[1] The method of interpreting "illegal solicitation" as stipulated in Article 38-2 of the Framework Act on the Construction Industry

[2] In a case where a constructor provided money to the president of a reconstruction association deemed as a public official, whether the crime of offering a bribe constitutes the crime of offering a bribe without an unlawful solicitation (affirmative)

[1] In relation to the crime of offering a bribe to a third party under Article 130 of the Criminal Code, which is the legal interest protected by the law as to the fairness of the performance of duties by a public official, trust in society, and the impossibility of the performance of duties, where the execution of duties subject to such solicitation is related to a certain consideration relationship and the payment of consideration for the performance of duties is made, even if the performance of duties subject to such solicitation is not illegal or unjust, it may be deemed as an annual "illegal solicitation". However, in order to promote the proper execution of construction works and the sound development of the construction industry, it shall not be deemed that the "illegal solicitation" should be strictly interpreted even in the crime of violating Article 38-2 of the Framework Act on the Construction Industry, which is applied to all the general construction industry employees.

[2] In the case of a reconstruction association president, it is deemed a public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, so if the constructor provided money to the president of the reconstruction association in relation to his duties, the crime of offering bribe is established

[1] Article 130 of the Criminal Code, Article 38-2 of the Framework Act on the Construction Industry / [2] Article 133 of the Criminal Code

[1] Supreme Court Decision 2004Do3424 decided Jun. 15, 2006 (Gong2006Ha, 1384) Supreme Court Decision 2004Do1632 decided Jan. 26, 2007 (Gong2007Sang, 410)

Defendant 1 and four others

Defendant 2, 3, 4 and the Prosecutor

Attorneys Lee Yong-han et al.

Seoul High Court Decision 2006No537 decided July 21, 2006

All appeals are dismissed.

1. We examine the Prosecutor’s grounds of appeal.

According to the reasoning of the judgment below, with respect to the violation of Article 38-2 of the Framework Act on the Construction Industry, the court below held that the property or property gains issued to establish the violation of the above Framework Act on the Construction Industry must be in a quid pro quo relationship with the illegal solicitation, and the "illegal solicitation" refers to the solicitation contrary to the social rules and the principle of good faith. In determining this, the court below should comprehensively consider the contents of the solicitation and the amount of the property received or provided in relation thereto, form, and the integrity of the manager, who is the protected legal interest, and it does not necessarily require explicit solicitation. According to the facts of this case, the solicitation received by the defendant 1 does not necessarily require explicit solicitation. According to the facts of this case, "the contents of the solicitation made by the defendant 1, supra, by pretending the form of competitive bidding at the general meeting of partners on July 2, 2005, provide convenience to ensure the fixed payment of the construction contract, and there is no evidence that each statement made by the defendant 1 to the executive of the Framework Act on the Construction Industry constitutes an unlawful solicitation and payment of the construction work.

Examining the examination of evidence and the judgment of the court below up to the above judgment, it is not possible to find any violation of the rules of evidence or any illegality in incomplete deliberation as alleged in the grounds of appeal. In particular, in light of the fact that there is no other company seeking to participate in the reconstruction project of this case except the defendant 5 corporation, the defendant 5 corporation did not seem to have paid money to the head of the association in return for the "Conclusion of construction contract", the time of offering the money of this case is not immediately before or after the conclusion of the construction contract, and the fact that the time of offering the money of this case is not immediately after the conclusion of the construction contract, and it is denied that only the money of this case was not the cost of construction contract even after the commencement by the defendant 1

Furthermore, in comparison with the crime of offering a bribe to a third party and the crime of taking a bribe in breach of trust under the Criminal Act, the prosecutor asserts that the legal principle that "if the contents of the performance of duties are connected to the payment, such solicitation shall be an illegal solicitation" shall also apply to the crime of violating the Framework Act on the Construction Industry. This is the same as in the crime of offering a bribe to a third party under Article 130 of the Criminal Act, where the fairness of the performance of duties of a public official, trust in society, and the impossibility of the performance of duties, are protected, even though the performance of duties, which are the object of the solicitation, are not illegal or unjust, the solicitation that "illegal solicitation" is related to any consideration relationship and the delivery of the price for the performance of duties, such solicitation shall be deemed as an "illegal solicitation" (see Supreme Court Decision 2004Do3424, Jun. 15, 2006). However, it shall not be interpreted that the general purpose of this case is to ensure the sound development of the construction industry and the construction industry of construction work, as a public official.

2. We examine Defendant 2, 3, and 4’s grounds of appeal.

The money paid by the defendants to the reconstruction association president who is deemed a public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is established as a crime of offering of bribe only when it is provided in connection with the duties of the reconstruction association president.

Examining the above legal principles and the employment evidence of the first instance court maintained by the court below in light of the records, it is just that the court below found the defendants guilty of all of the crimes of offering of bribe in addition to the violation of the Framework Act on the Construction Industry, and it is not erroneous in the rules of evidence without properly deliberating as otherwise alleged in the ground of appeal.

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

Justices Jeon Soo-ahn (Presiding Justice)