[1] Whether the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established in a case where a public official, without receiving a bribe directly, let a witness deliver a bribe to another person (affirmative with qualification)

[2] The case denying the establishment of the crime of acceptance of bribe under Article 129 (1) of the Criminal Act on the ground that it is insufficient for the head of a Gun having the adviser of the branch office of the mountain association to view that the branch office of the mountain association received a case for the exercise of the opposition from the business operator

[3] In a case where there is a ground to reverse the defendant who was prosecuted for the crime of acceptance of bribe, whether the defendant should reverse it ex officio (affirmative)

[1] The crime of acceptance of bribe under Article 129(1) of the Criminal Act applies to a public official’s acceptance of a bribe in the course of performing his/her duties. In light of the fact that Article 130 of the Criminal Act separately provides that a public official shall be punished for the crime of acceptance of bribe against a third party in a case where a public official has a third party deliver a bribe without receiving a bribe directly, if the public official had a third party deliver a bribe to a third party without receiving a bribe, or for example, if the third party received a bribe from a public official’s private person or representative, or if there are other circumstances such as where a public official bears another person’s living expenses, etc. or bears another person’s obligation against the third party, such as where a public official receives a bribe and is exempted from expenditure, etc., the crime of acceptance of bribe is established under Article 129(1) of the Criminal Act.

[2] The case denying the establishment of the crime of acceptance of bribe under Article 129 (1) of the Criminal Act on the ground that it is insufficient for the head of a Gun having jurisdiction over the adviser of the branch office of the mountain association to view that the branch office of the mountain association received a case for the exercise of the opposition from the business operator

[3] The court below found the defendant guilty only for part of the facts charged of offering a bribe which is a single comprehensive crime against the co-defendant, and found the defendant not guilty for the remaining facts charged. The prosecutor appealed against the judgment below and did not appeal against the co-defendant. However, there is a ground to reverse part of the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which the court below found the defendant guilty, and the reason for reversal is common to the co-defendant who is prosecuted for the crime of offering a bribe. Thus, the part

[1] Articles 129(1) and 130 of the Criminal Act / [2] Article 129(1) of the Criminal Act / [3] Article 392 of the Criminal Procedure Act

[1] Supreme Court Decision 98Do1234 delivered on September 22, 1998 (Gong1998Ha, 2628)

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorneys Kim Hong-won et al.

Daegu High Court Decision 2001No377 delivered on December 11, 2001

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. We examine Defendant 1’s defense counsel’s grounds of appeal.

A. As to the acceptance of bribe with respect to each money received from Co-Defendant 2 (hereinafter Defendant 2) and from Non-Party 1 and 2

According to the reasoning of the judgment below, the court below found Defendant 2 guilty of offering various business convenience, such as accepting a request from Defendant 2 to remove waste reclaiming land owned by Defendant 2 on August 1, 1998 when Defendant 1 was in office as the head of the Gun from July 1, 1998. Defendant 2 knew that Defendant 2 was doing business in the Gun and requesting various business convenience, etc. to be offered. On August 1998, 198, the court below found Defendant 2 guilty of taking part in the defendant's business convenience, such as giving and receiving 2 million U.S. dollars, after being aware of the fact that Defendant 1 was doing business in the Gun, from the officer of the Gun on July 1, 1998.

Examining the evidence in comparison with the records adopted by the court below, the court below's decision that recognized the above facts of receiving money and valuables and accepted them as a bribe in relation to his duties is just, and there is no error of misconception of facts or misunderstanding of legal principles as to bribery due to violation of the rules of evidence, as otherwise alleged in the ground of appeal. The appeal on this point is without merit.

B. As to the acceptance of bribe as to the case of exercise acceptance received from Co-Defendant Kim Jong-sik

According to the reasoning of the judgment below, the court below found Defendant 1 guilty of receiving a bribe by receiving 900,000 won from Co-Defendant 1's 90,000 market value of the case from Kim Jong-tae in the office of the Rap Mountain Association, which was located in the afterman from March 1999 to June 1, 199. Upon examining the evidence adopted by the court below in light of the records, it can be recognized that the fact that Defendant 1 demanded Kim Jong-dae to donate the case for an event to the 900 copies of the case for the above period to the above mountain Association's branch of the Korea Warp Association, which was located in the Republic of Korea.

