(영문) 서울고등법원 2005. 6. 13. 선고 2005노546 판결

4. Provided, That the execution of the above punishment shall be suspended for two years from the date when this judgment has become final and conclusive;

5. A seizure of 10,000 paper paper paper 20,000 (No. 1) shall be forfeited from Defendant 1.

6. The prosecutor's appeal against the defendant 2 is dismissed.

Reasons

1. Grounds for appeal;

A. Public Prosecutor (Defendant 2)

(1) misunderstanding of facts

이 사건의 핵심은 피고인의 주관적 인식과 판단이므로 객관적으로 드러난 사실과 경험칙으로 피고인의 주관적 인식내용을 추단할 수 밖에 없으며 이 사건 굴비상자 수수 당시 뿐만 아니라 그 이후의 정황도 모두 고려의 대상으로 삼아야 한다. 따라서 피고인 1이 공소외 1 주식회사를 키우기 위해 공소외 2를 통해 의도적으로 피고인에게 접근하여 청탁한 점, 피고인은 인천광역시장이고 피고인 1은 인천광역시에서 사업체를 키워야 하는 상황에 있었던 점, 피고인과 피고인 1은 평소 친분이 전혀 없어 의례적인 선물을 주고 받을 사이가 아니었던 점, 공소외 1 주식회사를 보살펴 달라는 취지의 청탁과정에서 이 사건 금품이 수수된 점, 피고인이 이 사건 2억 원을 전달받은 후 피고인 1에게 확인 내지 항의 전화를 하지 않았으며 오히려 피고인 1에게 문자메시지 전송과 휴대폰 통화에 의해 증거인멸을 시도한 점, 대형건설업체를 운영하는 피고인 1이 단지 지역특산품 정도를 주기 위해 공사다망한 피고인을 만나자고 한 다음 광주에서 올라와 단 둘이 은밀히 만났다고 보기는 어려운 점, 피고인 1이 내용물을 밝히지 않았음에도 불구하고 피고인이 그에 관해 묻지도 않은 채 피고인의 여동생 집에 배달시켰으므로 무엇이든 수령할 의사가 있었다고 볼 수 있는 점, 한여름에 실제 굴비상자의 무게인 3㎏을 훨씬 초과한 11.6㎏의 굴비상자를 받았으면 가정주부인 피고인의 여동생 공소외 3으로서는 당연히 내용물을 확인한 후 피고인에게 통보하였다고 보는 것이 상식에 부합하는 점, 인천광역시장인 피고인이 자신의 관할지역으로 사업장을 옮겨 회사에 대한 지원을 청탁한 건설회사 사장을 야간에 사복을 입고 은밀히 만난 자리에서 그가 뭘 좀 준비해 왔다고 하면 당연히 현금이거나 상당한 가치 있는 물건을 청탁 목적으로 가져왔다고 생각했을 것이라고 해야 일반인의 상식에 부합한다는 점, 피고인에게 뇌물수수 범의가 없었다고 판단하기 위해서는 피고인 1이 가져온 물건이 무엇인지 면전에서 확인하거나 구체적으로 내용물을 물어본 후 필요한 반환조치 등을 했어야 할 것이라는 점 등에 비추어 피고인은 피고인 1로부터 뇌물로 제공되는 것으로 인식하고 현금 2억 원이 든 이 사건 굴비상자를 받았다고 해야 함에도, 원심은 피고인이 피고인 1로부터 수수한 굴비상자에 들어 있는 물건이 뇌물이라는 점을 인식하지 못하였다고 사실을 오인한 나머지 이 부분 공소사실에 대해 무죄를 선고하는 위법을 범하였다.

(2) Legal principles

① At a long time after two emergencyrs in the instant case were delivered to the Defendant’s female house, it is presumed that the Defendant confirmed its contents. However, as long as the Defendant and female her female are denied, the prosecutor was unable to readily conclude other evidence, and thus, prosecuted the Defendant for acceptance of “an amount-specific bribe” within the scope of the Defendant’s criminal intent reduced favorable to the Defendant. Even if the Defendant knew that he would receive local specialty from Defendant 1, as alleged by the Defendant, the “brainity” cannot be denied in light of the relationship between the Defendant and Defendant 1, contact, solicitation, and acceptance circumstances.

② Defendant 1 requested the Defendant to provide support to Nonindicted Co. 1 and consented thereto, and thus, it is recognized that the relationship of consideration and solicitation is recognized. Accordingly, even if ordinary and courtesy gifts are given, it is recognized as a bribe in relation to his duties. In this case, insofar as Defendant 1 was aware that the reason that Defendant 1 contacted the Defendant was to request support to Nonindicted Co. 1, who moved to Incheon to his domicile, Defendant 1 should not receive any things that Defendant 1 prepared even if they were dead, the crime of acceptance of bribe is established.

