(영문) 서울고등법원 2014.1.24.선고 2012노2848 판결

Defendant shall be punished by imprisonment for a period of two years and six months and by a fine of fifty thousand won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period of fifty thousand won converted by one day.

20,000,000 won shall be additionally collected from the defendant.

Reasons

1. Summary of grounds for appeal;

A. Legal principles

According to the provisions of Articles 45 subparag. 2 and 5-2 of the Construction Technology Management Act, only the members of the Design Advisory Committee who are not public officials among the members of the Design Advisory Committee are deemed public officials in the application of the crime of bribery. Thus, the Defendant was commissioned as the members of the Design Advisory Committee of the Korea Environment Corporation and was not commissioned as the members of the Environmental Advisory Committee of the Korea Environment Corporation. Therefore, the Defendant cannot be established the crime of acceptance of bribe by applying Article 45 of the Construction Technology Management Act, which is

B. Error of mistake

The judgment of the court below which found the Defendant guilty of all the facts charged of this case, even though the Defendant stored KRW 20 million received from H and KRW 10 million received from L on January 201 as the intention to return them from H from the beginning, and did not accept it with the intention to obtain it, is erroneous in the misapprehension of facts.

The punishment of the court below against the defendant (limited to four years of imprisonment and fine of 50 million won, additional collection of 20 million won) is too unreasonable.

2. Determination

A. As to the assertion of misapprehension of legal principle

1) The purport of Article 45 subparagraph 2 of the Construction Technology Management Act provides that when applying the provisions of bribery under criminal law, a member who is not a public official among the members of the design advisory committee of contracting authority under Article 5-2 of the Construction Technology Management Act shall be regarded as a public official, in order to enhance the fairness and transparency of the deliberation of the design advisory committee, where a person who is not a public official handles his duties as a member of the design advisory committee

However, Article 5-2(2) of the Construction Technology Management Act provides that matters necessary for the composition, functions, operation, etc. of the Design Advisory Committee shall be determined by the contracting authority in accordance with the standards prescribed by Presidential Decree, and the Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 24390, Feb. 20, 2013) shall be established and operated by the Design Advisory Committee in order to efficiently carry out certain matters, such as matters concerning the deliberation of alternative designs and package deal tender design among its duties (Article 21(5)). Article 21(5) provides that the members of the Design Advisory Committee shall be appointed or commissioned by the contracting authority from among the construction technology deliberation committees of various levels, other contracting authorities, other persons recommended by the Design Advisory Committee of other contracting authorities or related civil organizations (Article 21(1)), and the members of the Design Advisory Committee shall be appointed or commissioned by the chairperson of the Design Advisory Committee from among persons meeting the relevant qualification requirements listed in attached Table 2 (Article 10(5) applied mutatis mutandis by

In light of the fact that the design deliberation subcommittee of the contracting authority performs certain matters among the affairs of the design advisory committee, which are subordinate bodies of the design advisory committee, and for this purpose, among the members of the design advisory committee, the members of the design deliberation subcommittee shall perform the duties of the design advisory committee as prescribed by the Construction Technology Management Act. Therefore, if a person appointed or commissioned as a member of the design deliberation subcommittee of the contracting authority receives unfair money or other valuables related to the duties of the design deliberation subcommittee or its members, it is reasonable to deem that the crime of bribery is established as a member of the design advisory committee under Article 45 (2) of the Construction Technology Management Act

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

A) The Korea Environment Corporation has a design advisory committee under Article 5-2 of the Construction Technology Management Act as a corporation belonging to the contracting authority under Article 2-5 of the Construction Technology Management Act. The Korea Environment Corporation is organizing and operating a design deliberative subcommittee and committee under Article 21-5 of the Enforcement Decree of the Construction Technology Management Act to efficiently carry out certain matters, such as deliberation on package deal tender, alternative tender, etc. among its duties.

