[1] Whether a specific method and money, valuables, or financial benefits of a bribe payer should be received directly between the donor and the consignee in the crime of bribery (negative)

[2] The case holding that in a case where Defendant A, who is a public official, received a bribe from Defendant B, after hearing the phrase “the person in charge of the gift will send the salted fish,” and then consented to it, sent the list of the persons who want to do so to Defendant B, and let Defendant B deliver the salted fish to the said persons, with the name of Defendant A, as if Defendant A made a gift, and had Defendant A do so, and received a bribe in relation to his duties in a way that he did not pay the price, and Defendant A was indicted for offering a bribe to Defendant A, the case holding that the crime of offering a bribe and the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established on the ground that Defendant A’s acquisition of the salted salted fish by Defendant B’s new contribution was realized, and that money and other valuables was not received directly between the donor and the consignee

[1] The crime of bribery is the realization of the intent of the donor to accept the bribe by the donor's contribution, and the specificness of the donor should be understood from the perspective of the beneficiary's burden of benefit related to the act of duty. Thus, money, valuables, property benefits, etc. need not be received directly between the donor and the consignee.

[2] In a case where Defendant A, who is a public official of the Republic of Korea, was indicted on charges of offering a bribe to Defendant A, after hearing the phrase “the person in charge of a gift will send a sled fish,” and after consenting to this, sent a list of 329 persons to Defendant B, and let the said person send the 329 persons to the above persons with the name of Defendant A, and let the said persons send the 11,186,000 won as if Defendant A made a gift, and he received a bribe in the manner of not paying the price, the case holding that Defendant B was the head of the fishing village fraternity in the Do, and Defendant A was the public official of the Do government office, and Defendant A was in charge of the duty of providing a bribe, and Defendant A did not directly appear to have been aware of the newly issued persons to Defendant A, and Defendant A did not directly appear to have been aware of the newly issued persons, and Defendant A did not directly appear to have been provided with the name of Defendant A’s new characters, and Defendant A did not directly appear to have been provided with Defendant A’s new characters.

[1] Articles 129(1) and 133(1) of the Criminal Act / [2] Articles 129(1) and 133(1) of the Criminal Act

[1] Supreme Court Decision 2006Do8568 decided Jun. 12, 2008 (Gong2008Ha, 100)

Defendant 1 and one other

Prosecutor

Attorney Park Jin-jin et al.

Incheon District Court Decision 2017No153 decided July 14, 2017

The part of the judgment below regarding the offering of bribe to Defendant 1 and Defendant 2 shall be reversed, and that part of the case shall be remanded to the Incheon District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On November 2013, the head of ○○○○ △△△△△△△△△, Defendant 2 heard the phrase “in the case of a person who is engaged in a gift, he will send the salted fish” from Defendant 1 to Defendant 1, and sent a list of the persons who wish to do so, and let Defendant 1 send the name of Defendant 2 to the said person, stating the name of Defendant 2, and send the salted fish to Defendant 2 as if he were engaged in a gift.

Defendant 2: (a) from November 12, 2013 to November 12, 2014, Defendant 2: (b) had 329 persons who wish to donate the salted fish, as indicated in the attached Table of the lower judgment, sent the total amount of KRW 11,186,00 to Defendant 1; and (c) received a bribe in relation to the public official’s duties in a manner that did not pay the price; and (d) Defendant 1 offered a bribe to Defendant 2 in relation to the public official’s duties.

B. The judgment of the court below

The court below reversed the judgment of the court of first instance that found Defendant 2 guilty of the charges on the ground that the evidence submitted by the prosecutor alone was insufficient to recognize that the above 329 persons received the salted fish in light of social norms as a relationship that can be evaluated as directly by Defendant 2 as being directly received.

2. Supreme Court Decision

A. Bribery is a realization of the intent of the donor to accept the bribe by the donor’s contribution, and the specificness of the donor should be understood from the perspective of the beneficiary’s burden of benefit related to the act of duty. Thus, money and other valuables or property benefits, etc. need not be received directly between the donor and the consignee (see Supreme Court Decision 2006Do8568, Jun. 12, 2008).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

1) Defendant 1 is the leader of the Anegro, and Defendant 2 served in the head of the △△△△△△ Bureau around January 2012, Defendant 1 was in charge of the fishermen’s fishery guidance, subsidies-related business and the control of fishing-related business.

2) 피고인 1은 공소사실 기재 기간(2013. 11. 12.경부터 2014. 11. 12.경) 이전인 2012. 11.경 피고인 2에게 전화로 ‘선물을 할 사람이 있으면 새우젓을 보내 주겠다’고 말하였고, 이후 피고인 2가 재직 중이던 ○○도청 □□과에 새우젓을 보낼 사람들의 명단을 요청하여 □□과 직원으로부터 명단을 받아 피고인 2의 이름으로 새우젓을 택배로 발송하였다. 당시 피고인 2는 위 새우젓을 받은 ☆☆☆☆☆ 과장으로부터 감사전화를 받고 자신의 이름으로 새우젓이 발송된 사실을 알고서도 피고인 1이나 ◇◇◇◇◇에 이를 문제 삼지 않았다.

3) Since then, Defendant 1 requested the ○○○○ Do Office to list in the same way as the period indicated in the facts charged, and sent the salted fish in the name of Defendant 2 to the persons indicated in the list prepared by the △ branch.

4) 피고인 2는 2013. 11.경 □□과 직원에게 새우젓 발송 명단의 선정기준(퇴직한 ○○도청 □□과 공무원, ○○도의회 의원, ☆☆☆☆☆ 공무원 등)을 지정하였고 위 직원으로부터 위 기준에 따라 작성된 명단을 보고받았다. 위 명단은 피고인 2의 승인을 받은 후 피고인 1에게 전달되었다. 피고인 2는 2014년에는 피고인 1에게 보내는 명단에 직접 자신의 지인들을 따로 추가하기도 하였다.

C. Examining the above facts in light of the legal principles as seen earlier, Defendant 1 is deemed to have established the crime of offering a bribe and the crime of acceptance of bribe under Article 129(1) of the Criminal Act on the ground that Defendant 2’s acquisition intent by Defendant 1’s new sled fish was realized, and the money was not directly received between the donor and the consignee, and the person who received the said new sled fish was recognized as Defendant 2, not Defendant 1, but Defendant 2, and Defendant 1 and Defendant 2, and Defendant 2 understood that there was an agreement between Defendant 1 and Defendant 2 on the provision of the new sled fish, and the method of the above provision was understood as having been understood. Thus, it cannot be viewed as different solely on the ground that the money and valuables were not received directly between the donor and the consignee. The Supreme Court Decision 98Do1234 Decided September 22, 198 cited by the lower court, which is inappropriate for a public official to invoke the matter concerning the offering of a bribe to another person.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine on the establishment of bribery and thereby adversely affecting the conclusion of the judgment. The prosecutor’s ground of appeal assigning this error is with merit.

3. Therefore, the part concerning the offering of a bribe to Defendant 1 and the part concerning Defendant 2 among the judgment below is reversed, and that part of the case is remanded to the court below 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 Noh Jeong-hee (Presiding Justice)