[1] Whether the act of mediating a case by a police officer who is not an attorney-at-law, an employee of the court or the prosecutor's office, etc., to the defendant who is an attorney-at-law and receiving money and valuables in return constitutes a referral under the latter part of Article 90 (2)

[2] The case holding that, in case where the defendant, an attorney-at-law, arranged the number of legal cases and paid the case fees in accordance with the practice in which he pays the number of legal cases from the referrals, it is reasonable to view that there was an explicit or implied promise on the payment of money and valuables in return for the referral of legal cases between the referrals

[3] The requirements for the court to find facts different from the facts charged without going through the amendment process, the correction of the date and time of the clerical error, and the modification of the indictment (negative)

[4] The standard for determining whether the profit gained by a public official constitutes a bribe as an unfair profit having a quid pro quo relationship, and the meaning of duties in the crime of bribery

[1] "Good offices" under the latter part of Article 90 subparagraph 2 of the former Attorney-at-Law Act (amended by Act No. 6207 of Jan. 28, 200) refer to acts of mediating or facilitating the conclusion of delegation contracts, etc. on legal cases or legal affairs bilaterally between the parties to a legal case and the other party who deals with legal affairs, such as representation, etc. As such, even if delegation contracts, etc. are not established in reality, it may not be concluded. Cases where non-legal representatives act as well as mediating other non-legal representatives to act as a broker for legal cases, and the case where a non-legal representative acts as a broker for other non-legal representatives, and as a result, the case includes not only the person who requested or promised to act as a broker for the fees, but also the other party or both parties, and the promise to pay such fees does

[2] The case holding that in case where the defendant, an attorney-at-law, received referrals of the number of legal cases from the referrals, and received referrals of the number of legal cases from the referrals, it is reasonable to deem that there was an explicit or implied promise on the payment of money and valuables in consideration of the referrals of legal cases

[3] If there is no concern about substantial disadvantage to the defendant's exercise of the defendant's right of defense, it does not violate the principle of non-definite interest, even though the court acknowledged facts different from the facts charged without going through the amendment process within the same extent, and it does not violate the principle of non-definite interest, if the date of the crime is obvious that the

[4] Whether a public official's profit constitutes a bribe as an unjust profit in relation to his/her duties should be determined by considering all the circumstances, such as the contents of the official's duty, whether there exists a special relationship between him/her and the beneficiary, whether there exists a relationship of relationship between him/her and the beneficiary, how and when he/she receives the excess interest, etc. In light of the fact that the legal interest of the bribery is the process of performing his/her duties and the trust in society, whether a public official's receipt of such benefit is suspected of being fair in performing his/her duties from the general public should also be the criteria for determining whether a public official's receipt of benefit constitutes a bribe. The duties mentioned in the crime of bribery include not only the duties under the law, but also the acts closely related to the duties

[1] Article 90 subparagraph 2 (see current Article 109 subparagraph 1) of the former Attorney-at-Law Act (amended by Act No. 6207 of Jan. 28, 200) / [2] Article 27 (2) (see current Article 34 (3)), Article 90 subparagraph 2 (see current Article 109 subparagraph 1) and Article 90 subparagraph 3 (see current Article 109 subparagraph 2) of the former Attorney-at-Law Act / [3] Article 254 and Article 298 of the Criminal Procedure Act / [4] Article 129 of the Criminal Act

[1] Supreme Court en banc Decision 98Do3697 delivered on June 15, 200 (Gong200Ha, 1702) 200Do253 delivered on September 29, 200 (Gong2000Ha, 267), 200Do509 delivered on July 24, 200 (Gong2001Ha, 20199, 2097) 97Do9792 delivered on June 14, 198 (Gong198, 198, 1997) 209Do4979 delivered on May 9, 198, 209, 209Do97949 delivered on September 14, 205 (Supreme Court Decision 2009Do94979 delivered on May 9, 209)

Defendant 1 and two others

Defendants

Law Firm Tae-il et al.

Daejeon High Court Decision 2000No117 delivered on February 2, 2001

All appeals are dismissed.

We examine the grounds of appeal.

