2012Do13693 Acceptance of bribe

A person shall be appointed.

Defendant

Y Law Firm

Attorney Z, AA

Seoul High Court Decision 2012No1816 Decided October 18, 2012

December 26, 2013

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. The crime of acceptance of bribe under Article 129(1) of the Criminal Act is established when a public official receives, demands, or promises a bribe in connection with his/her duties, and the "public official's duties" in the above provision includes not only the duties under the legal control of the public official, but also the acts closely related to the public official's duties, or the act of assisting, or affecting, the person with decision-making authority.

In this regard, Article 45 subparagraph 2 of the Construction Technology Management Act provides that when applying the provisions of bribery under criminal law, a member who is not a public official among the members of the Design Advisory Committee (hereinafter referred to as the "Design Advisory Committee") of the contracting authority under Article 5-2 of the above Act shall be regarded as a public official. This is the purport that when a person who is not a public official performs his/her duties as a member of the Design Advisory Committee to enhance fairness and transparency in deliberation by the Design Advisory Committee, he/she intends to punish him/her as

In light of the contents and purpose of the relevant provisions and the legal principles on the scope of duties in the crime of acceptance of bribe, in cases where public officials such as state public officials or local public officials perform their duties as members of the Design Advisory Committee, even if such duties do not fall under the scope of the original duties handled by the public officials, when giving or receiving unfair money or valuables in relation to the duties of the Design Advisory Committee members, they shall be subject to Article 1

The acceptance of unjust money and valuables in relation to the duties handled by public officials, and the acceptance of bribe shall be established.

B. Meanwhile, Article 5-2(2) of the Construction Technology Management Act provides that matters necessary for the composition, functions, operation, etc. of the Design Advisory Committee shall be determined by the contracting authority in accordance with the criteria prescribed by Presidential Decree. According to the delegation, the Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 24390, Feb. 20, 2013; hereinafter referred to as the "Enforcement Decree") provides that the Design Advisory Committee may organize and operate a design deliberation subcommittee to efficiently carry out certain matters, such as matters concerning the deliberation of alternative designs and package deal tender design among its duties (Article 21(5)); the members of the Design Advisory Committee shall be appointed or commissioned by the contracting authority among the persons recommended by the Construction Technology Deliberative Committee of various levels, other contracting authority of other contracting authorities or related civil organizations and experts in the relevant field (Article 21(1)5); the members of the Design Deliberation Committee shall be appointed or commissioned by the chairperson of the Design Advisory Committee [Attachment 2] of the Enforcement Decree of the Construction Technology Management Act, among those persons meeting the relevant qualifications listed in [Attachment 2].

Therefore, in case where public officials such as state public officials or local public officials receive unfair money or valuables in relation to the duties of the design deliberation subcommittee or its members after being appointed or commissioned as members of the design deliberation subcommittee by the contracting authority, the public officials fall under the receipt of unfair money or valuables in relation to the duties of the design deliberation committee members, and thus, the acceptance of bribe is established pursuant to Article 129(1) of the Criminal Act and Article 45(2) of the Construction Technology Management Act

2. In addition, in light of the above provisions of the Enforcement Decree on the appointment of the members of the Design Advisory Committee and the members of the Design Deliberation Subcommittee, it shall not be denied the validity of the appointment or the validity of the execution of the defendant's duties based on the fact that the president of the E Industrial Complex, as the representative of the E Industrial Complex which is the contracting authority in this case, directly commissioned the defendant as the members of the Design Advisory Committee in the Design Advisory Committee as the members of the design Advisory Committee composed of its subordinate organizations within the Design Advisory Committee and carried out certain matters among the affairs of the Design Advisory Committee, and the defendant did not undergo any procedure or form appointed or commissioned as the members of the Design Advisory Committee other than the appointment of the Design Advisory Committee as the members

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and determination as well as the evidence duly admitted, the lower court, as indicated in its reasoning, found the Defendant guilty of all of the facts charged of this case where: (a) the Defendant, who was a public educational official, was selected as a member of the National University Machinery Engineering and professor of the Korea National University, and was in charge of the duties as a member of the design deliberation subcommittee of the E Corporation; and (b) received a bribe in relation to the design deliberation and evaluation of each project ordered by the E Corporation while taking charge of the duties, was based on the aforementioned legal principles. Accordingly, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment by misapprehending the legal principles on the scope of public officials

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

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim Gin-young