[1] The method of determining the credibility of a statement made by a person who received and delivered a bribe in the course of the bribery where the person who was designated as the underwriter denies the fact of the bribery at the time of the bribery and there is no objective material to support the bribery and there is no other evidence

[2] The meaning of "matters belonging to the duties of public officials" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[3] The case affirming the judgment of the court below which acquitted the defendant, who is a doctor of the same hospital, on the grounds that even if the professor of the Seoul National University concurrently holds the office of the doctor of the Seoul National University Hospital, the substance of the medical treatment as a doctor, the nature of his duties, or the character of his official duties, etc.

[1] Articles 129 and 133 of the Criminal Act, Article 308 of the Criminal Procedure Act, Article 2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [3] Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 11 of the Establishment of Seoul National University Hospital, Article 15 (2)

[1] Supreme Court Decision 200Do5701 Decided June 11, 2002 (Gong2002Ha, 1720) Supreme Court Decision 2005Do4411 Decided September 29, 2005 / [2] Supreme Court Decision 2001Do670 Decided May 31, 2002 (Gong2002Ha, 1602) Supreme Court Decision 2005Do1420 Decided June 15, 2006

Defendant 1 and one other

Prosecutor

Law Firm Lee & Lee (Attorney Lee Jong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2004No2129 delivered on February 18, 2005

The appeal is dismissed.

1. Regarding ground of appeal No. 1

The conviction in a criminal trial shall be based on strict 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 the conviction shall not be made unless such doubt is ruled out. In the case of bribery, in a case where the defendant, who was designated as the bribe, denies the fact of the bribery and there is no real evidence, such as objective materials to support it, the statement made by the lender and the sender shall be admissible, and the credibility should be ensured to exclude a reasonable doubt as well as the admissibility of evidence. In determining the credibility of the statement, it shall also be examined the rationality, objective reasonableness, consistency before and after the statement itself (see Supreme Court Decision 200Do5701, Jun. 11, 2002, etc.).

Examining the record in light of the above legal principles, the court below is justified in maintaining the first instance court that acquitted the Defendants on the ground that it is not sufficient to recognize the charges of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and the crime of offering of bribe on the grounds of its stated reasoning, such as the lack of consistency in the statements made by Defendants 2 and 1 by each prosecutor of the prosecution, and on the grounds that the entries in the pocket book that was seized are insufficient to recognize the facts charged for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

2. Regarding ground of appeal No. 2

"Matters belonging to the duties of public officials" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes include not only the duties under the jurisdiction of public officials themselves, but also the acts closely related to their duties or the acts of performing duties in practice or in fact engaged in such duties. However, whether specific acts belong to the duties of public officials shall be determined by taking into account the practical aspects of whether they belong to the duties of public officials and whether they are reasonably necessary in relation to the duties of public officials in addition to the formal aspects that are performed as part of public duties (see Supreme Court Decision 201Do670, May 31, 2002, etc.).

The court below acknowledged that Defendant 1 received KRW 30 million from Nonindicted 1 on June 202, 202 upon receipt of instructions from Defendant 2 as well as Defendant 1, and that such instruction was offered as consideration for providing convenience in the course of surgery by introducing Nonindicted 2 as professors of Seoul University and professors of Seoul University and non-indicted 3, who are doctors of Seoul University, as their principal doctors, to provide them with convenience in the course of surgery. Notwithstanding Article 64 of the State Public Officials Act, public educational officials working at Seoul University are allowed to hold concurrent offices at Seoul University, despite the fact that it is necessary to carry out its intended business, the head of Seoul University is ordered to hold concurrent offices at the request of the president of Seoul University, and that there is no problem in the organization and remuneration of faculty members of Seoul University, namely, professors of Seoul University and teachers of Seoul University who hold concurrent offices, who are public officials, as prescribed by the articles of incorporation of Seoul University, and that there is no problem in the operation of public officials and remuneration of Seoul University Hospital, as prescribed by the articles of incorporation of Seoul University.

In light of the relevant regulations and records, the above measures of the court below are just and acceptable as they are in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as alleged.

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)