③ The crime of offering of a bribe and the crime of offering of a bribe are, in principle, in cases where there is no agreement between the donor and the recipient to give and receive the bribe exceptionally, ask the donor for the liability of the crime of offering. However, as in this case, Defendant 1, who is the donor, attempted to give and take the delivery of the bribe to the donor, who was directly the recipient, and then attempted to give and take the bribe to the donor, and then deliver it to the female house with the consent of the defendant, not only Defendant 1 who is the donor, but also the recipient, should be punished in accordance

Nevertheless, the lower court erred by misapprehending the legal doctrine on a bribe, thereby finding that Defendant 1 offered a bribe to the Defendant, but the Defendant did not receive any valuable money or goods exceeding the scope of ordinary and courtesy gifts, thereby not establishing the crime of acceptance of bribe, thereby rendering the Defendant not guilty of this part of the facts charged.

B. Defendant 1

When the defendant moved the head office of the non-indicted 1 corporation to Incheon, he did not approach to the solicitation of the case where the defendant 2 was met with the introduction of the non-indicted 2 for the purpose of conducting the courtesy personnel affairs in the City Mayor, and he did not approach to the solicitation of the case. The second defendant 2 came to hear the horses on the welfare facility fund from the defendant 2 several times in Mannam, and he understood to the purport that the fund or support fund to be used for the fund would be prepared. The defendant who is in the place of business in Incheon would not refuse the request, and therefore, the defendant 2 provided the emergency situation with 20 million won since he could not refuse the request. In relation to the provision of the above money, there was no request made to the defendant 2 and there was no plan to make a near future solicitation, and if the defendant 2 delivered the money of this case to the Incheon Metropolitan City Wldong Report Center, the defendant would have been distributed the amount of KRW 200 million to the welfare fund in accordance with the legitimate procedure, and the defendant 14 is not sentenced to the above defendant.

2. Determination

A. Judgment on the grounds for appeal by the prosecutor (the part against the defendant 2)

(1) Summary of the facts charged

Defendant 2, holding office as the Mayor of Incheon Metropolitan City from July 2002, while performing the duties of overall control over the administration of Incheon Metropolitan City, including the duties related to the ordering construction of the City;

At around 12:00 on May 15, 200, Defendant 1, the representative director of Non-Indicted 4 corporation, was introduced through Non-Indicted 2 at the Guro-gu, Incheon Metropolitan City Lyalian Tourist Hotel restaurant, and around that time, upon Defendant 1’s request to the effect that Non-Indicted 1 corporation, which was taken over by Non-Indicted 4 corporation and moved its head office to Incheon, can grow as a Incheon local enterprise. On July 30, 2004, contact with the Non-Indicted 1 corporation by receiving a request from Defendant 2 at Defendant 1 again at Defendant 1’s request. On August 23, 2004, Defendant 1 promised to do so on the following day at Defendant 1’s request.

On August 24, 2004, at around 22:20, Defendant 1 met and Defendant 1 consented to the offer of money and valuables, “In response to the offer of money and valuables, as he has been prepared for his sex so that one may grow in Incheon,” and at around 22:40 on the same day, Defendant 1 sent it to the house of the female 3, which is located in the (detailed address omitted) and received KRW 200 million in cash from the mining emergency.

(2) Defendant 2’s legal action

Defendant 2 consistently reported Defendant 1 to the police, prosecutor's office, and court of first instance until July 30, 204 (title omitted), and told Defendant 1 to help him go to the Incheon area if he had come to know of it. However, it is consistent with the request of the Mayor to offer funds to help him at the end of the year, so it would be said that Defendant 1 would have been able to help him to go to the next day. On August 24, 2004, Nonindicted Party 2 would not have come to know of the fact that Defendant 3 had no way to go to the next day, and Defendant 1 would not have been able to go to the next day, and Defendant 2 would not have come to go to the next day after the first day after the second day of the first day of the first day of the second day of the first day of the second day of the first day of the second day of the first day of the second day of the second day of the second day of the second day of the year of the first day of the second day of the first day of the second day.

(3) A statement by Defendant 1, the donor

(A) Statements consistent with Defendant 2’s defense

Defendant 1 did not discover that Defendant 2’s speech and behavior was unique, and there was no particular audit indication. When Nonindicted 3’s house arrives with Nonindicted 3, Defendant 1 stated that himself and driver Nonindicted 5 was merely a fluorous act. Defendant 2 stated in the lower court’s trial that “it would be desirable for public officials to help in a fluorial facility,” and that “I would like to give money to public officials, instead of giving money, I would like to listen to the awareness, and that it was not appropriate for Nonindicted 1 corporation to help in a fluorous and fluorous manner, rather than giving money to help in the fluorial process,” and that it was not appropriate for Defendant 2 to have fluorous and fluorous, “I would not receive money and valuables” in a space where I would not receive money and valuables from Defendant 2.

