In a case where Gap who submitted a written complaint to the police station was present at the police station and provided the police officer Eul with 45,00 won 1 rice millet (45,00 won) through the staff and returned it to the police officer Eul, and then reported to the head of the relevant agency, the case holding that Gap's act was recognized as an act of providing prohibited money and valuables, etc. to public officials related to duty, and that Gap's act cannot be deemed as being provided for the purpose of smooth performance of duties, social intercourse, or assistance, or allowed pursuant to social rules, and imposition of an administrative fine equivalent to two times the value of money and valuables

In a case where Gap who submitted a written complaint to the police station was present at the police station and provided the police officer in charge with 45,00 won for 45,00 won for rice illness with 1,00 won for employees before an investigation day, and the police officer returned it to Eul and reported to the head of the relevant agency, the case holding that Gap and Eul imposed a fine for negligence equivalent to two times the value of the provided money, goods, etc., considering all the circumstances, where Gap and Eul are related to duties, and public officials, etc. who are related to duties prohibited under Article 8 (5) of the Act on the Prohibition of Improper Solicitation and Graft, etc. from Receiving money, goods, etc. are prohibited from receiving pursuant to Article 8 (2) of the same Act; and Gap's money, goods, etc. provided by the police station did not fall under cases where the provision was made for smooth performance of duties prescribed in Article 8 (3) 2 of the same Act, social rules prescribed in Article 8

Articles 8(3)2 and 8, 23(5)3, and Article 17 [Attached Table 1] of the Enforcement Decree of the Act on the Prohibition of Acceptance of Improper Solicitation and Valuables, Etc., and Article 8(3)2 and 8, and Article 23(5)3 of the Improper Solicitation and Graft Act

Offenders

A person who violates an administrative fine shall be punished by 90,000 won.

1. Facts of recognition;

The records show the following facts.

A. On September 1, 2016, the offender submitted a written complaint to the Chuncheon Police Station stating that “Gla○○ acquired KRW 17 million from the offender (the offender) in the name of borrowed money without any intention or ability to repay, and thus punished Kim○ as fraud.” The offender committed an offense at the police station around 19 September 29, 2016, taking charge of the investigation of the instant accusation case at the rate of time between Nonparty 1 and telephone, and was present at the police station on September 29, 2016 to undergo an investigation.

B. On September 28, 2016, the offender: (a) caused Nonparty 2, an employee of an enterprise that he/she operates, to deliver Nonparty 1, a box of rice base ( approximately 40§¯, about 30cm in length, about 30cm in length, hereinafter “the instant money and valuables”) equivalent to KRW 45,00 to Nonparty 1’s Inspector.

C. On September 28, 2016, Nonparty 2 asked Nonparty 2 to talk at the parking lot of the Chuncheon Police Station, stating that “I are on the parking lot for the police station by sending rice with Nonparty 1’s office,” according to the direction of the complainant, Nonparty 2 called “I are on the part of Nonparty 1’s office.”

D. The reason why Nonparty 1 sent the instant money and valuables to Nonparty 2 at the parking lot of the Chuncheon Police Station at the above temporary border and determined that it is necessary to confirm the fact that Nonparty 2 did not return the money and valuables without any clear reply, and that Nonparty 1 received the instant money and valuables from the violator and confirmed the fact that he provided the instant money and valuables via Nonparty 2. The reason why Nonparty 1 returned the instant money and valuables to the violator using Kwikset service at around 15:00 on the same day, Nonparty 1 reported the fact that he provided the said money and valuables in writing to the chief of the Chuncheon Police Station, the head of the relevant agency, in accordance with the procedure for reporting as provided by Article 9(1)1 of the Improper Solicitation and Graft Act (hereinafter “Improper Solicitation and Graft Act”).

E. After investigating the facts related to the provision of the instant money and valuables, the head of the Chuncheon Police Station notified this court of the request for the imposition of an administrative fine on October 18, 2016 pursuant to Article 23(7) of the Improper Solicitation and Graft Act, deeming that the act of offering money and valuables by the offender violates Article 8(5) of the Improper Solicitation and Graft Act.

2. Relevant statutes;

The main contents of the Improper Solicitation and Prohibition Act in relation to the instant case are as follows:

(2) No public official, etc. shall receive, request, or promise any money, goods, etc. not exceeding the amount prescribed in paragraph (1), regardless of whether it is a quid pro quo or not, in connection with his/her duties. (4) No public official, etc. shall receive, request, or promise any money, goods, etc. which are prohibited from receiving by a public official, etc. pursuant to paragraph (1) or (2) (hereinafter referred to as “money, goods, etc. prohibited from receiving”) in connection with his/her duties.

