[1] The meaning of "duty-relatedness" as a requisite for establishing a crime of acceptance of bribe

[2] The limitation of the principle of free evaluation of evidence in a criminal trial and the meaning of "reasonable suspicion" in the formation of a conviction

[3] In a case where the defendant, upon the request of the newspaper company and the organization of the elderly, was indicted for violating the former Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) by securing and paying the subscription budget for the newspaper that is sworn at the elderly facilities upon the request of the newspaper company and the organization of the elderly, the case holding that the court below which found the defendant not guilty on the ground that the above money should be deemed to have been received by the defendant in relation to his duties, and that there was an error

[1] Article 129(1) of the Criminal Act / [2] Articles 307(2) and 308 of the Criminal Procedure Act / [3] Article 129(1) of the Criminal Act, Article 2(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010); Articles 307(2) and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 96Do3378 Decided April 17, 1997 (Gong1997Sang, 1368), Supreme Court Decision 2010Do13584 Decided December 23, 2010 (Gong201Sang, 285) / [2] Supreme Court Decision 2004Do2221 Decided June 25, 2004 (Gong2004Ha, 1290), Supreme Court Decision 2008Do2621 Decided June 12, 2008, Supreme Court Decision 2008Do7112 Decided December 11, 2008

Defendant 1 and one other

Prosecutor

Law Firm Chungcheong, et al.

Seoul High Court Decision 2010No2552 decided October 29, 2010

All the judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Bribery is a legal interest directly protected by the law in relation to the process of performance of duties and the insolvency of performance of duties based on the trust of the society. As such, the crime of acceptance of bribe is established when the amount of money received from a public official’s official’s duties and money is in a quid pro quo relationship, and there is no need to consider the existence of solicitation and the quid pro quo relationship for each individual act, and there is no need to specify the act of performance of duties (see Supreme Court Decisions 96Do378, Apr. 17, 1997; 2010Do13584, Dec. 23, 2010, etc.).

Meanwhile, the probative value of evidence is left to a judge’s free evaluation (Article 308 of the Criminal Procedure Act), but such determination must conform to logical and empirical rules, and the degree of the formation of conviction to find a defendant guilty in a criminal trial is not required to an extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, it is not required to exclude all possible doubts, and rejection of evidence which is recognized as probative value by causing a suspicion without any reasonable ground is not allowed beyond the bounds of the principle of free evaluation of evidence. The term “reasonable doubt” in this context refers not to all questions and correspondences, but to the reasonable doubt as to the probability of facts that are inconsistent with the facts that are not compatible with the facts that are found in accordance with logical and empirical rules. As such, it is necessary to establish the basis for this sexual prosecution that is understood in relation to the finding of facts favorable to the defendant, and thus, it cannot be said that there is a reasonable doubt based on an conceptual or abstract possibility of being included in a reasonable doubt (see, e.g., Supreme Court Decision 2008Do2612684.

2. The summary of the facts charged of the instant case is as follows: Defendant 1’s work as the Vice-Chairperson of the Health and Welfare Committee of ○○○○ City from July 1, 2006 to Defendant 2, who runs Nonindicted Co. 1 (hereinafter “Nonindicted Co. 2”) and Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”), the chairman of the network Nonindicted Co. 3 (the deceased, Aug. 2009; hereinafter “the deceased”), who is the chairman of the △△△△○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 17.

In light of the above facts, the lower court: (a) deemed that Defendant 1 was working on July 1, 206 on the part of Nonindicted Company 1 and Nonindicted Company 2’s request for the delivery of money to Nonindicted Company 1 on the deceased’s own; and (b) deemed that Nonindicted Company 2 was not working on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 3 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of Nonindicted Company 2 on the part of Nonindicted Company 1 on the part of 2.