1. As to the violation of the Attorney-at-Law Act

A. Regarding the misapprehension of legal principles and violation of the principle of no punishment without law

Article 90 subparagraph 2 of the former Attorney-at-Law Act (amended by Act No. 6207 of Jan. 28, 200, hereinafter referred to as the "Act") provides the parties to a legal case and the other party who deals with legal affairs such as representation for the case with mediation or convenience of concluding delegation contracts, etc. bilaterally, even if delegation contracts, etc. are not actually formed, and it constitutes an act of mediating or arranging attorney-at-law's fees to other non-legal representatives as well as an act of mediating or promising attorney-at-law's fees to receive from the other party or both of them as consideration for such acts (see, e.g., Supreme Court en banc Decision 98Do3697, Jun. 15, 200; 200Do2253, Sept. 29, 200; 2000Do3697, Nov. 26, 200).

B. On the ground that there was an error in violation of the principle of non-definite objection

(1) In a case where there is no concern about actual disadvantage to the defendant's exercise of the right to defense, it does not violate the principle of no accusation even though the court acknowledged facts different from the facts charged without going through the amendment of indictment to the same extent (see, e.g., Supreme Court Decision 98Do4558, Jul. 28, 2000). If the date and time of the crime is obvious that it is a clerical error, it does not violate the principle of no accusation (see, e.g., Supreme Court Decision 87Do1801, May 9, 1989).

The court below acknowledged the defendants' bill of indictment that the defendants provided a referral fee to them and provided money and goods in the name of the referral expense to the persons who accepted and arranged legal cases with the knowledge of the fact that the defendants arranged the case for the purpose of receiving money and goods. The defendants expect to receive money and goods as consideration and arrange legal cases and the defendants agreed to pay money and goods in the name of the referral expense by accepting the case so that the defendant 1, an attorney-at-law, knowing the fact that the case was mediated, and the defendants agreed to pay money and goods in the name of the referral expense. Unlike the bill of indictment, the defendants recognized the bill of indictment No. 169 No. 97 through No. 103 as "in the second order of September 196" and the bill of introduction No. 97 through No. 103 as "unclaimed", but the records followed by the records that this act and the promise on payment of money and goods was made within the same extent as the facts charged, and there was no error in the misapprehension of legal principles as to the defendant's right of defense.

(2) The judgment of the court below divided the crimes Nos. 1 and 5 from the crimes of Nos. 1 and 5 in the annexed sheet of the judgment of the court below, and dealt with the "office chief" as an official disturbance, and attached an explanation to the end of the annexed sheet that "cases without any entry in the office chief are directly introduced by Defendant 1", and there is room for misunderstanding that the court below recognized each of the above crimes as a single criminal act by Defendant 1. However, since the first head of the crime of the judgment of the court below stated that "the defendant 1 and 2 conspired with each other" was committed, it is obvious that the above annexed sheet is a simple clerical error, and it cannot be said that it constitutes an unlawful act affecting the judgment or violates the principle of no accusation.

C. As to the violation of the rules of evidence, incomplete deliberation, and mistake of facts

(1) Whether there was an express or implied promise to receive money and valuables in accordance with the practice of offering and receiving the money and valuables

Examining the evidence cited by the court below in light of the records, Defendant 1 opened a law office around August 1992 and introduced a criminal case from the defendant 2, 3, and the non-indicted 1, who are the head of the office, and decided to attract the case by paying about 20% of the fees which are customarily received in the Daejeon area. Accordingly, the defendants continued to introduce a criminal case to the defendant 1, who was employed in the previous prosecutor's office or the police office or become aware of the fact that he had become aware of the fact that he had become aware of the fact that he had become aware of the fact that he had become aware of the fact that he had been involved in the investigation or trial or that he had become aware of the fact that he had been employed as the counsel at least 9% of the fees paid to the defendant 1, the defendant 2, the head of the office, and the defendant 1, the head of the office, etc. introduced the criminal case by introducing them to the defendant 1, the defendant 1, as the head of the court below's order.

Therefore, under the premise that there was an explicit or implied promise on the receipt of money and valuables between the Defendants and the introduction, the court below is justified in finding the Defendants guilty of each crime, and there is no violation of the rules of evidence, nor any incomplete deliberation, or any misconception of facts, contrary to the allegations in the grounds of appeal.