However, the crime of acceptance of bribe under Article 129(1) of the Criminal Act applies to a public official’s acceptance of a bribe in connection with his/her duties. In light of the fact that Article 130 of the Criminal Act separately provides that a public official shall be punished for the crime of acceptance of a bribe when he/she has received a bribe to a third person in exchange for an unlawful solicitation in connection with his/her duties, in cases where a public official, without having received a bribe directly, has another person receive a bribe to a third person without having received it, or where other person received a bribe to a third person, for example, in cases where a public official bears another person’s living expenses, etc. or bears another person’s obligation to such other person, such as where a public official receives a bribe and is exempted from disbursement, etc., the crime of acceptance of a bribe is established under Article 129(1) of the Criminal Act (see Supreme Court Decision 98Do1234, Sept. 22, 198).

Therefore, in this case, for the purpose of applying the crime of acceptance of bribe under Article 129 (1) of the Criminal Act to Defendant 1, the branch of the Raf Mountain Association must have the relation that Defendant 1 received the above several cases as a deceased person or representative of Defendant 1, or that the above branch of the Raf Mountain Association received the above several cases as the directly received by Defendant 1. According to the records, Defendant 1 was present at the counter-council, such as the above branch of the Raf mountain association as an adviser of the above mountain association, and most of the military residents are aware that the above branch of the Raf mountain association was a private organization managed by Defendant 1. However, it is insufficient to view the above branch of the above mountain association as being directly received by Defendant 1. Accordingly, the court below erred in the misapprehension of legal principles as to the facts that the above branch of the laf mountain association received the above part of the laf mountain association, and it did not examine and determine whether the above branch of the laf mountain association received the same extent as that Defendant 1 received by social norms.

C. As to the acceptance of bribe for KRW 10 million delivered by Defendant 2

According to the reasoning of the judgment below, the court below found Defendant 1 guilty of receiving the above money as a bribe of KRW 10 million,00,000,000,000,000,000 from Kim Jong-dae, from March 3, 200 and June 22, 200 of the same year. In light of the reasoning of the judgment of the court below, the court below held that Defendant 1 would make the words that Defendant 1 would interfere with Defendant 2's sexual indecent act of Defendant 1, and requested Defendant 2 to provide assistance, and that Defendant 2 received the above money by providing payment on two occasions, out of the church money which Nonindicted 3 used at his discretion, Defendant 2 received at his own discretion, and recognized this part of the facts charged.

In order to be subject to the crime of acceptance of bribe under Article 129(1) of the Criminal Act, Defendant 2’s payment of KRW 10 million to the church should be able to evaluate that Defendant 1 paid part of Nonindicted 3’s embezzlement instead of Nonindicted 3’s payment of the said money directly to Defendant 1. To this end, it should be acknowledged that there was a circumstance that Defendant 1 would have to pay the said money to the extent that it would have to be avoided for Defendant 1’s sexual indecent act against Nonindicted 3, and that Defendant 2 would have paid the money in lieu of Nonindicted 3’s embezzlement for that purpose.

However, according to the records, even though the defendant denied the crime that he did not commit an indecent act against Non-Indicted 3 or asked Non-Indicted 3 to the court of the court below from the prosecution to the court of the court below, the court below convicted Non-Indicted 3 of the above charges by adopting Non-Indicted 3's statement as reliable evidence. The judgment of the court below is difficult to accept for the following reasons.

In other words, according to Non-Indicted 3's statement, it is difficult to find out that Non-Indicted 2's statement made by Non-Indicted 3 and Non-Indicted 3's non-Indicted 2's non-Indicted 3's statement to the effect that the above non-Indicted 3's statement was made to prevent him from ordering 1-2 cases of early October 199, and that he tried to commit an indecent act with himself after singing, and that he would be entitled to order the military construction thereafter, and he could not use the money of 16 million won of the church that he would have been entrusted with his ruling, and it is difficult to find that Non-Indicted 2's statement to the effect that Non-Indicted 3 and Non-Indicted 3's statement was made only 00 won of the above non-Indicted 3's statement to the effect that he could not receive the order for construction later, but it is difficult to use the money for Non-Indicted 2's non-Indicted 3's non-Indicted 3's statement to the effect that he would have committed an indecent act.

Therefore, the court below's finding of guilty of this part of the facts charged is erroneous in misunderstanding facts against the rules of evidence and thereby affecting the conclusion of the judgment. Therefore, the appeal pointing this out is with merit.