(B) A statement that is not consistent with Defendant 2’s lawsuit

On the other hand, at the prosecutor's office and the court below's court court's decision on July 30, 2004, Defendant 1 thought that when Defendant 2 met, Defendant 2 demanded money from Defendant 2 to hear the words "domination of welfare facilities", Defendant 1 went to Incheon by inserting cash of KRW 200 million. On August 24, 2004, Defendant 1 stated that Defendant 2 was aware of the fact that Defendant 2 was about to receive money from Defendant 2, and that Defendant 1 was about to receive money from Defendant 2, and that it was not considered that it was a local special product that was brought to Gwangju.

In addition, Defendant 1, at the court of the trial on August 24, 2004, deemed Defendant 2 to have prepared for the payment of money, but this talked to have each other delivered cash so that it can be consumed, and on August 31, 2004, Defendant 1 attempted to receive KRW 200 million in the press, and when the investigation was commenced, Defendant 1 made a voluntary report to Nonindicted 5, a driver Nonindicted 5, who made a voluntary report to give money on September 1, 200 the next day, sent his intention to make a voluntary report by sending the phone to the Incheon Metropolitan City funeral Office, and on September 3, 2004, Defendant 2, as the mobile phone held by Nonindicted 5, Defendant 2, who received money from Defendant 2, was not able to report the change of money to Defendant 2, and Defendant 2, who did not report the change of money to Defendant 2, and Defendant 2, who did not receive money.

(4) recognised facts

According to the evidence duly adopted and examined by the court below and the statements by the Defendants and Nonindicted 5 of the parties, the following facts can be acknowledged.

(A) The situation prior to the delivery of a contingency

1) Defendant 1’s acquisition of Nonindicted Co. 1 and relocation of its head office

Defendant 1, as the representative director of Nonindicted Co. 4 located in the Jeon-gun, Jeonnam-gun on February 2004, acquired Nonindicted Co. 1 corporation with high recognition in the field of civil engineering works and apartment construction works as a large construction company, and the competitive regional construction company is less than a competitive regional construction company, and around March 13, 2004, Defendant 1 moved the head office of Nonindicted Co. 1 corporation to Incheon Metropolitan City, which is determined to increase demand for construction works in the future due to the designation of

2) Defendant 1 and Defendant 2’s first met

① On May 15, 2004, at around 12:00 a Saturday, Defendant 1, along with Defendant 2, asked Defendant 2 to examine Defendant 2 at a restaurant of the second floor of the Namdong-gu Incheon Metropolitan City, Namdong-gu, the second floor of the Young-gu, Incheon, and asked Nonindicted Co. 1 to the effect that he could grow into a local enterprise.

② Defendant 2 told Defendant 1 that “The moving of a construction company under the name of Hanyang to Incheon is an ASEAN Korea-do government. It is one of the efforts to attract a good company in Incheon, and that Hanyang is moving its headquarters to Incheon. It is the head of the king. It is not the company to move to Incheon, but the employees of Incheon would also move to Incheon. It is changed to employ a large number of human resources of Incheon. If so, Defendant 2 would directly attend the event by relocating Hanyang to Incheon. On the other hand, Defendant 2 told Defendant 1 that “I will help Korea-do government order the Incheon Viewers to move to Incheon.” On the other hand, public relations is good for Korea-do government relations, and that it is possible to listen to the horses attracting the company, so it is possible to prepare an office staff and to participate in the event.”

3) Defendant 1 and Defendant 2’s second fully met

① On July 29, 2004, Defendant 1 received proposals from Defendant 2, 2004, on July 30, 2006, Defendant 2 met Defendant 2 at the following day, on July 30, 200:20, the second floor of the Incheon (detailed address and building name omitted) building.

② Defendant 2’s cell phone (detailed number omitted) used at the time was admitted to Nonindicted 6’s name, Nonindicted 7’s wife, and was cut to Defendant 2 on December 2003. Since then, Defendant 2 used the said (detailed number omitted) mobile phone for personal purposes by concerns over the solicitation of the (detailed number omitted) mobile phone used for public duties. Defendant 1 and the third delivery date also used the said mobile phone for contact.

③ At around 10 minutes, including waiting time to turn to the left at a passenger vehicle from Dong 286-1, Dong 2 apartment 102, Dong 602, Dong 286-1, Dong 286-1, Dong 2, and 602, Defendant 2, who is the main place operated by Defendant 2, is located in a place where approximately 10 minutes are required, including waiting time to turn to the left. At that time, Defendant 2 made a direct promise to (title omitted), by telephone, at around 19:30, to 200, by dividing the mother into the front gate 19:30, and at around 20:0, the 10, Dong 286-1, Dong 2, Dong 102, and 602, Dong Do 102, Dong Do 102, and Do Do ro Do ro ro ro ro ro ro ro ro o, and the ro pa was carried out by drinking.

