[1] The meaning of "public official" under Articles 129 through 132 of the Criminal Code

[2] Whether a “member of the Building Committee” under the former Building Act constitutes a “public official” who is the subject of the crime of acceptance of bribe (negative)

[1] Articles 129, 130, 131, and 132 of the Criminal Act / [2] Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1) and 129 of the Criminal Act; Articles 2 and 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 4(1) and 77 of the former Building Act (wholly amended by Act No. 8974, Mar. 21, 2008; see current Article 105)

[1] Supreme Court Decision 2000Do4593 Decided November 22, 2002 (Gong2003Sang, 264) Supreme Court Decision 2010Do14394 Decided March 10, 201 (Gong2011Sang, 787)

Defendant 1 and one other

Defendants

Attorneys Park Jin-jin et al.

Ulsan District Court Decision 2011No1611 decided April 27, 2012

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined.

1. According to the records, it is revealed that only the prosecutor appealed the conviction of the first instance court on the ground of unfair sentencing, and the Defendants did not appeal. In such a case, the Defendants may not appeal the judgment of the court below on the grounds of misapprehension of legal principles and incomplete deliberation, etc. However, the court of final appeal may render ex officio a decision on the grounds that the judgment of the court below is not included in the appellate brief under Article 383 subparagraphs 1 through 3 of the Criminal Procedure Act. Thus, the grounds for final appeal claiming this point mean demanding ex officio action (see, e.g., Supreme Court Decisions 2007Do3596, Jul. 26, 2007; 2009Do1407, Jan. 28, 2010).

2. The term “public official” under Articles 129 through 132 of the Criminal Act refers to a public official under the State Public Officials Act and the Local Public Officials Act, and a person engaged in the affairs of the State or a local government and an equivalent public corporation pursuant to other Acts and subordinate statutes, other than those to be regarded as a public official, whose contents of labor are not limited to a mere mechanical or physical nature (see Supreme Court Decision 2010Do14394, Mar. 10, 201, etc.).

However, Article 77 of the former Building Act (wholly amended by Act No. 8974 of Mar. 21, 2008; hereinafter “former Building Act”) provides that “a person who falls under any of the following subparagraphs and is not a public official shall be deemed a public official in the application of Articles 129 through 132 of the Criminal Act, and Articles 2 and 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes,” subparagraph 1 and subparagraph 2 of the same Article, “a person who acts as an agent for a field investigation, inspection, and confirmation under Article 23 of the same Act,” “a construction advisor under Article 28 of the same Act,” “an officer or employee of an accrediting institution under Article 58(2)3 of the same Act, “an officer or employee of an accrediting institution under Article 71(4)4 of the same Act,” and “a member of the Building Dispute Mediation Committee under Article 76-3 of the same Act,” and “a member of the Building Dispute Mediation Committee under Article 4 of the same Act,” are not listed.

In addition to the above legal principles and the legal provisions on the application of the crime of acceptance of bribe under the former Building Act, and the principle that penal provisions should be strictly interpreted, a member of the Building Committee under Article 4(1) of the former Building Act shall not be deemed a public official who is the subject of the crime of acceptance of bribe.

Nevertheless, the court below found the Defendants guilty on the premise that the Defendants, members of the ○○ Metropolitan City Building Committee, were public officials, who received each bribe in relation to their duties from the executor or the contractor in connection with the construction deliberation of apartment buildings. Therefore, the court below erred by misapprehending the legal principles on the subject of acceptance of bribe, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, 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 Min Il-young (Presiding Justice)