2019Do11766 on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

Article 18 (Loss Caused by National Treasury, etc.)

The violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) /

Aggravated Punishment, etc. of Specific Crimes, etc., of the changed primary crime

Violation of the Act (Loss of National Treasury, etc.) and the name of recognized conjunctive crime.

【Occupational Embezzlement】

A.

Prosecutor

Attorney B (Korean National Assembly)

Seoul High Court Decision 2018Do2150 Decided July 25, 2019

November 28, 2019

Of the judgment of the court below, the guilty portion (including the acquittal portion of the reasons) and the acquittal portion of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) around September 2016 are all reversed, and the case is remanded to the Seoul High Court.

The Prosecutor's remaining appeals are dismissed.

The grounds of appeal are examined.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes relating to the money received by the Defendant (hereinafter “Aggravated Punishment, etc.”) (Bribery)

A. The judgment of the court below

For the reasons indicated in its reasoning, the lower court, on the grounds indicated in its reasoning, refers to the special project cost (hereinafter referred to as "special project cost") for the Defendant from May 2013 to September 2016 by the head of C head (hereinafter referred to as the "head of C head").

The C head of the agency did not seem to have delivered the special project cost to deliver the consideration, and the parties did not seem to have considered the said funds as a bribe, and found that they were not guilty of all the facts charged.

B. Judgment of the Supreme Court

1) Legal principles

Bribery does not require a special solicitation to recognize the bribery of money and valuables received, since the fair performance of duties by a public official and the trust in society and the impossibility of performing such duties are protected, and there is no need to do so. In addition, money and valuables are sufficient to have been received in connection with his duties and there is no need to have an individual job act or a quid pro quo relationship (see Supreme Court Decision 2001Do3579, Oct. 12, 2001, etc.). Whether a certain benefit received by a public official constitutes a bribe is an unreasonable benefit in relation to his duties or her quid pro quo, such as the contents of the relevant public official’s duties, the relationship between a job provider and a benefit provider, the degree of benefits, the circumstances and timing of receiving such benefits, etc. In light of the fact that the bribery of a public official’s official’s performance of duties and the protection of the interest of the society’s trust in performing such duties and the purchase of such duties, it is clearly probable that the public official received money and valuables from a public official was given 9701.

In addition, the crime of embezzlement is not established if the receipt of money acquired through the crime between co-principals is not only an internal distribution of the money acquired through the crime among co-principals. Whether the given money is deemed a bribe or not should be objectively assessed and determined by comprehensively taking into account the intent of the parties to grant and receive the money, the amount of the received money, the interval between the embezzlement and the receipt of the money, the time difference between the receipt and the receipt, the place and method of receipt, etc. (see Supreme Court Decisions 94Do3346, Feb. 25, 1997; 94Do3346, Oct. 107).

12. See, e.g., Supreme Court Decision 2005Do7112 decided Feb. 1, 2005

2) The sum of KRW 3.3 billion from May 2013 to July 2016

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and evidence duly admitted, the lower court did not err in its judgment that found the Defendant not guilty of this part of the facts charged, contrary to what is alleged in the grounds of appeal, by misapprehending the legal doctrine on the relevance to duties in the crime of bribery, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The following reasons are as follows. Around May 2013, the Defendant instructed G to be provided with the budget support of the C institution (hereinafter “C institution”). D embezzled KRW 60 million in total from May 2013 to April 2014, and provided the Defendant with the special project expense amounting to KRW 1.9 billion. After that, E and F, the head of the relevant agency, embezzled the total amount of KRW 80 million, and KRW 1.9 billion from July 2014 to July 2016, which was directly demanded by the Defendant.

H As a result, the C head of the C institution is a person with authority to direct, supervise, and take personnel affairs. The Defendant directed the head of the C institution to embezzled and deliver C institution funds to the head of the C institution as such H, and received a subsidy from the head of the C institution. The C head of the C institution embezzled the special project cost and granted the Defendant the embezzled money in order to comply with the Defendant’s instructions.

B) Comprehensively taking account of these circumstances, there was a conspiracy between the Defendant and the head of C in which both the Defendant and the head of C embezzled funds to vest in the Defendant, and accordingly, the embezzlement and delivery of this part of the special project cost is deemed to have been made. Although the Defendant did not directly perform the act of embezzlement, the Defendant instructed the head of C to commit the crime in a superior and powerful position to the head of C, and received this portion of the special project cost from the head of C. Ultimately, the Defendant is merely an internal distribution of the money that some of the accomplices acquired in the course of embezzlement by actively participating in the embezzlement. Accordingly, it is difficult to view this part of the special project cost delivered by the Defendant as a bribe, and it is difficult to deem that the Defendant had an intention to commit a bribe, and thus, it is not constituted a crime of violation of the Specific Crimes Aggravated Punishment Act (Bribery). The reasoning of the lower court’s reasoning that the Defendant cannot be deemed to have received this part of the special project cost from the head of C agency is inappropriate, but the lower judgment that acquitted this part of the charges is justified.