④ As above, Defendant 2 asked Defendant 1 to the extent of the progress of the Incheon migration of the employees of Nonindicted Co. 1, as well as the employees of Nonindicted Co. 1, and tried to employ a large number of the employees of Nonindicted Co. 1, the employees of the Incheon metropolitan community again, or intended to help welfare facilities in the Incheon metropolitan community, once more than once, discussed about the following: Youngdo, Cheongdo, Cheongdo, Cheongdo, Cheongdo, Cheongdo, Cheongdo, and Gyeongdo, and Kado, and the role of Incheon as the logistics base due to the revitalization of the Geongdo, etc.

(B) The circumstances at the time of preparation of the emergency

① On August 21, 2004, Defendant 1 asked Defendant 2 to talk by telephone, and asked Defendant 2 to communicate again on August 23, 2004. On August 23, 2000, at the office of Nonindicted Co. 4 located in Gwangju, Defendant 1, the Vice Minister of Accounting and Accounting of Nonindicted Co. 4 and Nonindicted Co. 10 in charge of accounting affairs of Nonindicted Co. 9, as the Vice Minister of Accounting and Accounting of Nonindicted Co. 4 and Nonindicted Co. 10, the Vice Minister of Accounting and Accounting of Nonindicted Co. 9, the Vice Minister of Non-Indicted Co. 4 and Nonindicted Co. 10, who are in charge of accounting affairs of Nonindicted Co. 9, agreed to prepare KRW 200,000 in cash from the following day. On the same day, Defendant 2 sent a telephone to Defendant 2, who agreed to do so

② On the other hand, upon Defendant 1’s instruction, Nonindicted 10 sought two copies of a white styp in the large-scale market near the office of Nonindicted 4 Co. , Ltd., on which the words “Yeongsungsung” and the words “Yeungsungsung” are printed, such as one styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp styp sum, and Nonindicted 11 divides KRW 200,000 into the upper and white styp styp styp s.

③ 당시 공소외 4 주식회사의 은행계좌에서 인출해 온 현금 2억 원은 1,000만 원씩을 100만원 10다발 한 묶음으로 하여 가로와 세로로 한 번씩 압축시킨 다음 플라스틱 끈으로 묶어 놓은 상태였는데, 공소외 10은 먼저 나무결 무늬의 상자에 1,000만 원 묶음 10개 합계 1억 원을 나누어 담았고 이어 흰색 스티로폼 상자의 내부 곡면을 칼로 베어 직각으로 만든 후 나머지 1억 원을 그 안에 담았으며, 흰색 스티로폼 상자의 뚜껑이 잘 닫히지 않자 뚜껑이 벌어지더라도 바깥에서 쉽사리 돈인 사실을 모르도록 흰 종이로 돈 다발을 덮은 다음 뚜껑을 닫았고 위 상자들을 모두 노란색 상자봉합용 테이프로 감싸 봉하였으며 다시 위 보자기로 상자들을 모두 쌌는데 이들 굴비상자(이하 ‘이 사건 굴비상자’라 한다)는 겉보기에 굴비가 든 보통의 굴비상자와 다름이 없었으나 현금 1억 원이 담긴 나무결 무늬 상자는 무게가 11.5㎏가량, 현금 1억 원이 담긴 흰색 스티로폼 상자는 무게가 12㎏가량 되는 것이었다.

④ On August 24, 2004, on the following day, Defendant 1 loaded the instant emergency operator to a car driven by Nonindicted 5, a driver, and arrived first at the (title omitted) beer’s house in Incheon at around 20:00 on the same day. Defendant 1 was waiting for the instant emergency operator in a nearby public parking lot without being loaded to the intersection between automobiles. In addition, Nonindicted 5 was waiting for the instant emergency operator in a nearby public parking lot.

① At around 20:00 on August 24, 2004, Defendant 2 left the exclusive market road and arrived at the house in parallel, such as half-strings, etc., followed again, left the exclusive motor vehicle and left the road in front of the growth beer, and then left the driver and the performance expenses. At the (title omitted), Defendant 2 visited Defendant 1 at the (name omitted) vocational beer's office in the (name omitted) vocational beer's office in the middle of the middle beer's office in the middle of the middle beer's office in the middle of 10 hours and talked 2 hours again.

② At the time, Defendant 1 explained to Defendant 2 that the Incheon migration of the employees of Nonindicted Co. 1 was being delayed against the labor union, and talked about his part of the business activities in the Incheon area, and Defendant 2 took the personal ties, including the difficulties arising in relation to the implementation of the Incheon Free Economic Zone and the second landing bridge.

