which is the object of the bribe should be determined in the crime of promising a bribe (negative)

[2] Where an executive officer or employee of a local government-invested public corporation deemed a public official under Article 83 of the Local Public Enterprises Act receives money, valuables, or other benefits from a person related to his/her duties, whether he/she is related

[3] The meaning and limitation of the principle of free evaluation of evidence under Article 308 of the Criminal Procedure Act

[1] Articles 129(1), 131(2), and 133(1) of the Criminal Act; Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 129(1) of the Criminal Act; Article 83 of the Local Public Enterprises Act / [3] Articles 307(1) and 308 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2000Do5438 Decided September 18, 2001 (Gong2001Ha, 2302) Supreme Court en banc Decision 2005Do7288 Decided April 19, 2007 (Gong2007Sang, 923) / [2] Supreme Court Decision 2001Do6721 Decided July 26, 2002 (Gong202Ha, 2142) / [3] Supreme Court en banc Decision 201Do1650 Decided August 20, 2015 (Gong2015Ha, 1440)

Defendant 1 and two others

Defendant 1 and Prosecutor

Law Firm Barun, Attorneys Lee Dong-hun et al.

Seoul High Court Decision 2015No2023 decided February 17, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal on the charge of promising bribe related to B-B block (hereinafter “B block”) and the Prosecutor’s ground of appeal on the non-guilty part

A. In the crime of promising a bribe, the promise of a bribe is established if the parties expressed their intent to accept and deliver a bribe in the future in connection with their duties, and the amount of the bribe is not at issue. Furthermore, it does not affect the establishment of the crime of promising a bribe even if the value is not determined and conclusive where the subject matter of the bribe is a profit (see, e.g., Supreme Court Decision 2000Do5438, Sept. 18, 2001). However, in applying Article 2 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Specific Crimes Aggravated Punishment Act”), in cases where the crime of promising a bribe or the crime of promising a bribe after an illegal disposal is committed, the value of the promised bribe is at least KRW 100 million as part of the constituent elements of the crime, and the punishment is aggravated depending on the value thereof, the value of the bribe must be calculated, and it should be strictly and carefully recognized that the principle of balanced or responsible for the crime is not damaged (see, e.g., Supreme Court en banc Decision 2009Do8797.

B. The summary of this part of the facts charged is that Defendant 1 promised to receive KRW 800 million out of the office operating expenses anticipated to be set up by Nonindicted Company 2 and Defendant 2 in the future, and the amount of KRW 360 million out of the office operating expenses anticipated to be set up by Nonindicted Company 1 in the future from Nonindicted Party 2 and Defendant 2, and the amount of KRW 2 billion out of the project financing funds anticipated to be created by Nonindicted Company 1 (hereinafter “PF funds”), and Defendant 2 promised to give bribe to Defendant 1 in collusion with Nonindicted Party 2.

As to this part of the facts charged, the prosecutor charged Defendant 1 with the crime of promising to offer a bribe of the above amount on the ground that the value of the bribe promised by Defendant 1 and Defendant 2 exceeds at least 1,160,000 won, and charged Defendant 1 with the crime of violating Article 2(1)1 of the Specific Crimes Aggravated Punishment Act.

As to this, the lower court acknowledged the fact of promising a bribe between Defendant 1 and Defendant 2, as indicated in the facts charged, and determined that, although the profit subject to the promise constitutes a bribe related to the duties of Defendant 1, the evidence submitted by the prosecutor alone cannot determine the equity value of Nonindicted Company 1; the office operation cost of KRW 360 million is premised on the fact that the office operation cost of Nonindicted Company 1 would be at least KRW 50 million for three years in the future, but it is difficult to determine the amount; the 80 million won of the fund was committed on the condition of raising Nonindicted Company 1’s PF funds in the future, and it is difficult to view that the amount became final and conclusive, on the ground that the value of the bribe promised cannot be determined; accordingly, Defendant 1 and Defendant 2 agreed to accept the bribe of Nonindicted Company 1, on the premise that the amount exceeding the amount of the promise to offer the bribe of KRW 131(2) of the Criminal Act is in violation of the Act, and that Defendant 1 and Defendant 2 were guilty on the ground of the crime of offering offering the bribe of KRW 1360 million.

C. According to the reasoning of the judgment below and the record, the object of a bribe committed by Defendant 1 and Defendant 2 is presumed to be the premise that Nonindicted Company 1, who was selected as a contracting partner during the process of selling the block B block in the reverse Northern District, was to conclude this contract with the Young Urban Corporation. At the time of the above promise, it is not clear whether such premise can be met, and it does not seem to have any conclusive intent to deliver the bribe that Defendant 2 promised. In addition, in light of the legal principles as seen earlier, in light of all the circumstances indicated in the records, the mere fact that the above Defendants agreed to accept the bribe, such as the above recognition, does not lead to the conclusion that the value of the bribe goes beyond KRW 1.60,00,000. Thus, the court below found Defendant 1 and the prosecutor guilty by applying the crime of bribery promise under the Criminal Act to the above facts charged, and found Defendant 1 and the specific crime violation of the Aggravated Punishment Act, etc. were not guilty. In so doing, contrary to the grounds of appeal by Defendant 1 and prosecutor, it did not err by exceeding the bounds of logic or the principle of free evaluation of evidence.