(2) As to the statement of non-examination of evidence

Since there was no testimony in the court of first instance, it is erroneous that the court below made a statement in the summary column of evidence including "the statement of the above witness in the trial records of the court of first instance" as well as "the statement of the above witness in the trial records of the court of first instance," but the remaining evidences cited by the court below can sufficiently recognize the defendants' respective crimes. Thus, the above error of the court below cannot be deemed to constitute an illegality affecting the conclusion of the judgment

(3) As to the fact that the person involved in each crime was found to have been wrong

The crime of Article 90 subparagraph 2 of the Act or Article 90 subparagraph 3 of the Act or Article 27 (2) of the Act is established when a person, other than an attorney-at-law, receives or promises to receive money and other valuables, or promises to provide or promises to provide them to a third party in order to deal with legal affairs and arrange or accept legal affairs. Thus, in recognizing that Defendant 1 committed a violation of each Act in collusion with Defendant 2, etc., even if the court below erred in the misapprehension of part of the other party to the public offering, it does not constitute an error of law affecting the conclusion

2. As to the offering of bribe

Whether a public official’s profit constitutes a bribe as an unjust profit in relation to his/her duties shall be determined by taking into account all the circumstances, such as the content of his/her duties, whether there exists a special relationship between the public official’s duty and the relationship between the benefit provider and the other party, and the situation and timing of receiving the benefits. In light of the fact that the legal interest of the bribery is the fairness of performing his/her duties and the trust in society, the issue of whether a public official’s receipt of such benefit is doubtful of fairness in performing his/her duties from the general public shall also be the basis for determining the nature of the bribery. Furthermore, the duties mentioned in the crime of bribery include not only the duties under the control of the public official, but also the acts closely related to his/her duties, or the acts of performing duties in fact involving custom or fact-finding (see Supreme Court en banc Decision 98Do3697, Jun. 15,

In the same purport, the court below acknowledged that if a public official who conducts an investigation as his duties introduces a party to a case in which he directly investigated or investigated to an attorney-at-law and received money in return, the acceptance of money is presumed a bribe. In full view of the evidence, the court below acknowledged that the defendants conspired with each other to arrange that the general staff of the Daejeon Prosecutors' Office or a police officer in the Daejeon District would be the number of an investigation cases that he handled or handled, and provided money in return, the defendants' act is reasonable to have committed an act as a crime of offering of a bribe, and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding legal principles as to the crime

3. As to the misapprehension of legal principles as to the number of crimes

Article 90 subparagraph 2 of Article 90, subparagraph 3 of Article 90 and Article 27 (2) of the Act shall be established when a person, other than an attorney-at-law, receives or promises to receive money and other valuables, etc., and at that time, a criminal case is an independent case by a suspect or defendant, and thus, in case where a person, other than an attorney-at-law, promises to receive money and other valuables, etc., and mediates the handling of criminal cases against a suspect or defendant, a crime under Article 90 subparagraph 2 of Article 90, subparagraph 3 of Article 90, and Article 27 (2) of the Act is established by such suspect or defendant, and each crime is in a concurrent relationship under the former part of Article 37 of the Criminal Act. However, only in the case where only one intermediary act is established, the crimes are in a mutually competitive relationship under Article 40

In addition, the crime of offering of a bribe is up to the acceptance of the bribe at the time of offering the bribe, and if the bribe is offered after promising the offering of the bribe, the promise is deemed to be absorption into the offer. Thus, in case where a police officer, etc., who is not an attorney-at-law, promises to receive money or other valuables related to his duties and actually receives money or other valuables after arranging it to an attorney-at-law, the crime of Article 90 subparagraph 2 of the Act or Articles 90 subparagraph 3 and 27 (2) of the Act and the crime of offering of a bribe are established

The court below is just in accordance with such legal principles that the crime of violation of the Attorney-at-Law Act and the crime of offering of bribe are committed as concurrent crimes under the former part of Article 37 of the Criminal Act, and it is not erroneous in the misapprehension of legal principles as to the number of crimes as alleged in the grounds of appeal.

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

Justices Lee Jae-in (Presiding Justice)