3. However, in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below for the following reasons.

A. According to the reasoning of the judgment below, the other party who decided to pay fees for regular subscription fees pursuant to the instant agreement is only a affiliate of Nonindicted Corporation 2, a federation affiliated with Nonindicted Corporation 2, or a non-indicted corporation 2, and even if Defendant 1 was not a party, Defendant 1 was paid such fees. According to each of the statements at investigation agencies and in the court, Defendant 2 and Nonindicted 6, who did not reject the judgment of the court below, and Defendant 1 was paid fees as above, and Nonindicted 6 consistently made statements to the effect that “○○ City subsidy was paid to Defendant 1 after it was deposited into the National Federation of ○○ City in the first instance court from the investigative agency to the court of first instance, and, in principle, it did not appear that Defendant 1 would not go to the National Federation of ○○ City,” and that it was difficult to see that Defendant 1’s statement to the effect that “the above fee was paid to Defendant 1, who was paid to Defendant 1, the president, and that it was not in accordance with the aforementioned statement to the effect.”

If Defendant 2 and Nonindicted 6’s statement was based on the reasoning of the lower judgment and the record, taking into account the following factors: (a) the process in which ○○ City Subsidies, which is known by the reasoning of the lower judgment and the record, were provided to the ○○ City Federation of Nonindicted Corporation 2; (b) Defendant 1’s role in the process; and (c) the process and method in which the instant money was paid to Defendant, who is not the ○○ City Federation of Nonindicted Corporation 2, was paid to the ○○ City Federation; (b) even if the instant money was the money in the name of commission agreed to be paid to the ○○ City Federation of Nonindicted Corporation 2, Defendant 1, as a member of ○○ City Council, was provided to Defendant 1 on behalf of the ○○ City Federation of Nonindicted Corporation 2, in return

B. The court below determined that it is difficult to exclude a reasonable doubt that the money of this case was delivered to Defendant 1 according to the deceased’s will and was distributed and used by the deceased, etc., and it is not possible to exclude the possibility of assertion that Defendant 1’s assertion that “The first fee of KRW 15 million was paid to Defendant 1, who became aware of the fact that the money was deposited to Defendant’s ancillary account, brought about the deceased to the deceased, and asked the reasons for the payment. In addition, ○○ City Federation, where the deceased opposed to △△△△△△ newspaper Germany, the fees cannot be paid to the deceased, and then the Defendant received the fee of KRW 30 million every year, and then delivered KRW 135 million every five times in total, on behalf of the deceased.”

However, in light of the reasoning of the lower judgment and the record, if Defendant 1 and Nonindicted 6 were to know of the following facts, they were to have received money from the Nonindicted 1’s investigative agency and the deceased’s first instance court’s statement, “The first demand was made to the deceased for their fee, and the deceased’s fee was paid to the Defendant 1 because it would be sufficient for the deceased to follow the deceased’s work.” Furthermore, at the investigative agency and the first instance court, Nonindicted 6 paid KRW 10 million out of the fee to the Nonindicted 2 corporation under the direction of the deceased to pay the fees to the deceased for the first time, and there was no reason to believe that it was difficult for the Defendant 1 to have received money from the Nonindicted 2 to have received money from the deceased for the purpose of using the money in cash, and there was no reason to believe that there was no need to use the money for the first time after having received money from the deceased, and there was no reason to believe that the said money would have been distributed to the said Nonindicted 1 corporation.”

The circumstances pointed out by the court below are merely those that are difficult to believe that the deceased demanded the delivery of the instant money to Defendant 1 on behalf of the deceased after receiving the fees under the instant agreement, or that there was no direct connection with the nature of the said money, or that the deceased’s wife, without indicating the specific facts as to the monetary transaction between the deceased and Defendant 1, stated the judgment, and thus, it cannot be deemed that the instant money was delivered to Defendant 1 according to the deceased’s intent and distributed and used by the deceased, etc.

Nevertheless, the court below held that the instant money constitutes a case where there is no evidence of criminal facts as to the facts charged of the instant case under the premise that it is difficult to exclude a reasonable doubt that the said money was delivered to Defendant 1 according to the deceased’s will and was distributed and used by the deceased, etc., on the grounds stated in its reasoning. The court below erred by misapprehending the legal principles on the crime of bribery and the principle of free evaluation of evidence and by recognizing facts contrary to the empirical rule, thereby affecting

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)