③ 피고인 1은 같은 날 22:20경 피고인 2와 양주 1병을 다 마시고 헤어질 분위기가 되자 ‘시장님, 제가 조금 준비해 가지고 왔습니다’라고 하며 무언가를 받아달라는 부탁을 하였고, 이에 피고인 2는 ‘나는 돈을 받지 않습니다’라고 거절하는 의사를 표시하였으나, 피고인 1이 다시 ‘조그마한 제 성의입니다’, ‘광주에서 여기까지 가져 온 조그마한 선물이고 별것도 아니니 성의를 봐서 받아 주십시오’, ‘시장님, 약소합니다’라는 취지의 말을 하며 다시금 받아 줄 것을 청하자 피고인 2는 조금 머뭇거리다가 ‘집에 지금 사람이 없으니 동생 집에 가져다 놓으라’고 하면서 (명칭 생략)생맥주집의 여종업원으로 하여금 메모지를 가져오게 한 다음, 그 메모지에 피고인 2의 여동생인 공소외 3이 사는 아파트의 이름과 동호수를 적어 피고인 1에게 건네주면서 ‘이 앞 큰 사거리에서 대각선 방향으로 건너서 큰길로 가다가 고가에 진입하기 전에 우측 아파트로 진입하세요’라고 길을 알려 주었고, 이어 22:21경 (상세번호 생략) 휴대전화를 이용하여 공소외 3에게 전화 연락을 하여 ‘누가 뭘 좀 가지고 갈 것이니 받아 두라’고 하였다.

④ Since then, Defendant 1 calculated the drinking value with Nonindicted Co. 4’s corporate credit card, and around 22:30 on the same day, Defendant 1 started from Nonindicted Co. 3’s office on a passenger car parked in a public parking lot following the building following the building, which was cut to the first floor of the (title omitted), and she saw out in the corridor, and came to go back with Nonindicted Co. 3’s office, and Defendant 2 went to go back to the house on the 10 to 15 minutes, following the building.

⑤ At around 22:40 on the same day, Nonindicted 3 arrived at the Incheon apartment, and divided it into two parts with Nonindicted 5 and one driver, respectively, at the intersection of passenger cars, and Defendant 1 divided the elevator into the labels of Nonindicted 3’s house (number omitted), and Nonindicted 3 asked Nonindicted 3 to read “Influence,” with a personal phone inside the house. After Nonindicted 3 opened the front door door, Nonindicted 3 opened the front door door and opened it on the front floor of the entrance, and left the house of Nonindicted 3.

④ Nonindicted 3 was living together with 24 years of age and 27 years of age in the above (including apartment house omitted), and Defendant 2 was living together in the same apartment (Dong lake omitted) as the denied hospital was hospitalized for a long time.

(D) Circumstances after the provision of an emergency situation

1) Defendant 2’s schedule and telephone communications details

① On August 25, 2004, Defendant 2 returned to Incheon International Airport around 17:15, on August 29, 2004, the New Speaker of Incheon Metropolitan City Council, and on August 26, 2004, he returned to the National Assembly at the late time after he started the business trip on August 27, 2004, and returned to the Incheon International Airport on August 29, 2008.

② On the other hand, at around 12:50 on August 26, 2004, Nonindicted 3 contacted Defendant 2’s house to the market secretary, and exchanged with Defendant 2 once. Defendant 2 called Nonindicted 3 using a mobile phone (detailed number omitted) from August 26, 2004, on 14 seconds around 22:50 on August 26, 2004, around 08:05, around 5 seconds on August 27, 2004, on 209:2 seconds around 09:25 on August 28, 2004, and around 1:48 on August 29, 2004, using a mobile phone at around 18:48 seconds (detailed number omitted).

③ However, after August 24, 2004, Defendant 2 did not contact Defendant 1 by September 1, 2004, on the day following the day on which he reported to the Clock Report Center to the Clock Report Center.

2) Defendant 2’s report

① At around 07:30 on August 30, 2004, Nonindicted 3: (a) put two emergencyrs of the instant excavation in the house of the apartment house without sealing it in the tape; (b) put the two emergencyrs of the instant case into a decentralization instead of the refluent refluor of the refluor of the refluor of the refluor of the refluor of the refluor of the refluor of the market, and (c) let Nonindicted 12, a market-only driver of the dedicated vehicle

② At around 08:20 on the same day, Defendant 2: (a) arrived at the office building of Incheon Metropolitan City with exclusive lanes in the market; (b) brought Nonindicted 13 and 14, who is the market secretary, to the market room; (c) had been in the Chinese business trip to Nonindicted 15, who is the viewing auditor, and (d) reported to the viewing reporting center at the viewing clean reporting center with the amount of USD 5,000,00 that was received from the Chinese business trip; and (b) Nonindicted 15 reported to the viewing clean reporting center with the content that Defendant 2 was provided by the non-indicted 15.

③ Defendant 2 established a clean report center on January 25, 2003 by the Code of Conduct for the Maintenance of Integrity of Public Officials and Presidential Decrees, and operated it in the viewing auditor room. Defendant 2 continuously emphasized the duty of integrity for public officials, and even with public officials, expressed their intent to prevent corruption.

④ In cases where a viewing reporting center directly or indirectly received money and valuables from a viewing public official in contrast to his/her own will, and where it is difficult for the donor to know or return it to the donor, it shall voluntarily report it to the viewing audit room, and where the donor is confirmed, it shall return it to the donor along with the letter in the name of the Inspector, and where the donor is not identified, it shall be operated at the end of the year by depositing the money and valuables with the money and valuables deposited by the Community Chest of Korea at the end of the public notice period, and where the donor does not find it until the expiration of the public notice period.