3) KRW 200 million around September 2016

Examining the reasoning of the lower judgment in light of the foregoing legal doctrine and the evidence duly admitted, the lower court found the Defendant not guilty of this part of the facts charged, thereby adversely affecting the conclusion of the judgment, by misapprehending the legal doctrine on the relationship to duties, etc. of bribery and exceeding the bounds of the principle of free evaluation of evidence contrary to logical and empirical rules. The reasons are as follows. (A) The Defendant received special project costs from the head of the C agency as seen earlier, and ordered G to suspend the receipt of the funds of the C agency funds when the suspicions related to the so-called K-called K Foundation, such as suspicions on the J Foundation, were reported through the press around August 2016. G delivered these instructions to F via L. Accordingly, F suspended the grant of special project costs.

B) There is no further fact that the Defendant instructs F to deliver C’s funds again.

However, around September 2016, F only received a statement from L to G that it is difficult for the Defendant to pay money, but it did not request the Defendant to provide money from the Defendant or G. However, F voluntarily embezzled KRW 200 million of the special project cost and granted it to the Defendant.

At the time, the so-called K-called K-related suspicion, which was the cause of suspending the provision of special project costs, was not resolved, so there was no situation where the special project costs would be subsidized again as before.

L also stated in the first instance court that the delivery of this part of the money was in accordance with F’s decision, and that this decision was correct and definite to F, and that the decision was made. In light of these circumstances, it is difficult to view that F was a voluntary and affirmative decision contrary to the past, and that F was a delivery of this part of money. Rather, it is reasonable to view that F was a voluntary and affirmative decision contrary to the past.

C) In a situation where the Defendant ordered to suspend the delivery of the C institution’s funds, the Defendant should be deemed to have been aware of the fact that the F voluntarily received this part of the funds without the Defendant’s instruction, and that the said money was different in nature from that of the previous money.

Unlike the previous cases in which M in charge of the financial affairs of the Cheongbu, mainly managed the funds of the C Agency, it seems that the Defendant used this part of the money directly by himself was derived from the above perception of the Defendant.

D) As a person holding the direction, supervision, and personnel administration of the C head, H has a substantial and substantial influence on the overall operation, such as the personnel affairs, organization, and budget, of the C head. The C head of the C head of the C head of the C head may be dismissed at any time according to the H’s intent without any statutory term of office. The Defendant and F merely have such occupational relationship, and there is no private-friendly relationship to the extent that 200 million won is given and received on the ground that there is no circumstance around the time when the C head of the C head of the C head of the C head of the Gu’s command, supervision, and personnel administration. Moreover, granting a large amount of money voluntarily by the C head of the C head of the Si head of the H head

E) This part of the money was delivered to N who assists in the Defendant’s private (private) business, unlike the previous money given to the Defendant through B, who was in charge of the Cheongbu Financial Services, and was delivered to the Defendant. As to the background thereof, G stated in the first instance trial that, as to the Defendant’s instant money, G was the N’s business and, therefore, he stated to L to the effect that he would be on N, because the money was directly raised under the Defendant’s value of rice tea. As seen above, the management and use of money was different from the money given prior to that time.

F) Comprehensively taking account of such circumstances, this part of the money ought to be deemed to constitute a bribe received as an unfair profit having a quid pro quo relationship with H, with the Defendant and F having recognized that the money was a bribe by July 2016.

2. Violation of the Specific Crimes Aggravated Punishment Act relating to the money that the defendant received (Loss to National Treasury, etc.).

A. The lower court determined, unlike the first instance court, that the C head does not fall under “a person in charge of the accounting affairs of the State” under Article 2 subparag. 1(k) of the Act on Liability of Accounting Personnel, Etc. (hereinafter “Act on Liability of Accounting Personnel”) and “a person in charge of the accounting affairs of the State,” in the case of special project costs, the special project cost shall be treated as a full decision of the head of the Planning and Coordination Office (hereinafter “the head of the Planning and Coordination Office”) (hereinafter “the head of the C Planning Office”), and the head of the C Planning and Coordination Office (hereinafter “the head of the C Planning Office”) shall be assigned from the chief of the C Planning and Coordination Office in accordance with the delegation decision, and the head of the C Planning and Coordination Office shall not be deemed to fall under any different one.

B) On such premise, the lower court found the Defendant guilty on the part from May 2013 to July 2016 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss to National Treasury, etc.), ① acquitted the Defendant on the grounds of the violation of the Aggravated Punishment, etc. of Specific Crimes Act (Loss to National Treasury, etc.), each of the primary charges, and found the Defendant guilty of each of the violation of the Aggravated Punishment, etc. of Specific Crimes Act (Loss to National Treasury, etc.), which is the second preliminary charge, with respect to the amount distributed by D, E, and F, in collusion with L who are accounting personnel, as the ancillary charge.

