In the case of receiving a request for the affairs handled by a public official, whether a crime of violation of Article 111 of the Attorney-at-Law Act is established in the case of simply delivering money or valuables to a public official who is the other party to the request without the intention to take advantage of

Article 111 of the Attorney-at-Law Act, Articles 132 and 133(2) of the Criminal Act

Supreme Court Decision 97Do439 delivered on June 27, 1997 (Gong1997Ha, 2237) Supreme Court Decision 2005Do5567 Delivered on November 24, 2006 (Gong2007Sang, 92)

Defendant

Defendant

Law Firm Roice, Attorneys Yang Ho-pon et al.

Suwon District Court Decision 2004No2339 delivered on August 25, 2004

The conviction part of the judgment of the court below against the defendant shall be reversed, and this part of the case shall be remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the charge of violation of Article 111 of the Attorney-at-law Act against the defendant is that the defendant, in collusion with the non-indicted 2, 3, knowing that the non-indicted 1 corporation, which promoted the apartment project in the area of ○○○○ Dong (name omitted), should receive an official document that "it is possible to operate the apartment project in the area of (name omitted)" from ○○○ City in order to raise the balance of the purchase of the land, and on September 14, 2003, the defendant received a public notice from the non-indicted 4, who requested the representative director of the non-indicted 1 corporation to the non-indicted 5, who is the head of ○○ City, to the non-indicted 5, who is the non-indicted 1 corporation, to the effect that the apartment project in the (name omitted) zone is possible, and the court below affirmed the judgment of the court of first instance that the non-indicted 1 corporation would receive money and valuables from the non-indicted 1 corporation or 200 million won.

2. However, the lower court’s determination is difficult to accept for the following reasons.

In a case where money and valuables are not received to make a request for a case or affairs handled by a public official, and where the money and valuables are received to a public official who is the other party to the solicitation and received a request for the affairs handled by a public official and are simply delivered to the public official, only the crime of mediation and acceptance of bribery or the crime of delivery of evidence is established, and in such a case, the crime of violation of Article 111 of the Attorney-at-Law Act cannot be established (see Supreme Court Decision 97Do439 delivered on June 27,

However, according to the records, the defendant would make a solicitation to the representative director of the non-indicted 1 corporation through the non-indicted 5, the chief secretary of the ○○ market, through the non-indicted 5, to receive a public letter that the apartment business in the (district name omitted) zone is possible, and the non-indicted 2, who was well aware of the non-indicted 5, requested him to make a solicitation to the non-indicted 5 so that the non-indicted 1 corporation may receive the above public letter, and thereafter, upon the above request, the non-indicted 2, who made such solicitation to the non-indicted 5, demanded that the defendant demand KRW 200 million on the condition that the non-indicted 5 would receive the above public letter from the city of ○○ City and the remaining KRW 100 million should be given to the non-indicted 1 corporation, and the defendant may demand the defendant to accompany the non-indicted 1 corporation to the non-indicted 1 corporation on the condition that the non-indicted 1 corporation will receive the above public letter.

If the facts are the same, there was an agreement between the parties to receive the above money at the time when the above KRW 100 million was delivered to Nonindicted Co. 1 through the Defendant to Nonindicted Co. 2. Accordingly, since the Defendant did not receive the above money in order to gain his own profit under the pretext of solicitation of a case or affairs handled by a public official, it was received not merely to receive the above money but to deliver it to Nonindicted Co. 5, the other party to the solicitation, it is difficult to view the Defendant’s act of receiving the money and valuables as a crime falling under Article 111 of the

Nevertheless, the court below held that the above act of the defendant constitutes a violation of Article 111 of the Attorney-at-Law Act. The court below erred by misunderstanding facts against the rules of evidence, or by misunderstanding the legal principles on the violation of Article 111 of the Attorney-at-Law Act, and the illegality affected the decision

The appeal pointing this out is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the guilty portion of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)