⑤ Defendant 2 filed a report on USD 2,00 with the viewing clean reporting center around April 2003, but the donor did not appear. As such, Defendant 2 deposited USD 2,00 with the money deposited with the Community Chest of Korea on December 2003.

3) Defendant 2’s communication

① Defendant 2 reported KRW 200 million in cash to the viewing clean reporting center on the day of reporting, and the police started investigation into the instant case on September 1, 2004 by summonsing Nonindicted 3 on September 1, 2004, the following day of reporting.

② Accordingly, on September 1, 2004, Defendant 2 asked Nonindicted 6 to create a new mobile phone and received from Nonindicted 6 a text message stating that he joined the (detailed number omitted) mobile phone from his mother, and Defendant 1’s (detailed number omitted) mobile phone managed by Nonindicted 5 as the above mobile phone in the same day, and Defendant 1’s (detailed number omitted) mobile phone management of Nonindicted 5’s (detailed number omitted) mobile phone in the same amount, five times per hour. There is no fingerprints. There is no fingerprints. It is difficult to conduct an investigation, and he is well aware of theme. It will be well-known. The Defendant 2 sent a text message stating that “I will contact.” On September 3, 2004, Defendant 204, Defendant 2 sent a text message stating that “I will find an attorney-at-law without know of the fact.” On September 3, 2004, Defendant 3 sent this case’s emergency phone to Nonparty 4 as the result of the investigation, and appointed Defendant 1’s attorney on September 13, etc.

(E) Current status of bid for construction works by Nonindicted Co. 1 and Nonindicted Co. 4

① From the time when Defendant 1 moved the head office of Nonindicted Co. 1 to Incheon, Nonindicted Co. 1 did not work in Incheon. However, on August 31, 2004, Nonindicted Co. 1 participated in the bidding of the Incheon Free Economic Zone Authority and the Incheon Free Economic Zone Authority, which is in exclusive charge of dealing with various administrative affairs, such as housing supply, building permission, environmental preservation, etc. within the Incheon Free Economic Zone (St., Songdo, Young-dong) of Incheon Metropolitan City and the Public Procurement Service, and went away. Defendant 1 was preparing to participate in bidding by organizing a joint subcontractor with 5% shares in the construction of the school-interest sewage treatment plant (the estimated amount of KRW 180 billion) to be ordered by the Construction Headquarters of Incheon Free Economic Zone. However, Nonindicted Co. 1 was preparing to participate in bidding by forming a share of 40% in the construction project of the Songdo sewage treatment terminal (the estimated amount of KRW 13.5 billion) scheduled to place an order in the Incheon Free Economic Zone Authority.

② On the other hand, Nonindicted Co. 4 was under construction upon receiving an order from Incheon Metropolitan City around 1998 to complete the construction of the household-west Road.

(f) Defendant 2’s efforts to attract companies

From among the 100 major companies in Korea, the company with its headquarters in Incheon Metropolitan City is not more than 4-5 and there was approximately 150 construction companies nationwide, but only one company with its headquarters in Incheon Metropolitan City until early 2004. The defendant was unable to hold a campaign to actively endeavor to attract the company in order to promote the Incheon economy while going out of Incheon Metropolitan City. Since he was elected as the Mayor of Incheon Metropolitan City, it was important to attract the large company from July 2002 to promote the future of the Incheon area and continuously induce the relocation of the headquarters to the large company, to establish a public-private partnership promotion group and consult with each domestic company and government-invested institution and to promote it as a major policy. As such, on January 19, 2004, the defendant 2 made efforts to induce the construction of the headquarters in Incheon Metropolitan City and the government-invested institution before the Incheon Metropolitan City.

(5) Review

(A) Whether the Defendant was aware that cash in an emergency situation was given and received

① Defendant 1, like the above facts, has prepared for what is the Defendant 2 to drink 100 million won while drinking 40 million won at (title omitted) beer and do not appear to be Defendant 2, and it does not seem that Defendant 2 would have prepared for the replacement of 40 million won in advance, or that it would be possible for Defendant 2 to do so. As long as Defendant 2 did not know that it would have been difficult for the 200 million won to go to the above 3-day apartment building because of the fact that Defendant 2 did not come to know of the fact that it would have been difficult for 30 million won to go to the above 4-day emergency call, etc., and that it would have been difficult for the 2-day emergency call to go to the 3-day apartment building, which is one of the parties to the 4-day emergency call, and that Defendant 1 would not have come to go to the house of 300 million won, which is one of the parties to the 3-day emergency call after 2000 billion won.

