[1] The standard for determining the degree of bribe performance and duty relationship in the crime of bribery

[2] The subject of the crime of acceptance of bribe

[3] The case holding that in case where a public official promises the acceptance of a bribe in relation to his duties and receives it after retirement, the crime of promising the acceptance of a bribe and the crime of ex post facto acceptance of a bribe are established

[1] Article 129(1) of the Criminal Act / [2] Article 129(1) of the Criminal Act / [3] Articles 129 and 131 of the Criminal Act

[1] Supreme Court Decision 2001Do3579 Decided October 12, 2001 (Gong2001Ha, 2510) Supreme Court Decision 2001Do6721 Decided July 26, 2002 (Gong2002Ha, 2142) Supreme Court Decision 2007Do2178 Decided June 14, 2007 / [2] Supreme Court Decision 91Do3191 Decided August 14, 1992 (Gong192, 2706)

Defendant

Defendant and Prosecutor

Law Firm Mau, Attorneys Man-tae et al.

Seoul High Court Decision 2007No224 decided June 1, 2007

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the impossibility of performing such duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of money and valuables received, it is sufficient that money and valuables 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. If a public official receives money and valuables or other benefits from a person subject to his duties, it is deemed that the money and valuables are merely an exceptional cost in light of social norms, or that there is no relation with his duties unless there are special circumstances, such as where it is clearly recognized that a private pro rata relationship is due to the need for decentralization. If a public official received money and valuables in relation to his duties, even if he received them, such money and valuables are given and received as a bribe (see Supreme Court Decision 201Do6721, Jul. 26, 2002; 2008Do3814, Nov. 26, 2002).

In light of the above legal principles and the records, the court below found the defendant guilty of this part of the facts charged on the ground that the defendant, as the president of the Korea Development Bank, who was in charge of the sale of non-performing loans, restructuring methods of insolvent enterprises, and the selection of consulting companies, received US$ 10,00 from the non-indicted who was in charge of the receipt of services such as inspection of assets and debts related to the restructuring of insolvent enterprises, etc., establishment of sales strategies, and consultation on sales strategies, as the president of the Korea Development Bank as the president of the Korea Development Bank's overall vice-chairperson of the Korea Development Bank Group, constitutes a bribe because it is related to the defendant's duties, and it cannot be viewed as a courtesy received from a personal-friendly relationship, and there is no error of law such as

2. As to the Prosecutor’s Grounds of Appeal

A. As to the first ground for appeal

A crime of acceptance of bribe is established when a public official or an arbitrator receives a bribe in connection with his/her duties, and the subject is limited to a public official or an arbitrator, and thus, in cases where a public official promises to accept a bribe in connection with his/her duties and receives it after retirement, even if the public official continues to do so in close vicinity at time, the crime of promising a bribe and the crime of acceptance of a bribe may not be established, apart from the fact that the crime

In the same purport, the court below's decision that the defendant retired from the president of the Industrial Bank at the time when he was provided with the office, etc. from the non-indicted, is just in accordance with the above legal principles, and there is no violation of the misapprehension of legal principles as to the crime of acceptance of bribe, as otherwise alleged in the grounds of appeal. The Supreme Court decision cited in the grounds of appeal

B. As to the grounds of appeal Nos. 2 and 3

Reviewing the reasoning of the judgment below in light of the records, the court below acknowledged that the defendant's acceptance of the proposal from the non-indicted person to provide the office, etc. after April 10, 2003 when the defendant's retirement policy became final and conclusive and the defendant promised to receive the office, etc. from the non-indicted person from April 17, 2003. As such, the time when the defendant promised to receive the office, etc. from the non-indicted person after his retirement became final and conclusive and there is no clear evidence to prove that there was any pending issue in relation to the duties of the defendant, and that the non-indicted's offering of office, etc. to the non-indicted was intended to use the defendant's office, etc. to help the defendant's business rather than taking advantage of the bicycle racing and etc. while he works as the president of the Industrial Bank. In light of the above, the court below's determination that the defendant's acceptance of office, etc. from the non-indicted person's office is a quid pro quo relation with the defendant's duty or finding that the defendant was not guilty.

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

Justices Park Si-hwan (Presiding Justice)