B) On January 6, 2011, the Defendant was commissioned by the president of the Korea Environment Corporation as a member of the subcommittee of the design trial of the Korea Environment Corporation on the recognition of the term “high number of departments related to technology in universities under Article 2 subparag. 1 of the Higher Education Act, which stipulated the requirements of qualification of members of the subcommittee of design deliberation in the Construction Technology Management Decree and the Korea Environment Corporation’s Guidelines for Operation of the Design Advisory Committee (hereinafter referred to as the “Operation Guidelines”).

C) On January 201, 201, the Defendant received cash of KRW 20 million from the employees of the participating company in the bidding to the effect that it is well-known in relation to the examination of design documents in the process of examining, evaluating, etc. design documents on package deal projects of various construction works ordered by the Korea Environment Corporation based on the above commission, and received KRW 30 million in cash from the participating company’s employees during the bidding from January 201 to April 201, and received KRW 30 million in cash from the relevant company to the effect that it is well-known in relation to the examination of design documents.

3) As above, the Enforcement Decree of the Construction Technology Management Act stipulates that the chairperson of the Design Advisory Committee shall appoint or commission members of the design deliberation subcommittee by the contracting authority. However, the Defendant was directly commissioned by the chairperson of the Korea Environment Corporation, the contracting authority, as a member of the design deliberation subcommittee

However, as seen earlier, the Construction Technology Management Decree has the authority to appoint or commission the members of the Design Advisory Committee, which are superior agencies of the Design Deliberation Subcommittee, and to appoint or commission them from among the members of the Design Advisory Committee, by prescribing that the members of the Design Deliberation Committee of the contracting authority shall be appointed or commissioned from among the members of the Design Advisory Committee. The members of the Design Deliberation Committee of the contracting authority have to carry out certain matters from among the affairs of the Design Advisory Committee on the premise that they are basically subject to appointment or commission procedures by the contracting authority. Moreover, the Construction Technology Management Decree of the Construction Technology Management Act allows the chairperson of the Design Advisory Committee to appoint or commission the members of the Design Advisory Committee.

The purpose of this case is to stipulate the necessary matters concerning the composition, operation, etc. of the Design Advisory Committee to deliberate and advise on the matters concerning construction works and construction technology implemented by the Korea Environment Corporation in accordance with Article 5-2 of the Construction Technology Management Act and Article 21 of the Enforcement Decree of the Construction Technology Management Act in Article 1 (Purpose). The operation guidelines of this case clearly state that the operation guidelines of this case set forth detailed matters concerning the composition, function, operation, etc. of the Design Advisory Committee within the scope of the standards of the Construction Technology Management Act and the Enforcement Decree of the same Act. Article 19 (1) of the Operational Guidelines of this case stipulates that the Design Advisory Committee shall organize and operate the Design Advisory Committee to efficiently carry out the affairs such as design deliberation, technical deliberation, etc. of the Design Advisory Committee, and stipulates that it is the subject of the formation and operation of the Design Advisory Committee. Furthermore, Article 7 (9) of the Operational Guidelines of this case provides that "where a member of the Design Advisory Committee violates the Code of Ethics as a member of the Sub-Committee."

Meanwhile, Article 19(7) provides that "the commissioned design adviser shall not be held concurrently with the design deliberation subcommittee." In light of the construction technology management law and the contents and validity of the operation guideline of this case, the above provision means that the members of the design deliberation subcommittee concurrently take charge of the duties of the subparagraphs of Article 19(1) among the duties of the design deliberation committee and the members of the general design deliberation committee who are not the members of the design deliberation subcommittee are in charge of the other duties of the design deliberation subcommittee, and it is only the purpose of distinguishing the duties of the design deliberation subcommittee members and the general design deliberation subcommittee members, and it does not mean that the status of the members of the design deliberation subcommittee and the status of the design deliberation subcommittee cannot be compatible. If Article 19(7) of the operation guideline of this case means that the provisions of Article 19(7) of the design deliberation subcommittee cannot be a member of the design deliberation committee, it is inconsistent with the Construction Technology Management Act and therefore, it is not binding, therefore, it does not constitute a member of the design deliberation committee of this case on the basis of the above provisions.