2. As to Defendant 1’s remaining grounds of appeal

A. The receipt of a bribe after the acceptance of the bribe related to the B block in the reverse Northern District and the receipt of the bribe after the illegal disposal of the bribe

When an executive officer or employee of a local government-invested public corporation deemed a public official pursuant to Article 83 of the Local Public Enterprises Act receives money, valuables or other benefits from persons related to his/her duties, in light of the social norms, it shall not be deemed that there is no connection with his/her duties, unless there are special circumstances, such as where it is merely a courtesy, or it is clearly recognized that an individual-friendly relationship is due to the need for school division. If he/she received money or other valuables in relation to his/her duties, even if he/she received money or other valuables from a person related to his/her duties, such received money or other valuables shall constitute a bribe (see Supreme Court Decision 2001Do6721, Jul. 26,

Based on its stated reasoning, the lower court determined that Defendant 1 committed an unlawful act that Defendant 1 selected Nonindicted Company 1 as a potential concessionaire for a housing construction project, not a housing construction business registrant, and received KRW 11 million in total, from Nonindicted 2 and Defendant 3, and that the money constitutes a bribe related to Defendant 1’s duties, on the grounds that it cannot be deemed a borrowed money, and that it constitutes a bribe related to Defendant 1’s duties.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

B. Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Articles 307(1) and 308 of the Criminal Procedure Act provide that fact-finding shall be based on evidence, and the probative value of evidence shall be based on the discretion of the judge. This means that a judge’s prior selection of necessary evidence and evaluation of the substantial value of evidence is subject to free evaluation of evidence. Therefore, insofar as it is not contrary to logical and empirical rules by either rejecting sufficient probative evidence without any reasonable ground or by accepting and using evidence clearly contrary to objective facts without any reasonable ground, a judge may choose facts by free evaluation of evidence (see Supreme Court en banc Decision 2013Do1650, Aug. 20, 2015).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, it is reasonable that the lower court, based on the circumstances in its reasoning, found the fact that Defendant 1, in collusion with Nonindicted 2 and Defendant 3, posted the same article as Nonindicted 3, etc. on the Internet camera, “○○○○○○ Share Union” bulletin, which is an Internet camera, thereby impairing Nonindicted 3, etc. by posting the same article as those indicated in attached Tables 1 through 7 of the first instance judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did

3. As to the remainder of the Prosecutor’s Grounds of Appeal

A. Parts related to B-D block (hereinafter “B-D block”)

1) In a criminal trial, the conviction of a guilty shall be based on evidence with probative value, which can lead a judge to have the true and true doubt that the facts charged are beyond a reasonable doubt. If there is no evidence with such probative value, the conviction of a guilty cannot be determined even if there is a suspicion of guilt against the defendant (see Supreme Court Decision 2001Do2823, Aug. 21, 2001, etc.).

2) The summary of this part of the facts charged is as follows: (a) Defendant 2 and Defendant 3 was deprived of the status of the negotiating partner for the sale business of the so-called “Yan urban construction project” according to the audit conducted at the time of acceptance by Nonindicted Company 1, and attempted again to participate in the sale business, such as the Jan urban construction project with Defendant 1’s help; (b) Defendant 1 did not give money to Defendant 2 and Defendant 3; and (c) Defendant 2, Defendant 3, and Nonindicted Company 1 agreed to receive KRW 20-3 billion if they were to participate again in the said business.

As to this part of the facts charged, the prosecutor: (a) on the premise that the other party to whom the bribe was given is Defendant 1, on the premise that the other party to the bribe was Defendant 1; (b) on the premise that Defendant 1 promised to receive the above bribe and Defendant 2, Defendant 3 also promised to give the bribe as above to Defendant 1; and (c) on the premise that Defendant 1 promised to give the above bribe among Defendant 1, Defendant 2, and Defendant 3, Defendant 2, and Defendant 3, each of whom constitutes the crime of violation of the Specific Crimes Aggravated Punishment Act (Bribery) and the crime of promising to offer the bribe.

3) On the grounds indicated in its holding, the lower court acquitted Defendant 1 of all the facts charged surrounding and conjunctive charges on the ground that it is not recognized that there was a conclusive intent to prepare and deliver a bribe to the said Defendants, regardless of whether the said Defendants were Defendant 1 or the Mayor/Do governor or not.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above judgment of the court below is sufficiently acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the crime of promising bribe and the crime

B. The guilty part

The Prosecutor appealed to the Defendants as to the entire judgment of the court below. However, there is no legitimate ground of appeal as to the guilty portion, nor there is no statement in the grounds of appeal as to the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)