[1] The purpose of Article 45 subparagraph 2 of the Construction Technology Management Act, when applying the bribery provisions under the Criminal Act, deeming a member who is not a public official among the members of the "Design Advisory Committee" under Article 5-2 of the same Act as a public official

[2] In a case where a person appointed or commissioned as a member of the "design Deliberation Subcommittee" under the Construction Technology Management Act receives unjust money and valuables in relation to the design deliberation subcommittee or its member's duties, whether the crime of bribery is established by falling under the act of accepting unjust money and valuables in relation to his/her duties as a member of the "Design Advisory Committee" under Article 45 subparagraph 2 of the

[1] The purport of Article 45 subparagraph 2 of the Construction Technology Management Act (hereinafter “Act”) provides that when applying the provisions of bribery under the Criminal Act, a member who is not a public official among the members of the design advisory committee of contracting authority under Article 5-2 of the Act shall be deemed to be a public official. In order to enhance the fairness and transparency of the deliberation of the design advisory committee, where a person who is not a public official handles his duties as a member of the design advisory committee, he shall be deemed

[2] The design deliberation subcommittee, like the provisions of Article 5-2(2) of the Construction Technology Management Act, Article 21(1), (5), (6), and Article 10(5) of the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 24390, Feb. 20, 2013), is a subordinate agency of the Design Advisory Committee, and the design deliberation subcommittee of the contracting authority performs certain duties among the duties of the Design Advisory Committee. To this end, the members of the Design Deliberation Subcommittee shall be appointed or commissioned from among the members of the Design Advisory Committee, as prescribed by the Construction Technology Management Act. Therefore, if a person appointed or commissioned by the contracting authority as a member of the Design Deliberation Subcommittee receives unfair money or valuables in relation to the duties of the design deliberation subcommittee, it is reasonable to deem that the crime of bribery is established as a member of the Design Advisory Committee as prescribed by Article 45 subparag. 2 of the Act.

[1] Article 129(1) of the Criminal Act, Article 5-2 and Article 45 subparag. 2 of the Construction Technology Management Act / [2] Article 129(1) of the Criminal Act, Article 5-2 and Article 45 subparag. 2 of the Construction Technology Management Act, Article 10(5) [Attachment 2], Article 21(1), (4), (5), and (6) of the former Enforcement Decree of the Construction Technology Management Act (Amended by Presidential Decree No. 24390, Feb. 20, 2013) (see current Article 21(7))

Defendant

Prosecutor

Law Firm Dokdo, Attorneys Han Han-soo et al.

Seoul High Court Decision 2012No2361 decided November 16, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Summary of the facts charged and the judgment of the court below

The summary of the facts charged in the instant case is that the Defendant was a professor of the environment department of ○○ University and was commissioned by the Korea Environment Corporation as a member of the design deliberation subcommittee (specialized fields: construction and landscaping) within the Design Advisory Committee on May 201, and on February 8, 2011, the Defendant was selected as a member of the Deliberation Committee on the Construction of the “Project for the Establishment of △△△△△△ General Industrial Complex” and the design plan was examined, and the Defendant granted the first priority points to the public tender company among the participants, and received KRW 10 million in cash from the employees of the said company on March 16, 201.

The prosecutor indicted the Defendant as a member of the Design Advisory Committee who is deemed a public official under Article 45 subparagraph 2 (hereinafter referred to as the “instant provision”) of the Construction Technology Management Act (hereinafter referred to as the “Act”), and indicted the Defendant as a crime of acceptance of bribe.