As a representative of the Korea Environment Corporation, which is a contracting authority, in this case, the president of the Corporation, as a representative of the Korea Environment Corporation, directly commissioned the defendant as a member of the design advisory committee composed of its subordinate organizations within the design advisory committee and carried out certain matters among its affairs, the validity of the appointment or the performance of the defendant's duties based on this cannot be denied. It is not different because the defendant did not undergo the procedure or form appointed or commissioned as a member of the design advisory committee in addition to the procedure or form commissioned by the president of the Korea Environment Corporation as a member of

4) Examining the above circumstances in light of the legal principles as seen earlier, the Defendant was commissioned as a member of the Design Deliberation Committee of the National Environmental Authority of Korea, which is the contracting authority, and received unfair money or valuables in relation to his duties while carrying out certain duties among the duties of the Design Advisory Committee. This is deemed to have received bribe in relation to his duties as a member of the Design Advisory Committee who is deemed a public official under Article 45 subparagraph 2 of the Construction Technology Management Act.

B. As to the assertion of mistake of fact

1) Relevant legal principles

The acceptance of a bribe refers to the acceptance of money and valuables with the intention of acquiring it. As such, in a case where it is recognized that there was no intention to acquire it, such as accepting a bribe but without being aware that it was a bribe, returning it immediately, or temporarily keeping it at once with the intention to return it in view of an opportunity after the receipt of it, the acceptance of the bribe may not be deemed to have been made. On the other hand, even if the defendant returned it after the receipt of it with the intention of acquiring it, even if he returned it after the receipt of it, it does not affect the establishment of the crime of bribery (see, e.g., Supreme Court Decisions 87Do1472, Sept. 22, 1987; 2006Do9182, Mar. 29, 2007). In determining whether a bribe was received with the intention to acquire it, the circumstances leading up to returning it at any time, whether the opportunity to return it was not returned, and the circumstances leading up to returning it (see, e.g., Supreme Court Decision 2003Do54636.

2) As to the acceptance of bribe from H

According to the court below and the evidence duly adopted and examined by this court, the defendant received KRW 20 million from the C University professor Research Center at H on January 201, 201 to the purport that H was well requested in connection with the deliberation. At the time, the defendant stated that H was "IIIIII would have to make a good design". The defendant called that H would have to find it as his own laboratory around April 201 and around June 201, the defendant called that H would have to return 20 million won to H who visited her laboratory. However, the defendant could not be seen as having been aware of the fact that the defendant would not have received a bribe from the SIII would have been able to immediately return it, but the defendant would not have been able to have been aware of the fact that the defendant would not have received a bribe from the KIII would have been able to have been able to receive the bribe from the KIII would have been return it at the time.