그리고 피고인이 공소외 3으로 하여금 이 사건 굴비상자를 쌌던 보자기를 교체하게 하여 클린신고센터에 신고했거나 신고시 공여자를 묵비하였거나 이 사건이 언론에 보도되고 경찰의 수사가 개시된 이후 피고인 1에게 휴대전화로 걱정하지 말라는 등으로 연락한 사실이 있다고 하더라도, 이 사건 굴비상자가 공소외 3에게 전달된 후 현 시의회 의장단이나 전임 시의회 의장단과의 만찬에 참석하거나 중국출장을 다녀오는 등으로 인천광역시장으로서 다망한 업무를 처리하느라 위 굴비상자를 잊어버리고 있다가 6일 가량이 지난 후 비로소 그 안에 현금이 들어 있는 줄 알게 되었고, 그에 따라 수사기관 등으로부터 그 현금을 장기간 보관하였으니 뇌물로 그것을 수수하였음에 틀림없을 것이라는 오해를 받아 그 혐의를 벗어나는데 심각한 애로를 겪거나, 어쩌면 그 혐의를 벗지 못하고 해를 입게 될지도 모른다는 두려움과, 피고인 자신을 믿고 성의껏 위 굴비상자를 마련하여 가져다 준 피고인 1을 피고인 혼자만 살아남자고 공개한다는 것은 사람의 정리(정리)상 차마 하지 못할 짓이라는 망설임이 뒤섞인 복합적인 심리상태에서 그와 같은 행위를 하였을 수도 있다고 못 볼 바 아니므로 굴비상자 보자기를 교체하였다거나 공여자를 묵비하였다거나, 피고인 1에게 휴대전화로 걱정하지 말라고 연락하였다는 피고인의 행위만을 들어 피고인이 피고인 1로부터 위 굴비상자를 받았을 때 뇌물을 수수한다는 인식을 갖고 있었다고 단정하기도 어렵다고 할 것이다.

Therefore, Defendant 1 and (Name omitted) Defendant 2’s statement that he was unaware of what he was in the emergency situation of the instant case until he was able to drink and drink drinking at the Scamhouse, as well as the Chinese business trip at the house of Nonindicted Party 3 until he was sled.

② As seen earlier, Defendant 1’s statement can be divided into two parts on behalf of others. One of them is Defendant 2’s statement to the effect that Defendant 2 merely consented to Defendant 2’s offer that he wishes to give what is while viewing it as a minor gift without having any specific knowledge of the substance of the goods. One of the other is Defendant 2’s statement to the effect that Defendant 2 received cash KRW 200 million from Defendant 1 as a bribe in relation to the duty of the Incheon Metropolitan City Chapter in charge of construction work-related business, etc. ordered by Incheon Metropolitan City for Nonindicted Incorporated Company 1.

Of the above statements by Defendant 1, the former statement that Defendant 2 was unable to know the contents of the article he gave rise to the allegations by Defendant 2. On the other hand, Defendant 2’s statement that Defendant 2 was aware of the fact that he was in receipt of the emergency situation of the instant case with the knowledge of bribe amounting to KRW 100 million does not appear to have been shown to Defendant 2, and it does not appear to be specific about the contents of the article he has been prepared, or it does not appear to have been sufficiently explained about what it would be done. Since the above emergency situation was delivered to Nonindicted 3’s office, it was hard to take as a person who received a large amount of cash amounting to KRW 20 million on the part of Defendant 2,00,000, which was an anonymous victim of the instant case, and that Defendant 2 did not appear to have been aware of the emergency situation of the instant case with Defendant 3, who was an anonymous victim of the instant case, and did not appear to have been present at the market at the time of the report or its execution.

③ In addition, the prosecutor’s office and the lower court’s statement made by Nonindicted Co. 4 and Nonindicted Co. 10 as evidence proving the facts charged, and the police and prosecutor’s statement made by Defendant 1 Nonindicted Co. 5. However, the above Nonindicted Co. 10’s statement was about the process of withdrawing cash from the account of Nonindicted Co. 4 at the branch of the foreign exchange bank Gwangju to the extent of gathering cash. The above Nonindicted Co. 5’s statement, along with Defendant 1, was carried by the above operator of the digging emergency, and waiting for the above operator from Gwangju to Incheon, and Defendant 1 was waiting in the public parking lot around the beer and (name omitted) at the beer and (name omitted), and it was related to Nonindicted Co. 3’s delivery with Nonindicted Co. 1 and Nonindicted Co. 3, and thus, the above Nonindicted Co. 2 did not directly recognize that he would bring about things from Defendant 1 in the name of the beer, and it could not be acknowledged that he would directly prove that he would bring about the above goods from Gwangju within a certain period of time.

④ In addition, the police, the prosecutor's office, and the court below's testimony made by Non-Indicted 3 did not confirm what they contain after being delivered with the contingency in the instant case by Defendant 1, and therefore, it was not known to Defendant 2 as to what kind of cash, etc. Accordingly, it is difficult to conclude that Defendant 2 accepted and received 200 million won, which were contained in the emergency in the instant excavation, in light of the nature and nature of the emergency in the instant case or the telephone call time between Non-Indicted 3 and Defendant 2. Although Non-Indicted 3 received the emergency in the instant case, it is difficult to conclude that Defendant 2 accepted and received it as a bribe.

