[1] The elements for the establishment of the crime of acceptance of bribe under Article 129(1) of the Criminal Act in a case where a public official, without receiving a bribe directly, allows a person to deliver a bribe to another person

[2] In a case where Defendant A, the Navy Chief of Staff, conspired with Defendant B, and received a bribe from Defendant C Group-related companies that supply defense materials by allowing them to pay support payments to Defendant B, the case holding that the judgment below erred by misapprehending the legal principles on recognizing the contents of the bribe received by the Defendants as “economic benefits that become a major shareholder,” not support payments,” and on the ground that the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established

[1] The crime of acceptance of bribe under Article 129(1) of the Criminal Act applies to a public official’s acceptance of a bribe in the course of performing his/her duties. In light of the fact that Article 130 of the Criminal Act provides that the crime of acceptance of bribe shall be punished for the crime of offering a third-party bribery in a case where a public official has a third party deliver a bribe without receiving a bribe directly. In a case where a public official had a third party deliver a bribe to a third party, the crime of offering a third-party bribery shall be established only in the case where a public official directly receives a bribe, such as a public official’s death or representative, and where a public official directly receives a bribe, has a relation that can be assessed as having a public official directly receives

[2] In a case where Defendant A, the Navy Chief of Staff, conspired with Defendant B, and received a bribe by requiring C Group-related companies supplying defense materials to pay support money to Defendant B, and was prosecuted for violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on the ground that the Defendants’ receipt of support money cannot be evaluated as being directly received, the Court held that the Defendants’ establishment of the crime of acceptance of support money by deeming that the Defendants’ receipt of support money does not constitute a simple bribery of support money on the ground that the Defendants’ receipt of support money was not the same as that of the direct receipt of it, and even if Defendant B received support money to a public official or a third party other than the joint principal offender and indirectly gain profits as its shareholders, it cannot be deemed that the Defendants’ receipt of support money is separate from the crime of simple bribery, on the ground that even if Defendant B had a close interest with the company as a shareholder holding 33% shares, it cannot be deemed that the Defendants’ establishment of the crime of acceptance of support money by the company as its principal shareholder without undergoing the procedure of acceptance of the bribe ex officio.

Articles 129 and 130 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); Article 3(1)1 of the former Act on the Regulation and Punishment of Criminal Proceeds Concealment (Amended by Act No. 10201, Mar. 31, 2010); Article 308 of the Criminal Procedure Act

Defendant 1 and two others

Prosecutor and Defendants

Law Firm Geopyeong et al.

Seoul High Court Decision 2015No2305 Decided February 12, 2016

Of the lower judgment, the part on Defendant 1 and Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to the ○○○○○○ Group and the part on Defendant 3 are reversed, and that part of the case is remanded

The Prosecutor's remaining appeals against Defendant 1 and Defendant 2 are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1 and Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to the ○○○○○ Group and Defendant 3’s violation of the Aggravated Punishment, etc. of Specific Crimes

A. As to Defendant 1 and Defendant 2’s ground of appeal No. 1

The allegation in the grounds of appeal in this part is that the court below erred in the misapprehension of legal principles as to admissibility and probative value of relevant evidence and erroneous fact-finding, although there was no fact that Defendant 1 was involved in the act of bribery to ○○○○○○○○○○○○ Group which was found guilty on the grounds that Defendant 1

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, including Nonindicted 1’s statement, the lower court recognized the fact that Defendant 1 participated in the process of receiving the instant support payment by telephone, etc., and did not err by misapprehending the legal doctrine regarding admissibility of evidence, etc., or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

B. As to Defendant 1 and Defendant 2’s ground of appeal No. 2

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted by the lower court, the lower court’s determination that the payment of the instant support payment to Nonindicted Co. 2, etc., who supplied defense materials to Nonindicted Co. 3 was related to the duties of Defendant 1, who was in office as the Navy Chief of Staff, is acceptable. In so determining, the lower court did not err by misapprehending the legal doctrine on business relationship, contrary

C. As to the Prosecutor’s Grounds of Appeal

The crime of acceptance of bribe under Article 129(1) of the Criminal Act applies to a public official’s acceptance of a bribe in connection with his/her duties. In light of the fact that Article 130 of the Criminal Act provides that the crime of acceptance of bribe shall be punished for the crime of offering a third-party bribery in a case where a public official directly solicits a third party to give a bribe without receiving a bribe. In a case where a public official allows a third party to give a bribe, such as in a case where a public official directly receives a bribe or as a representative of a public official, in a case where a public official directly receives a bribe, the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established (see Supreme Court Decision 98Do1234 delivered on September 22, 198, etc.).