3. Determination

A. Whether Article 8(5) of the Improper Solicitation and Graft Act is violated

According to Article 8 (2) of the Improper Solicitation and Solicitation Act, public officials, etc. shall not receive, request, or promise money, goods, etc. below the amount prescribed in paragraph (1), regardless of whether or not they are quid pro quo in connection with their duties, and according to paragraph (5) of the same Article, no person shall provide public officials, etc.

In the instant case, the offender was in the position of the complainant who filed a complaint stating that he/she would be punished for fraud, and the offender provided the instant money and valuables to Nonparty 1 who was in charge of investigation of the instant case during the investigation of the accusation case. Therefore, the offender and Nonparty 1 can be deemed to have a duty relationship. Therefore, the act of offering the instant money and valuables constitutes an act of offering the prohibited money and valuables to public officials, etc. related to the duty prohibited under Article 8(5) of the Improper Solicitation and Solicitation Act.

Therefore, it can be recognized that a violator violates Article 8(5) of the Improper Solicitation and Graft Act.

B. Whether it constitutes an exception to Article 8(3) of the Prohibition of Requests Act

Article 8(3) of the Improper Solicitation and Graft Act provides exceptions to prohibited money and valuables, etc. in each subparagraph. In relation to this case, first, in relation to whether it constitutes money and valuables, etc. (Article 2) within the scope of value prescribed by Presidential Decree, such as food, congratulatory investigation expenses, gifts, etc. provided for the smooth performance of duties or for the purpose of social intercourse, funeral service, or assistance, second, whether it constitutes money and valuables, etc. (Article 8(8).

1) First, we examine whether the instant money and valuables fall under “money and valuables, etc. within the value prescribed by Presidential Decree, such as food, congratulatory performance of duties or funeral, funeral or relief,” under Article 8(3)2 of the Improper Solicitation and Graft Act.

According to Article 8(3)2 of the Improper Solicitation and Graft Act and Article 17 [Attachment 1] of the Enforcement Decree of the same Act, gifts not exceeding KRW 50,00,00 provided for the purpose of smooth performance of duties or private intercourse, funeral or assistance does not constitute prohibited money and valuables, etc. In order to fall under the exception of prohibited money and valuables, there should be “the purpose of smooth performance of duties, social intercourse, funeral or assistance.”

In the instant case, the offender became aware of the facts charged by Nonparty 1 while taking charge of Nonparty 1’s accusation case. In light of the content of duties performed by a public official, etc., who is in charge of investigating a fraudulent case against Kim○○, and the relationship between the offender and the public official, etc., the offender cannot be deemed to have the purpose of smooth performance of duties, social intercourse, or assistance.

Therefore, this case’s money and valuables cannot be seen as an exception under Article 8(3)2 of the Improper Solicitation and Graft Act.

2) Next, we examine whether the instant money and valuables constitute “other money and valuables, etc. permitted pursuant to other statutes, standards, or social rules” under Article 8(3)8 of the Improper Solicitation and Graft Act (hereinafter “instant provision”).

A) The meaning of social norms

In a case where no specific scope of definition or inclusion of terms used in a statute itself is clearly defined, the statutory term ought to be interpreted by comprehensively taking into account the overall structure, purport, and purpose of the statute, the form and content of the provision in question, and relevant statutes (see, e.g., Supreme Court en banc Decision 2015Du51668, Jan. 28, 2016). Likewise, as the instant provision uses the concept of social rules, Article 20 of the Criminal Act on the grounds for the exclusion of illegality provides that “an act, etc. committed by an act or duty, or any other act that does not contravene social norms shall not be punishable.” Article 20 of the Criminal Act on the grounds for the exclusion of illegality provides that “The same term shall not be punishable.” The Supreme Court has consistently interpreted the same term, and the social rules of this case may also be interpreted uniformly (see, e.g., Constitutional Court en banc Decision 2015Hun-Ma236, 412, 6673 (Consolidated Decision)).

"Acts which do not violate social norms" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain acts constitute legitimate acts which do not violate social norms and thus, are excluded from illegality should be determined individually under specific circumstances, by rationally and reasonably considering the following circumstances (see Supreme Court Decision 98Do2389 delivered on April 25, 2000). In addition, in cases where it can be deemed that such acts are within the scope of social order which is naturally created as a kind of ordinary life, which is a kind of customary or ordinary activity, and thus, it can be deemed that illegality is eliminated as a kind of formal or ordinary activity, but it is necessary to pay attention to recognizing the rejection of illegality for such reason (see Supreme Court Decision 2007Do218 delivered on April 27, 2007).

