2013Do15989 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), bribery

A person shall be appointed.

Defendant

Attorney AF

Seoul High Court Decision 2013No2186 Decided December 12, 2013

February 27, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

A. In the crime of providing third-party bribery under Article 130 of the Criminal Act, where the request for unlawful solicitation is made not only when the performance of duties is illegal or unreasonable, but also when the performance of duties requested is connected to a certain consideration relationship and the delivery of compensation for the performance of duties is made, even if the performance of duties is not illegal or unreasonable, it is necessary to have a common understanding or understanding between the parties with regard to the content of the performance of duties subject to solicitation and the fact that the money and valuables provided to a third party are a consideration for the performance of duties (see, e.g., Supreme Court Decision 2010Do12313, Apr. 14, 201).

In addition, in determining whether a bribe related to his/her duties is a bribe or an illegal solicitation is made, all the circumstances such as the contents of the relevant duties or solicitation, the relationship with the provider of benefits, the degree and timing of receiving benefits, etc., and also whether the receipt of benefits is doubtful of the fairness of performing his/her duties and the confidence in society and the impossibility of performing his/her duties in light of the protected legal interests and interests of the crime of bribery, which are called a fair performance of duties and the misappropriation of the performance of duties (see Supreme Court Decision 2011Do445, Jul. 28, 2011).

In full view of the adopted evidence, the lower court recognized the circumstances as indicated in its reasoning, such as the pending issues of H Co., Ltd., the FF and H Co., Ltd., the relationship between the FF and H Co., Ltd., the status of the Defendant, the timing and circumstances of payment of support payments, and thereby, found

Considering that there was a quid pro quo relationship with the Defendant and L, the Defendant guilty of the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Nos. 1 through 5, 7, and 8 of the List of Crimes as indicated in the judgment below).

In light of the above legal principles and records, the above fact-finding and determination by the court below are just, 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 principles as to the

B. Even if a bribe has been received over several occasions, it is reasonable to punish the bribe as a single and continuous crime if it is committed by a single and continuous criminal intent, and if it is not possible to recognize the uniformity and continuity of such criminal intent, it shall be subject to concurrent crimes (see Supreme Court Decision 2002Do399, May 14, 2002, etc.).

In light of the above legal principles and records, after recognizing facts as stated in its holding, the court below judged that the comprehensive crime against the Nos. 1 through 3 and Nos. 4, 5,7, and 8 of the annexed crime list No. 1 through 4, 7, and 8 of the judgment of the court below was established, and that each time the criminal intent cannot be deemed to be severed solely on the ground that the third party who receives money, valuables, and other benefits was different in the case of bribery to a third party. On the other hand, the court below determined that the defendant had a separate criminal intent on the ground that there is a difference between illegal solicitation or the defendant's specific act of duty, and that the defendant constitutes an independent crime

2. As to the grounds of appeal on acceptance of bribe

Whether a public official’s profit constitutes a bribe as an unjust profit in relation to a public official’s duty, must be determined by taking into account all the circumstances such as the contents of the public official’s duty, the relationship between the provider of the duty and the benefit, whether there exists a special relationship between the parties, the degree of and timing for receiving the benefit, etc. (see, e.g., Supreme Court Decision 2010Do17797, Mar. 24, 2011). If a public official received money, valuables, or other benefits from a person subject to his/her duty from a person subject to his/her duty, barring any special circumstance, such as the fact that the public official is merely an ordinary price in light of the social norms, or a personal relationship is deemed as a necessity for the school. If a public official received money and other valuables in relation to the public official’s duty, even if he/she received money and other valuables in relation to the public official’s duty, such money and other valuables shall constitute a bribe (see, e.g., Supreme Court Decision 2012Do6280, Aug.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court is justifiable to have determined that the Defendant received seven million won from P in relation to his/her duties on May 24, 201, based on the circumstances indicated in its reasoning, and found the Defendant guilty of the charges regarding bribery. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of logic and experience and by exceeding the bounds of the free evaluation of evidence

3. Conclusion

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

Justices Min Il-young

Justices Lee In-bok

Justices Park Poe-young

Justices Kim Shin