3) On January 201, 201, as to acceptance of bribe from Lman on bribery

원심 및 이 법원이 적법하게 채택하여 조사한 증거들에 의하면, 한국환경공단에서는 2011. 1. 6.경 F 처리시설 공사와 관련한 평가위원들의 명단을 공개하였고, 위 공사의 입찰에 참가하려는 J(후에 '주식회사 K'으로 변경됨)의 직원인 L은 2011. 1. 중순경 및 2011. 1. 하순경 피고인의 주거지 부근에 정차된 차량 안에서 피고인을 만나 1,000만 원씩을 전달하였던 사실, 당시 L은 운전석에 앉고 피고인은 조수석에 앉은 채로 대화를 나누면서 L이 F 처리시설 공사 입찰과 관련하여 잘 부탁한다는 취지로 말을 하였고, 피고인은 '설계를 보고 판단하겠다'는 취지로 말을 하였는데, 피고인이 차량에서 내릴 무렵 L은 1,000만 원이 든 봉투를 피고인의 윗옷 안쪽(안주머니가 아님)에 넣어 주었고, 이에 피고인이 이를 받아들고 갔던 사실, 한편 피고인은 2011. 4. 초순경에도 자신의 교수연구실에서 L으로부터 심의평가에서 잘 봐주어 고맙다는 취지로 1,000만 원을 수수하였던 사실, 그 후 피고인은 2011, 7.경 L에게 '1,000만 원을 돌려줄 테니 그 돈으로 자신이 학회장으로 있는 T학회에 후원을 하라'는 취지로 말을 하고 2011. 7. 27.경 L에게 1,000만 원을 반환하였던 사실을 인정할 수 있는바, 위 인정사실에서 알 수 있는 바와 같이, ① 피고인이 L으로부터 뇌물을 받을 당시 그것이 뇌물인지 알 수 없었다거나 즉시 반환할 수 없을 정도의 상황이었다고는 보이지 아니하는 점, ② 피고인이 뇌물을 수수한 후 반환하기까지의 시간적 간격이 매우 길다고 보이는 점, ③ 피고인이 뇌물의 출처를 분명히 알고 있었던 점 등 피고인이 뇌물을 반환하기 어려운 사정이 특별히 보이지 아니함에도 피고인이 위 기간 동안 뇌물을 반환하려는 적극적인 노력을 하였다고 보기 어려운 점, ④ 피고인은 자신이 담당하였던 심의와 관련하여 입찰에 참가한 업체로부터 합계 3,000만 원을 수수하였고 심의가 종료한 후 자신이 학회장으로 있는 T학회에 후원을 하라는 취지로 말을 하면서 1,000만 원을 반환하였던 점 등에 비추어 보면, 피고인은 일단 영득의 의사로 L으로부터 뇌물을 수수하였다고 볼 것이고, 단순히 일시 보관의 의사로 이를 수령하였다고는 보기 어렵다.다. 양형부당 주장에 대하여 피고인이 C대학교 D부 교수로서 한국환경공단 설계자문위원회 설계심의 분과위원으로 위촉되어 건설업체들의 첨예한 경제적 이해관계가 걸려있는 심의·평가와 관련하여 뇌물을 받은 것으로서 그 비난가능성이 높은 점, 피고인의 이 사건 범행으로 한국환경공단 설계심의 분과위원 업무의 공정성과 공무의 불가매수성 등에 관한 국민의 신뢰가 크게 훼손된 점, 특히 피고인은 자신이 기본설계도서 심의 · 평가를 담당했던 건설업체들로부터 뇌물을 수수한 것이어서 그 죄질이 중한 점, 피고인이 수수한 뇌물의 액수가 적지 아니한 점 등에 비추어 보면, 피고인에 대하여는 그에 상응한 처벌이 불가피하다. 다만, 피고인이 적극적으로 뇌물을 요구한 것은 아닌 것으로 보이는 점, 피고인이 이 사건에 관한 수사가 개시되기 전에 H로부터 받은 뇌물 2,000만 원 전액과 L으로부터 받은 뇌물 중 1,000만 원을 반환하였던 점, 피고인이 이 사건 범행을 뉘우치면서 반성하고 있고, 피고인은 아무런 범행전력이 없는 초범인 점, 그 밖에 피고인의 연령, 성행, 환경, 이 사건 범행경위, 범행 후의 정황 기타 이 사건 변론에 나타난 제반사정을 종합하면, 원심이 피고인에 대하여 선고한 형은 너무 무거워 부당한 것으로 보인다.

3. Conclusion

Therefore, the defendant's appeal of this case is with merit, so the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts constituting an offense and evidence. The summary of the facts constituting an offense and evidence recognized by the court concerning this case is identical to the description of each corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

The point of acceptance of a bribe from H: Imposition of fines and fines under Article 129(1) of the Criminal Act, Article 45 subparag. 2 and Article 5-2 of the Construction Technology Management Act, and Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the point of acceptance of a bribe from L: Comprehensively, Article 2(1)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129(1) of the Criminal Act, Articles 45 subparag. 2 and 5-2 of the Construction Technology Management Act, and Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the penalty heavier than that provided for in the crime of acceptance of bribe against L)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act