Whether a public official in the construction of the Military Administration or in the field of farmland belongs to the Governor's duties (permission for extraction of aggregate) is the subject of the offense of good offices bribery

The Defendant, who worked for the construction of the Gun Office and the farmland fraternity at the time of receiving the instant money, cannot be deemed as having a relationship of direct or indirect relation to the public notice affairs of the prospective aggregate extraction area, which belongs to the Governor’s duties, and cannot be deemed as a person who has a position to have a legal or factual effect on the above duties of the Do Governor. Thus, the Defendant cannot be deemed as the subject of

Article 132 of the Criminal Act

Defendant

Defendant

Jeonju District Court Decision 83No12 delivered on October 26, 1983

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

We examine the Defendant’s grounds of appeal.

1. The criminal facts of the defendant, which the court of first instance affirmed by the court below, are as follows.

In other words, the Defendant received a bribe of KRW 200,00 and received a bribe under the pretext that, on November 1, 1981, the Defendant was a public official of Grade VII transferred to the same and farmland fraternity, and around November 1, 1981, at around 11:00, at the request of Non-Indicted 1 to obtain a notice of the planned river extraction permission area from the Jincheon-ri 807 river department, if he applied by the Dong around November 1981, he consented to the notification of the planned river extraction permission area from Non-Indicted 1, and using the status as a public official to arrange the above planned area belonging to the duties of the Governor of Jeollabuk-do branch, by taking advantage of the status as a public official, the Defendant received a bribe of KRW 200,000 under the pretext that the above planned area belongs to the duties of the Governor of Jeollabuk-do branch. However, "public official taking advantage of his status" in the constituent elements of the crime of bribery as defined in Article 132 of the Criminal Act refers to the status of a public official having direct or indirect relations with his duties.

According to the court below's final and conclusive facts, the defendant is a person who worked for the construction of the Jeju-Gun Office and the farmland fraternity that does not have any relationship with the above business of permission for aggregate extraction at the time of receiving the above money, and cannot be deemed to have a direct or indirect relationship with the public notice business of the planned area for permission for aggregate extraction which belongs to the duties of the Governor of Jeollabuk-do branch, and there is no data to regard that the defendant is in a position to legally or factually affect the above duties of the Governor of Jeollabuk-do branch. Accordingly, the first instance court did not err in the misapprehension of legal principles as to the elements of the crime of bribery, or in the misapprehension of legal principles as to the crime of

2. However, the lower court acknowledged the fact that the Defendant received KRW 200,000 in the name of Nonindicted Party 1 and made a public notice of the scheduled area for the extraction of river in accordance with Nonindicted Party 2’s on-site report of the planned area for the extraction of river located in 1982 prepared by Nonindicted Party 2, who was in charge of civil petition affairs related to the public notice of the planned area for the extraction of river in the construction and management of the National Office of Full-gun, and transferred his successor to the urban community on November 1, 1981, and requested the cooperation for Nonindicted Party 2, his successor, to receive the public notice of the planned area for the extraction of river, and arranged for Nonindicted Party 1 to receive the public notice of the planned area for the extraction of river in November 1, 1981. In light of the above facts, the lower court upheld the first instance judgment recognizing the establishment of the crime of the bribery.

However, if the purport of the judgment of the court below is that the defendant offered good offices for matters belonging to the duties of Non-Party 2, who is the public official of the Construction and Management of the Jeju-do Office, it is not consistent with the facts of the facts charged of this case or the facts at the time of the first trial, which held that the defendant offered good offices for matters belonging to the duties of the Governor of Jeollabuk-do Office, and according to the records (the investigation records No. 45) in regard to the river aggregate extraction site for which the defendant applied for by Non-Party 1 at the time of the lower order on December 1, 1981, it is recognized that the designation of the scheduled area was already handled by the Governor of Jeollabuk-do, and even according to the prosecutor's interrogation protocol of Non-Party 1, who was adopted by the court of first instance, he stated that the defendant offered good offices to the person in charge of the duties of the Governor of Jeollabuk-do, and thus, it does not coincide with the evidence of the judgment of the court of first instance and the facts charged of this case.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)