[1] Whether the duties of officers and employees of the Seoul subway Corporation constitute "the duties of public officials" in the crime of good offices and bribery under Article 132 of the Criminal Code (affirmative), and the meaning of "public officials taking advantage of their status in the crime of good offices and bribery"

[2] The method of calculating the amount of acceptance of bribe where a public official invited a third party and received entertainment at the same time

[1] Article 83 of the Local Public Enterprises Act provides that the officers and employees of a local public corporation shall be appointed as public officials in the application of Articles 129 through 132 of the Criminal Act. Since the Seoul subway Corporation is one of the local public corporations to which the above provision applies, if the defendant received a bribe in relation to the referral of matters belonging to the duties of the officers and employees of the Seoul subway Corporation, it constitutes Article 132 of the Criminal Act. Meanwhile, the crime of mediation and acceptance of bribe requires that the public official take over, demands, or promises a bribe in relation to the referral of matters belonging to the duties of other public officials by taking advantage of his status, and the "public official taking advantage of his status" in this context refers to a case where a public official uses a private relationship such as friendship, relationship of relatives, etc., but it constitutes a case where a public official uses his status which is legally or practically affected by other public officials, and there is no special relation such as relationship

[2] In a case where the defendant gives entertainment along with the accepter and the accepter has paid the amount of the bribe, the defendant's acceptance amount should be recognized as the amount of the accepter's acceptance, first of all, by considering the defendant's expenses required for the accepter's expenses and the expenses consumed by the accepter's expenses. If the amount of the bribe for each person is unclear, it should be equally divided and recognized as the amount of the accepter's acceptance. In a case where the defendant receives entertainment with the third person's invitation at the place where the defendant receives entertainment, unless there are special circumstances such as a public official who receives entertainment in a separate position as the defendant, the third person's third person's acceptance should also be included in the expenses for the contact with the defendant, and the amount of the accepter's acceptance shall be regarded as the amount of the defendant's acceptance.

[1] Article 132 of the Criminal Act, Article 83 of the Local Public Enterprises Act / [2] Articles 129 and 134 of the Criminal Act

[1] Supreme Court Decision 92Do532 delivered on July 23, 1991 (Gong1991, 2278), Supreme Court Decision 93Do1056 delivered on May 8, 1992 (Gong1992, 1920), Supreme Court Decision 94Do852 delivered on July 13, 1993 (Gong1993Ha, 231), Supreme Court Decision 94Do852 delivered on October 21, 1994 (Gong194Ha, 3155), Supreme Court Decision 94Do2687 delivered on January 12, 195 (Gong195, 937), Supreme Court Decision 9Do1979 delivered on June 25, 199 (Gong1995, 97Sang, 197; 97Do1979 delivered on July 19, 197)

Defendant 1 and one other

Defendants

Law Firm Slun Law Firm, Attorney Park Jong-chul

Seoul High Court Decision 99No1802 delivered on November 16, 1999

All appeals are dismissed.

1. As to Defendant 1’s ground of appeal

A. The lower court found Defendant 1 as having received money and valuables from Nonindicted 1 to Nonindicted 1, 7, and received money and valuables from Nonindicted 1, 7, and received money and valuables from Nonindicted 1, 7, and received money and valuables from Nonindicted 1, 8, 97, 925, and received money and valuables from Nonindicted 1, 7, and received money and valuables from Nonindicted 1, 8, 9, 197, 9, and 9, as stated in the Seoul Special Metropolitan City List of Crimes No. 1, 3, 198, and 9, 1, 3, 3, 3, and 9, 3, 196, and 9, 1,6, 3, 3, and 9, 3, 196, 3, and 9, 1,6, 3, 3, and 1,6, 3, 196, 3, and 1,6, 196.