As to this, the lower court did not regard the member of the design deliberation subcommittee of the Korea Environment Corporation as a member of the design deliberation subcommittee, unless he is separately commissioned as a member of the design deliberation committee. The Defendant was commissioned as a member of the design deliberation subcommittee of the Korea Environment Corporation, and the Defendant was not commissioned as a member of the design deliberation committee of the Korea Environment Corporation. Thus, the Defendant cannot be deemed as a public official under the provisions of this case, and thus, cannot be deemed as the subject of the crime of acceptance of bribe, reversed the

2. Judgment of the Supreme Court

A. The purport of the provision of this case, when applying the provision of bribery under the Criminal Act, that stipulates that a member who is not a public official among the members of the contracting authority under Article 5-2 of the Act shall be deemed a public official among the members of the Design Advisory Committee under Article 5-2 of the Act, is to punish him/her as a public official when he/she receives unfair money in relation to his/her duties in order to enhance

However, Article 5-2(2) of the Act provides that matters necessary for the composition, functions, operation, etc. of the Design Advisory Committee shall be prescribed by the contracting authority in accordance with the standards prescribed by Presidential Decree. According to the delegation, the former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 24390, Feb. 20, 2013; hereinafter “Enforcement Decree”) may organize and operate a design deliberative subcommittee to efficiently carry out certain matters, such as matters concerning the deliberation of alternative designs and package deal tender design among the affairs in charge by the Design Advisory Committee (Article 21(5)), and the members of the Design Advisory Committee shall be appointed or commissioned by the contracting authority from among the construction technology deliberation committees of various levels, other contracting authorities or experts recommended by the relevant civil organizations of other contracting authorities, and the members of the Design Deliberation Subcommittee shall be appointed or commissioned by the chairperson of the Design Advisory Committee from among the persons meeting the relevant qualification requirements listed in attached Table 2 [Attachment 2] (Article 10(5) applied mutatis mutandis by the main sentence of Article 21(6).

In light of the fact that the design deliberation subcommittee as a subordinate organ of the design advisory committee carries out certain matters among the affairs of the design advisory committee, and for this purpose, from among the members of the design advisory committee, the members of the design deliberative committee shall carry out the duties of the design advisory committee as prescribed by the Construction Technology Management Act. Therefore, in case where a person appointed or commissioned as a member of the design deliberative subcommittee gives or receives unjust money or other valuables in relation to the duties of the design deliberative subcommittee or its members, it is reasonable to deem that the crime of bribery is established as a member of the design advisory committee as prescribed by the provisions of this case.

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) The Korea Environment Corporation has a design advisory committee pursuant to Article 5-2 of the Act as a corporation which is a contracting authority under Article 2-5 of the Act, and the Korea Environment Corporation is organizing and operating a design deliberative subcommittee pursuant to Article 21-5 (5) of the Enforcement Decree in order to efficiently carry out certain matters, such as deliberation on package deal tender, alternative tender, etc. among its duties.

(2) The Defendant, as a professor of ○ University Environment Landscaping, was deemed to be a professor of a department related to technology in a university under Article 2 subparag. 1 of the Higher Education Act, and was commissioned by the president of the Korea Environment Corporation as a member of the design deliberation subcommittee of the Korea Environment Corporation around May 2010, under the Construction Technology Management Decree and the Korea Environment Corporation’s Guidelines for Operation of the Design Advisory Committee (hereinafter “instant Operation Guidelines”).

(3) Based on the above commission, the Defendant performed duties such as the examination and evaluation of design documents and drawings regarding package deal projects of various construction projects ordered by the Korea Environment Corporation until December 2011.

(4) In the process, on March 16, 201, the Defendant received KRW 10 million in cash from the employees of the participating company in the tender to the effect that the first instance score was given to the pertinent company in relation to the examination of design documents.

C. As above, the Enforcement Decree provides that the chairperson of the Design Advisory Committee shall appoint or commission members of the design deliberation subcommittee by the contracting authority, but the defendant was commissioned by the president of the Korea Environment Corporation, the contracting authority, as a member of the design deliberation subcommittee pursuant to the instant operational guidelines.