The lower court acknowledged the facts as indicated in its reasoning based on its adopted evidence, and found it difficult to evaluate Nonindicted Co. 3’s receipt of support payments from Nonindicted Co. 2, etc. under the social norms, as being directly received by the said Defendants. In so determining, the lower court acquitted the Defendants of this part of the facts charged on the premise that the establishment of the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the subject of the bribe and the amount of profit in the bribery, thereby adversely affecting the conclusion of

D. As to Defendant 1 and Defendant 2’s ground of appeal No. 3

(1) The prosecutor prosecuted this part of the charges on the acceptance of the instant support money on the premise that the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established, but the court below found the Defendants not guilty of the charges on the ground that the said Defendants cannot be evaluated as having received the support money directly under social norms, as seen above, and held the Defendants guilty of the crime of bribery, on the ground that ex officio without going through the amendment of the indictment, deeming the contents of the bribe received by the said Defendants to be “economic benefits obtained as a major shareholder,” rather than

(2) However, we cannot agree with the judgment of the court below for the following reasons.

The Criminal Act separates the crime of acceptance of bribe under Article 129(1) and the crime of providing third-party bribery under Article 130 according to the scope of punishment. As seen earlier, the elements of the crime are different in relation to the scope of punishment. As long as Nonindicted Co. 3’s receipt of support money cannot be evaluated as the same as that of receiving directly by Defendant 1 and Defendant 2, it cannot be deemed that the crime of simple acceptance of support money is established on the ground that Nonindicted Co. 3 received support money in the position of a public official or a third-party other than the joint principal offender, even if Defendant 2 indirectly gains profits as a shareholder, it cannot be deemed that the above Defendants were the subject of the crime of simple acceptance of support money on the actual economic profits as the subject of the bribe. Even if Defendant 2 had a close interest with Nonindicted Co. 3 as a shareholder holding 33% shares, so long as Nonindicted Co. 3’s receipt of support money cannot be evaluated as identical to that of the above Defendant, it cannot be deemed that the crime of offering of support money constitutes simple bribery under the Criminal Act.

(3) Nevertheless, the court below found the above Defendants to have established the crime of acceptance of bribe under Article 129(1) of the Criminal Act with respect to “economic benefits obtained as major shareholders” as stated in its holding, and found them guilty ex officio. In so doing, the court below erred by misapprehending the legal principles as to the contents of bribe or the subject of attribution, which affected the conclusion of the judgment. The grounds of appeal by Defendants 1 and 2, including the purport of pointing this out, are justified.

2. As to Defendant 2’s violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

The summary of this part of the facts charged is on the premise that the instant support payment constitutes criminal proceeds of bribery, such as the facts charged, under the premise that the instant support payment falls under the criminal proceeds of bribery, and that the said Defendant would have pretended about the disposal of criminal proceeds by means of remitting money received as a bribe to a disguised purchase agency, and returning it to the borrowed account.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court acquitted the Defendant of this part of the facts charged on the premise that the instant support payment does not constitute criminal proceeds as stated in the facts charged. In so doing, contrary to the Prosecutor’s grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment

3. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to Nonindicted 4

The conviction in a criminal trial shall be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no such proof, the conviction cannot be judged even if there is a doubt of guilt against the defendant (see Supreme Court Decision 2006Do735, Apr. 27, 2006, etc.).

The lower court, on the grounds indicated in its reasoning, determined that there is a reasonable doubt as to the credibility of Nonindicted 4’s statement, the donor, and the remaining evidence alone, cannot be deemed as proven without reasonable doubt, and sentenced Defendant 1 not guilty of this part of the facts charged.

The Prosecutor’s allegation in this part of the grounds of appeal is merely merely a dispute over the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the lower court, and further, even after examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned judgment did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence contrary

4. Scope of reversal

Of the lower judgment, the part on Defendant 1 and Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) relating to the ○○○○○○○○○ Group should be reversed on the ground as seen earlier. Since the grounds for reversal are common for Defendant 3’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), the part on the facts charged against Defendant 3 among the lower judgment should also be reversed in accordance with Article

5. Conclusion

Therefore, without examining Defendant 3’s assertion of unfair sentencing, the part concerning Defendant 1 and Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to ○○○○○○○ Group and the part concerning Defendant 3 are reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s violation of the Act on the Regulation and Punishment, etc. of Criminal Proceeds Concealment corresponding to the remaining part, and prosecutor’s appeal on Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to Nonindicted 4 is dismissed

Justices Kim So-young (Presiding Justice)