B. Article 83 of the Local Public Enterprises Act provides that the officers and employees of a local public corporation shall be appointed as public officials in the application of Articles 129 through 132 of the Criminal Act. Since the Seoul subway Corporation is one of the local public corporations to which the above provision applies, if the defendant received a bribe with respect to the referral of matters belonging to the duties of the officers and employees of the Seoul subway Corporation, it constitutes Article 132 of the Criminal Act. Meanwhile, the crime of mediation and acceptance of bribe requires that a public official takes over, demands, or promises a bribe with respect to the referral of matters belonging to the duties of other public officials by taking advantage of his/her status. Here, the "use of his/her status" refers to a case where a public official uses a private relationship such as friendship, relationship of relatives, etc., but it constitutes a case where a public official uses his/her status, which is legally or practically affected by other public officials, and it does not require any special relationship such as relationship, cooperation, supervisory authority, etc. among them (see, e.g., Supreme Court Decision 9Do1900, Jun.).

In comparison with the relevant evidence in these legal principles, the lower court’s finding of facts is justifiable. Furthermore, the lower court’s determination that the said Defendant was in a position to exercise de facto influence over the duties of relevant public officials belonging to the subway Corporation in Seoul, or the president, and that money and valuables and entertainment received in relation to the support for small and medium enterprise fostering funds were in accord with their duties, and that the said Defendant was aware of the bribe of each crime is just. In so doing, the lower court did not err by misapprehending the legal doctrine on the elements of the crime of good offices or bribery, or by failing to exhaust all necessary deliberations, as otherwise alleged in the ground of appeal.

C. According to the evidence, the court below acknowledged the fact that, at the time of the crime of the instant good offices and bribery, when the said defendant made a golf promise and contacted Nonindicted Party 1, Nonindicted Party 1 disbursed the expenses required for the golf club for the said defendant's conduct which was going in the golf club. In light of the relationship between the said defendant and the attending party, the court below determined that the amount of bribery of the said defendant constituted the total amount excluding the part required for Nonindicted Party 1 and Nonindicted Party 2.

In a case where the defendant gives entertainment along with the mineer and paid the amount required for the acceptance of the bribery, the defendant's acceptance of the bribery amount should first be recognized, and the amount of the acceptance should be equal to the amount of the acceptance of the bribe by the defendant, and the amount of the acceptance should be equal (see, e.g., Supreme Court Decision 76Do1982, Mar. 8, 197). In a case where the defendant voluntarily received the acceptance of the bribe by the third party on the job where the defendant received entertainment, barring special circumstances such as where the third party is a public official in a separate position with the defendant, the expenses required for the third party's acceptance should be included in the expenses required for the acceptance of the defendant's acceptance of the bribe, and the amount should be recognized as the amount of the acceptance of the bribe by the defendant.

In the same purport, the judgment of the court below that the total amount of the entertainment expenses of this case, excluding the part spent by Nonindicted Party 1 and 2 for his work, is the bribery amount of Defendant 1, is just and there is no error in the misapprehension of legal principles as to the calculation of the bribery amount, or in the incomplete deliberation, as otherwise alleged in the ground of appeal.

2. As to Defendant 2’s ground of appeal

The court below held that the above defendant 1 had a title trust agreement with the defendant 2 to make a title trust agreement with the defendant 2 on March 29, 1996, and that he violated the Act on the Registration of Real Estate under Actual Titleholder's Name that he had made a registration of transfer of ownership with respect to 1/4 of 60 to 60 m218m2 in Yeongdeungpo-gu Seoul Metropolitan Government on March 29, 1996, on the violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, the court below held that the defendant 1 and 3 jointly purchased shares of 1/2 in the above land under the name of the title trustee even though they jointly purchased shares of 1/2 in the above land, and that it does not affect such title trust relationship even if the defendant 2, who managed the above land for domestic affairs, bears some public charges, etc., compared with the records, the court below's finding of facts and determination are justified, and there is no violation of law by failing to exhaust all necessary deliberations as alleged in

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)