In light of the meaning and method of determination of the social rules stipulated in Article 20 of the Criminal Act, the concept of social rules stipulated in the provision of this case, which is indivisiblely connected to social ethics and social order, based on the overall legal order, shall be deemed as being an integrally connected to social order. Therefore, in order to recognize the elimination of illegality by falling under the social rules, it is insufficient to simply have certain practices, and such practices should be acceptable in light of social ethics, which serves as the whole spirit of legal order or its behind.

In addition, in order to examine whether the number of money and valuables in this case constitutes social norms according to the aforementioned legal principles, it is necessary to comprehensively examine the legislative intent of the Improper Solicitation and Graft Act and the meaning of the prohibition clause on acceptance of money and valuables, the relationship between the money and goods provider and the public officials, the relationship between the money and goods provider and the public officials, the contents and value of the money and valuables, the time and place of receipt, the circumstances of receipt, etc.

B) Legislative intent of the Act on Prohibition of Requests and the significance of the provision prohibiting acceptance of money and valuables

The Republic of Korea has achieved an exceptional economic development and social change in the world, but the integrity of the society has not increased to a level consistent with the economic development. The public corruption awareness index of the International Transparency Organization belongs to the lowest authority among the member countries of the Organization for Economic Cooperation and Development ( OECD). The Act on the Prohibition of Requests was enacted to effectively resolve the corruption problem. The Act prohibits improper solicitation itself in order to eradicate the illegal solicitation that obstructs the fair performance of public officials, etc., and enables public officials, etc. to “in the event there is no price” to “in the absence of price.” The Act on the Prohibition of Requests aims to ensure the fair performance of public officials, etc. and to ensure the public trust in the public institutions (see Constitutional Court en banc Decision 2015Hun-Ma236, 412, 662, 673 (Consolidated) decided July 28, 2016).

The purpose of the Improper Solicitation and Graft Act is to ensure the fair performance of duties of public officials and the trust of the people of public institutions by prohibiting them from receiving or receiving money and valuables from public officials, etc. (Article 1). To achieve this purpose, the State shall endeavor to create a culture of public service that does not accept and accept improper solicitation and money and valuables (Article 3(2)) in order to ensure the fair and clean performance of duties of public officials (Article 3(1)). In addition, Article 3(2) provides that public officials, etc. shall perform their duties in a fair and clean manner without any influence on private interest (Article 4(1)), and public officials, etc. shall not be given preferential treatment or discrimination against public officials, etc. in relation to their duties (Article 4(2)).

It is also very important to ensure that public officials, etc. perform their duties in a fair and integrity manner as prescribed by Acts and subordinate statutes, as well as ensuring the trust that public officials, etc. perform their duties in a fair and integrity manner. If public officials, etc. having business relationship receive improper solicitation or money, etc. in the course of performing their duties, they will undermine the fairness and objectivity in performing their duties. The Act on the Prohibition of Solicitation and Graft regulates “Prohibition of Improper Solicitation” and “Prohibition of Provision of Money, etc.” in separate chapters, respectively. In other words, Chapter 2 regulates public officials, etc. as to sanctions and reporting procedures in cases of violation, and Chapter 3 regulates sanctions and reporting procedures in cases of violation.

In particular, Article 8(1) provides that “public officials, etc. shall not receive, request, or promise money or valuables exceeding one million won at one time from the same person, regardless of whether they are related to their duties, and the name of donation, support, donation, etc., in excess of one million won at one time, or three million won at one fiscal year, regardless of whether they are related to their duties.” Article 8(2) provides that “public officials, etc. shall not receive, demand, or promise money or valuables exceeding the amount prescribed as above from the same person without asking whether they are related to their duties.” Article 8(2) provides that “public officials, etc. shall not receive, demand, or promise money or valuables, etc. less than the amount prescribed in paragraph (1) regardless of whether they are related to their duties, shall not receive, demand, or promise money or valuables, etc.” (see Article 8(1)).

In addition, Article 8(5) provides that "no person shall provide, promise or express his/her intent to, or offer to, money or goods prohibited by public officials, etc. pursuant to paragraph (1) or (2) to public officials, etc." and prohibits the act of offering money or goods prohibited by public officials, etc.

In cases where public officials, etc. provide money and valuables, etc. in violation of Article 8(1) and (5), criminal sanctions against a fine of not more than three years or not more than 30 million won (Article 22(1)3), Article 8(2) and (5) shall be imposed on a public official, etc. who provides money and valuables, etc. in violation of Article 8(1) and (5) (Article 23(5)3).

