(a) Where money and valuables are received without the intention of actual solicitation with respect to cases, etc. dealt with by public officials, the nature of a violation of Article 78 (1) of the Attorney-at-Law Act;

(b) If a person who received money and valuables on the pretext of solicitation for a case dealt with by a public official for his own interest is punished for a violation of the Attorney-at-Law Act, the sex of the person who delivered the money and valuables, such as the crime of delivery

A. If a public official receives or promises to receive money, valuables, entertainment or other benefits under the pretext of solicitation or intermediation, and promises to give or promise to give them to a third party, the crime of violation of Article 78 subparagraph 1 of the Attorney-at-Law Act is established by receiving or promising to receive the above money and valuables. Even if the recipient of the above money and valuables did not actually wish to make a solicitation, if the receipt of the above money and valuables is for his own benefit, it does not affect the establishment of such crime.

B. Unlike the case where a public official receives a request for the affairs to be handled by a public official and receives money and valuables to the public official who is the other party to the solicitation and simply delivers them to the public official, there is a violation of Article 78 subparag. 1 of the Attorney-at-Law Act as soon as it receives money and valuables under the pretext of solicitation, etc. concerning the cases or affairs handled by the public official to obtain one's own benefits. In such a case, there is no room for

Article 78 subparagraph 1 of the Attorney-at-Law Act, Article 132 of the Criminal Act, and Article 133 of the Criminal Act

Supreme Court Decision 67Do1547 Decided February 6, 1968 81Do2765 Decided March 9, 1982, 71Do1848 Decided December 24, 1971, Supreme Court Decision 76Do391 Decided December 24, 1976, 81Do2765 Decided March 9, 1982

Defendant 1 and two others

Defendants

Attorney Kang Jong-soo, Doz.

Msan District Court Decision 84No703 delivered on February 1, 1985

The part concerning Defendant 2 and 3 among the judgment below is reversed, and that part of the case is remanded to the Masan District Court Panel Division.

Defendant 1’s appeal is dismissed.

(1) Defendant 1 and his defense counsel’s grounds of appeal are examined together.

Examining the evidence cited by the court of first instance by comparing the records, the court below's finding the facts charged that Defendant 1 received 12,00,000 won in aggregate with the request of the head of Msan Tax Office with respect to the tax evasion cases against Defendant 2 is justifiable, and it cannot be deemed that there is an error of law by violating the rules of evidence against theory, and if it receives or promises to receive money and valuables, entertainment or other benefits under the pretext of solicitation or mediation with respect to the cases or affairs handled by the public officials, or promises to give or promise to give them to a third party, it shall be deemed a violation of Article 78 subparagraph 1 of the Attorney-at-Law Act by receiving or promising to receive the above money and valuables, and even if the delivery of the above money and valuables to the public official did not actually think that the delivery was made, the crime of violation of Article 78 subparagraph 3 of the Attorney-at-Law Act shall not affect the establishment of the crime (see Supreme Court Decision 81Do2765, Mar. 9, 1982; 207Do1678).

(2) Defendant 2 and 3’s defense counsel’s grounds of appeal are examined. According to the judgment of the court of first instance, the court below acknowledged the fact of delivering money and other valuables to Defendant 13 as a bribe for the purpose of delivering money and other valuables at the end of the same month, 26:10,000 won in cash, etc. at the Cheongdong-dong, Masan-dong, Masan-dong, and Masan-dong, under the pretext of Defendant 2 and 3’s conspiracy to request the head of Msan Tax Office, etc. to take prior action against Defendant 2’s tax evasion cases, upon considering the evidence presented by the judgment of the court of first instance.

However, unlike the case where a public official receives a request for the affairs to be handled by the public official and simply delivers it to the public official, there is a violation of Article 78 subparagraph 1 of the Attorney-at-Law Act. In this case, there is no room for establishing the crime of good offices or bribery delivery (Supreme Court Decision 81Do2765 delivered on March 9, 1982; Supreme Court Decision 76Do3391 delivered on December 24, 1976; Supreme Court Decision 74Do2674 delivered on August 23, 197; Supreme Court Decision 71Do1848 delivered on December 24, 1971; and in this case, Article 78 subparagraph 1 of the Attorney-at-law Act was delivered on behalf of the public official in order to obtain one's own profits, and Article 78 subparagraph 2 of the Attorney-at-law Act was delivered on behalf of the public official in order to make his own profits.

In the end, the judgment of the court of first instance which affirmed the judgment that convicted the above defendants 2 and 3 on the ground that the above monetary delivery act of the defendant 2 and 3 is the delivery of brain water, shall be deemed to have affected the conclusion of the judgment by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the nature of the crime of delivering brain water under the latter part of Article 133(2)

(3) For the above reasons, the judgment of the court below as to Defendant 2 and 3 is reversed and remanded, and the appeal by the defendant's prison is dismissed. It is so decided as per Disposition with the assent of all participating judges.

Justices Kim Jong-sik (Presiding Justice)