2) The Supreme Court’s judgment provides that the purpose of Article 1(2) of the Government Organization Act is to clarify liability of accounting personnel, etc. and prevent violation of the provisions of statutes or other relevant regulations and budget (Article 1) and Article 2 of the Act on Accounting Personnel means a person who falls under any of the following subparagraphs. According to the statutes governing national accounting such as the National Finance Act, the National Accounting Act, and the Management of the National Funds Act, Article 2(2) of the Act on Accounting Personnel means a person who executes national accounting affairs in accordance with the statutes governing the budget and accounting of the State. According to Article 1(2) of the Act on Accounting Personnel and Article 4(2) of the Act on Accounting Personnel and Article 9(2) of the Act on Accounting Personnel and Article 6(1) of the Act on Accounting Personnel and Article 9(2) of the Act on Accounting Personnel and Article 9(2) of the Act on Accounting Personnel and the head of a central government agency who is not in charge of accounting affairs of the State is also entitled to the authority of the head of the relevant central government agency.

(2) An act of incurring expenditure which is one of the affairs concerning accounting means a contract or other act which causes expenditure (Article 19 of the Management of the National Funds Act) and an act which finally generates a certain amount of expenditure obligation.

In relation to the execution of the ordinary budget of the C agency, the head of the C agency delegated the act of incurring expenditure to the head of the C agency, and the affairs so delegated shall be carried out by the head of the C agency without the approval of the head of the C agency. However, the special project cost shall be determined by the head of C agency on his/her own by determining the details of the obligation to incur expenditure, such as the place of use, timing and amount to be paid, and there is no room for other employees to intervene. Likewise, the case did

The documents in which the business name and the required budget are briefly stated in the execution process of the special project cost shall be prepared by the chief of the assistance office within C. However, this is only deemed to be merely a procedure for withdrawing the amount determined by the head of C.C. from the deposit account, and the preparation of the above documents itself cannot be deemed as an act of incurring expenditure.

(3) The head of C head of C shall designate the user office and instruct the disbursement of the special project cost. In this case, the head of C head of C office, etc., ordered by the head of C head of C head, granted the special project cost to the Defendant.

C) Examining the above circumstances in light of the legal principles as seen earlier, the head of C head of the C head of the C head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the c head of the ec

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the concept of "a person in charge of accounting affairs" as stipulated in Article 2 subparagraph 1 (k) of the Act on the Liability of Accounting Personnel and other persons in charge of national accounting affairs, and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

B. The part on September 2016

For the reasons indicated in its holding, the lower court acquitted all of the primary and conjunctive charges on the ground that there was no explicit or implied communication between F and the Defendant, no functional control over the Defendant exists, and no aiding and abetting the Defendant was established.

The allegation in the grounds of appeal disputing such determination by the lower court is merely an error of the lower court’s determination on the selection and probative value of evidence, which substantially belongs to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding conspiracy and assistance or by exceeding the bounds of the principle of free evaluation of evidence

3. Violation of the Specific Crimes Aggravated Punishment Act relating to the amount received zero (Bribery)

For the reasons indicated in its holding, the lower court acquitted the Defendant of this part of the facts charged, on the grounds that it is difficult to deem that the special project cost that the F granted to 0 by the F was paid in return for the performance of duties as the H secretary, or that the Defendant received as the price related to the duties as the H secretary in collusion with 0.

The allegation in the grounds of appeal disputing such determination by the lower court is merely an error of the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the relationship to duties of bribery and the quid pro quo or public offering, or by exceeding the bounds of

4. Violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) in relation to the amount received zero.

For the reasons indicated in its holding, the lower court found that F does not constitute accounting personnel under Article 2 of the Act on Liability of Accounting Personnel, and found the Defendant not guilty of violating the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.), which is the primary charge of this part, and found the Defendant guilty of occupational embezzlement, which is the ancillary charge under the premise that F is not accounting personnel.

However, as seen earlier, the head of C head falls under accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act regarding special project costs, and thus, the lower court acquitted the Defendants of this part of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine on accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act, and exceeding the bounds of the principle of free evaluation of evidence in violation

5. Scope of reversal

The part of the lower judgment, which is the primary charge except for September 2016, and the part of the lower judgment, which is the violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) and the part of the acquittal (Bribery) of the violation of the Specific Crimes Aggravated Punishment Act (Bribery) around September 2016, should be reversed. As such, the part of the lower judgment, which is the conviction, should be reversed including the part of the acquittal of the reasoning, should be reversed, as it is the ancillary charge of the violation of the Specific Crimes Aggravated Punishment, etc. of Specific Crimes Act (Embezzlement), the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Embezzlement), and the part of the occupational embezzlement.

6. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below's conviction (including the part of acquittal in the grounds of appeal) and the part of the acquittal (Bribery) of the violation of the Specific Crimes Aggravated Punishment Act (Bribery) are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Ansan-chul

Justices Park Sang-ok

Justices Noh Jeong-hee and Justice Noh Jeong-hee

Justices Kim Jae-hwan of the District Court