In addition, in order to ensure the effectiveness of the law, if public officials receive the prohibited money and valuables, etc., they impose the duty to report in writing to the head of the agency to which they belong without delay (Article 9), and any person can report the violation (Article 13).

As such, the core contents of Article 8 of the Improper Solicitation and Graft Act prohibiting the receipt of money and valuables do not require the determination of existence of improper solicitation or the determination of quid pro quo in the process of receiving money and valuables, unlike the existing bribery. The purpose of these provisions is to guarantee the fairness and integrity of the performance of duties of public officials, etc. and to secure the trust of the performance of duties of public officials, etc. as seen earlier.

C) Whether the provision of the instant money and valuables constitutes social norms

In full view of the following circumstances revealed through the facts and records seen earlier, the act of offering money and valuables in this case cannot be deemed to have been permitted pursuant to the social norms.

Among the duties of police officers, the investigation of a crime, in particular, the investigation of a complaint case, in a neutral and objective position, is highly necessary to identify the authenticity of the complainant's statement and fairly investigate the case. The police officer in charge of a complaint case may investigate whether the complainant's statement conforms to objective facts, and if the contents of the complainant's statement are false, the police officer in charge of the complaint case may investigate whether the complainant's statement corresponds to objective facts under Article 156 of the Criminal Act. If the complainant's statement as a result of the investigation conforms to objective facts, the defendant can be the defendant in the future in the criminal trial according to the result of the investigation,

However, the offering of money and valuables to the police officer in charge during the investigation of the accusation case filed by the complainants is sufficient from the standpoint of the accused or a third party to cause doubts about the fairness of the investigation.

In particular, in the instant case, the complainant who requested the investigation of the instant case to the police officer in charge of the investigation of the said case during the investigation process, delivered the instant money and valuables to the police officer via Nonparty 2 through Nonparty 2 prior to the day he was present at the police station and investigated, and the value thereof is equivalent to 45,000 won. Considering the time and circumstances of providing such money and valuables, the value of the money and valuables, etc., the act of offering money and valuables by the offender is an act that may undermine the fairness, integrity, and trust of the investigation, and thus violates the prohibition of the Improper Solicitation and Graft Act

In the process of factual verification related to the act of offering money and valuables at the Chuncheon Police Station, the offender stated that “the police officer was aware of the fact that he works at the latest, and was in a stimulous manner.” On the other hand, it cannot be ruled out that the instant money and valuables were provided to public officials, etc. related to his duties in principle, and the existence of improper solicitation or quid pro quo is not entirely demanded. In other words, the intent to recognize the act of violation of Article 8(5) and (2) of the Improper Solicitation and Graft Police Station is sufficient and it does not require any subjective constituent elements such as the purpose of the improper solicitation or awareness of quid pro quo. In particular, the offender’s act of offering money and valuables to public officials related to his duties is not likely to undermine trust on the fairness and integrity of criminal investigation from a social point of view, even if the offender’s act of offering money and valuables could not be seen as detrimental to the trust of criminal investigation, the degree and degree of duty relationship between the police officer and the offender, etc., as seen earlier.

(c) Amount of administrative fines;

Article 23(5) of the Improper Solicitation and Graft Act provides that an administrative fine shall be imposed in an amount equivalent to two to five times the value of money, goods, etc. related to the violation. The specific amount of money, goods, etc. within the scope of two to five times the value of money, goods, etc. may be determined by comprehensively taking into account the contents and degree of duties of public officials, etc., personal relationship between the parties who received the money, goods, etc., personal relationship between the parties who received the money, etc.

It is necessary to impose a fine for negligence equivalent to twice the value of money and valuables, etc. on the violator, taking into account the following: (a) the money and valuables in this case are provided to police officers in charge of investigation that require high fairness and integrity despite the fact that the violator filed a complaint; (b) the value of the money and valuables in this case is not relatively large as 45,00 won, and there is no high possibility of realization; and (c) the money and valuables in this case are immediately returned to the violator and the money and valuables are not ultimately attributed to the police officer in charge, taking into account the fact that the money and valuables in this case are not immediately returned to the violator, and the money

4. Conclusion

For the same reason, Article 23(5)3, Article 8(5) and (2) of the Act on the Regulation of Violations of Public Order, and Article 36 and Article 44 of the Act on the Regulation of Violations of Public Order shall be decided as above.

Judges Lee Lee-hee