However, as seen earlier, the Construction Technology Management Decree has the authority to appoint or commission the members of the Design Advisory Committee, which are the superior agencies of the Design Deliberation Subcommittee, and to appoint or commission them from among the members of the Design Advisory Committee, by prescribing that the members of the Design Deliberation Subcommittee of the contracting authority shall be appointed or commissioned from among the members of the Design Advisory Committee. The members of the Design Advisory Committee of the contracting authority have to carry out certain matters from among the affairs of the Design Advisory Committee on the premise that they are basically subject to appointment or commission procedures by the contracting authority. Furthermore, the Enforcement Decree allows the chairperson of the Design Advisory Committee to appoint or commission the members of the Design Advisory Committee, even on the premise that the composition and operation

In Article 1 (Purpose) of the Operating Guidelines of this case, the purpose of this case is to provide for matters necessary for the composition, operation, etc. of the Design Advisory Committee to deliberate and advise on matters concerning construction works and construction technology, etc. implemented by the Korea Environment Corporation in accordance with Article 5-2 of the Act and Article 21 of the Enforcement Decree of the Enforcement Decree. The Operational Guidelines of this case clearly state that the Operation Guidelines of this case set forth detailed matters concerning the composition, functions, operation, etc. of the Design Advisory Committee within the scope of the standards of the Act and the Enforcement Decree. Article 19 (1) of the Operation Guidelines of this case provides that the Design Advisory Committee shall organize and operate the Design Advisory Committee to efficiently conduct the affairs such as design deliberation, technical proposal deliberation, etc. of the Design Advisory Committee. Furthermore, Article 7 (9) of the Operation Guidelines of this case provides that "where a subcommittee violates the Code of Ethics as a member of the Subcommittees, it is based on the premise that a member of the Design Advisory Committee is a member of

Meanwhile, Article 19 (7) provides that "commissioned Design Advisory Committee shall not be held concurrently with the design deliberative subcommittee." In light of the Construction Technology Management Decree and the contents and validity of the operation guidelines of this case, the above provisions refer to the dedicated member of the Design Advisory Committee, who concurrently takes charge of the affairs of the subparagraphs of Article 19 (1), among the affairs of the Design Advisory Committee, who is not the member of the Design Advisory Committee, and the rest of affairs are in charge of the members of the General Design Advisory Committee, not the members of the Design Advisory Committee. The purpose of distinguishing the duties of the Design Advisory Committee, which concurrently takes charge of the design deliberative subcommittee, and it does not mean that the status of the member of the Design Advisory Committee and the status of the member of the design deliberative subcommittee are not in a relationship that is inconsistent with the status of the Design Advisory Committee. If the provisions of Article 19 (7) of the Operational Guidelines of this case means that the members of the Design Deliberation Committee cannot be a member of the Design Advisory Committee, it is inconsistent with the Construction Technology Management Act and therefore, it cannot be deemed a member of the provisions of this case.

As a representative of the Korea Environment Corporation, which is the contracting authority, in this case, the president of the Corporation, who is the organizing and operating authority of the design advisory committee, directly commissioned the defendant as a member of the design advisory committee composed of its subordinate organizations within the design advisory committee and carried out certain matters, the validity of the appointment or the performance of the defendant's duties based on this cannot be denied. The defendant did not undergo any procedure or form appointed or commissioned as a member of the design advisory committee in addition to the appointment of the president of the Korea Environment Corporation as a member of the design advisory committee

D. Examining the above circumstances in light of the legal principles as seen earlier, the Defendant was commissioned as a member of the design deliberation subcommittee of the Korea Environment Corporation, which is the contracting authority, and received unfair money or valuables in relation to his duties while carrying out certain duties among the duties of the Design Advisory Committee. This ought to be deemed to have received a bribe in relation to his duties as a member of the Design Advisory Committee, who

On the contrary, the lower court’s decision that acquitted the Defendant on the ground that the Defendant did not constitute a member of the Design Advisory Committee under the legal provisions of this case is erroneous by misapprehending the legal principles on the interpretation of the provisions

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)