(B) Whether the goods received from Defendant 1 can be assessed as a bribe

The legal interest in the crime of bribery is the process of performing duties of a public official, the trust in the society, and the impossibility of performing duties. Since the bribery does not require any solicitation or unlawful act, it does not require a special solicitation to recognize the bribe of money and valuables received. It is sufficient that money and valuables have been received in connection with his duties, and there is no need to have an individual job act or a quid pro quo relationship. When a public official receives money and valuables or other benefits from a person subject to his duties, it shall be deemed that it is merely an exceptional consideration in light of social norms. Unless there are special circumstances, it shall not be deemed that there is no connection with his duties. If a public official received money and valuables in connection with his duties, even if he received them in accordance with his duties, such money and valuables shall be deemed a bribe (see Supreme Court Decision 200Do1442, May 28, 2004). It shall be deemed that there is a special relation between a public official and a quid pro quo for the performance of duties of a public official, and what kind of benefits should be determined by the public official, in light of social trust and interests.

However, as seen earlier, as the Mayor of Incheon Metropolitan City, the defendant actively made efforts to attract the same enterprises as non-indicted 1 corporation. Accordingly, the employees of the non-indicted 1 corporation who moved their headquarters to Incheon Metropolitan City were also asked to move to Defendant 1. The non-indicted 1 corporation's Metropolitan City Mayor discussed Defendant 1's relocation of the headquarters of the non-indicted 1 corporation and tried to maintain a close relationship with the non-indicted 1 corporation without any string at the (name omitted) uniform meeting of the defendant's house, and further discussed about the transfer of the headquarters of the non-indicted 2 corporation at the non-indicted 1 corporation at the time of the non-indicted 2's death, regardless of the fact that the defendant did not receive any money from the defendant 1, and the defendant did not receive any money from the non-indicted 1 corporation and the non-indicted 2 corporation's non-indicted 2's non-indicted 1 corporation's non-indicted 2's non-indicted 3000 million won. It is considered that the defendant 1 corporation and the non-indicted 2 corporation did not directly receive any money from the defendant 2.

On the other hand, in order to establish the crime of offering a bribe, the act of offering a bribe and taking the goods, etc., which are valuable in money from the other party, are necessary, and it does not necessarily mean that the crime of offering a bribe should be established at the other party (see Supreme Court Decision 87Do1699, Dec. 22, 1987). Thus, it is difficult to view that the crime of offering a bribe should be established against Defendant 2, who did not have the knowledge of the nature of the bribe of the goods he intended to give, on the ground that it constitutes the crime of offering a bribe to Defendant 1.

(6) Sub-determination

Therefore, even according to all evidence submitted by the prosecutor, when Defendant 2 took the words of receipt and delivery from Defendant 1 at around 22:20 on August 24, 2004 (title omitted), it is difficult to view that the delivery by Defendant 1 goes beyond the scope of ordinary and ordinary gifts under social norms, and it is difficult to say that Defendant 1 would bring about Defendant 3 to the house of Nonindicted 3 with the intention to receive money and valuables in recognition as being related to his duties. Therefore, the judgment of the court below which acquitted Defendant 2 of this part of the facts charged is just and there is an error of law by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles on bribe, without merit.

B. Determination on Defendant 1’s grounds of appeal

Defendant 1’s crime of this case is that the Defendant, as the representative director of Nonindicted Co. 4, took over Nonindicted Co. 1 corporation in construction business and moved its head office to Incheon Metropolitan City, giving a bribe of KRW 200 million in cash to Defendant 2, who is the Mayor of Incheon Metropolitan City, and the nature of the crime cannot be deemed to be less

However, at the time of delivering the instant contingency to Defendant 2, the Defendant did not offer a bribe for the purpose of specific solicitation as to any pending issue since Non-Indicted 1 Company or Non-Indicted 4 Company did not have been contracted by Incheon Metropolitan City. Defendant 2 appears to have misunderstood that Defendant 2 demanded a welfare facility by stating that it will pay welfare fund, and Defendant 2 would have paid money to Defendant 2 to use it for an appropriate purpose. Defendant has retired from the full office of the representative director and director of Non-Indicted 4 Company as of April 18, 2005. Defendant offered a donation of KRW 249 million up to now. Defendant offered a donation of KRW 16 million to the elderly living alone with Non-Indicted 16 since 1999. Defendant implemented a project to support the elderly with dementia or to offer a scholarship to the head of boys and girls. Defendant’s family relationship is too important in the future. Defendant’s argument that this case’s family relationship is too diverse and unfair.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and since the defendant 1's appeal is with merit, the judgment of the court below against the above defendant shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the

Criminal facts and summary of evidence

Criminal facts and summary of evidence against Defendant 1 recognized as a party member are the same as those stated in each corresponding column of the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act.