D. As to the acceptance of bribe with respect to self-determination received from Defendant 2

According to the reasoning of the judgment below, the court below recognized that Defendant 1 and Defendant 2’s price of each of the self-revisions delivered by Defendant 2 around the end of March 1998 is equivalent to KRW 1.5 million, KRW 2.5 million, KRW 2.5 million, KRW 3,045,00, and KRW 3,000, KRW 200, KRW 305,000, respectively, and determined that even if considering that the value of each of the self-revisions delivered by Defendant 1 and Defendant 2 was a death, it is difficult to view it as a bribe related to his duties, even if it was received due to personal pro rata relations, and it is difficult to view that the value was a bribe related to his duties. In addition, with respect to five self-revisions issued by the end of March 199, the court below, based on which the value was recognized, the value of the 5th of the 300,000,000 won of the 300,000 won of the 300.

However, according to the records, the Korea Bail Association evaluated that the price of the self-determination of 10,00 won or 10,000 won per 198,00 won or more per 10,000 won by the end of the end of the 1998, the above self-determination of 1,50,000 won or more per 10,000 won as an ornamental use, and the future appraiser evaluated that the ordinary wholesale price of self-determination of 1,00 won or more per 3,000 won and the retail price of 10,000 won or more per 10,000 won by 10,000 or more per 10,000 won by 10,000 won by 10,000 won by 10,000 won by 10,000 won by 10,000 won by 10,000 won by 10,000 won by 10.

However, not only the appraisal of the Korea Bail Association on Bail, but also the appraisal of Lee Jong-chul, which is the data that the court below adopted on the value of the above Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Ma, was not sold to the actual level, but also there is no value that can be processed with the Mad Mad Mad Mad Mad Mad Mad Mad ma as Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad

Nevertheless, the court below did not examine whether the price data adopted by the court below, which served as the basis for determining whether it can be recognized as a bribe beyond the scope of the gift offered as a formal gift in a relative relationship, depending on the price, adopted it as evidence without examining whether it has secured objective and credibility, and then recognized the price as a bribe for the whole, and there is an error of law in violation of the rules of evidence or failing to exhaust all necessary deliberations, and such an error of law may affect the judgment of bribe depending on the result of future deliberation. Therefore, the appeal pointing this out has merit.

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

A. As to the recognition of the value of the household of this kind of interest

According to the reasoning of the judgment below, the court below found Defendant 1 as guilty only to the extent that Defendant 1 received or provided a bribe of at least 2 million won in the market price of the household of 12,000,000,000,000,000,000,000,000 won of the household of 12,000,000,000,000,000,000,000 won of the household of 12,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000 won.

In light of the records, the court below is justified in finding that there is no evidence that there is no reasonable doubt as to the fact that the market price of the household of this Riri-ri-ri-ri-ri-ri-ri-ri-ri-si is 12 million won or more, and it is not erroneous in the misapprehension of the rules of evidence as otherwise alleged in the ground of appeal. The appeal on this point is without merit.

B. As to the receipt of the U.S. dollars at the end of September 1998 and the end of October of the same year, and the receipt of the U.S. dollars at the end of March 200 and at the end of May 200

According to the reasoning of the judgment below, the court below determined as follows: the facts charged that Defendant 1 received money equivalent to KRW 34.5 million from Defendant 2 as a bribe on September 1998; the amount equivalent to KRW 25 million at the market price of KRW 10,000; the amount equivalent to KRW 20,000 in KRW 22,00 in KRW 20,000 among March 200; the amount equivalent to KRW 33,50,000 in KRW 34.5 million in KRW; and the facts charged that Defendant 2 received money from Defendant 2 as a bribe on September 1, 1998; and that Defendant 2 offered bribe on October 1, 1998, the amount equivalent to KRW 25 million at the market price of KRW 20,000 in KRW 20,000,000 in KRW 34.5,5,000 in KRW 34.5,5,000 in the above facts charged; the evidence was not consistent with each of the above Kim 2's testimony or its credibility.

In light of the records, the court below's decision that each of the above charges of bribery against Defendant 1 and each of the above charges of bribery against Defendant 2 constituted a case where there is no proof, is just, and there is no error of misconception of facts in violation of the rules of evidence as otherwise alleged in the ground of appeal. The appeal on this point is without merit.

3. Furthermore, we examine Defendant 2 ex officio.

According to the judgment of the court below and the records, the court below found Defendant 2 guilty only on part of the facts charged of offering a bribe which is a single comprehensive crime, and found Defendant 2 not guilty on the remainder of the facts charged. The prosecutor appealed against the judgment of the court below and did not appeal Defendant 2. However, as seen earlier, there is a ground to reverse part of the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which the court below found Defendant 1 guilty on the part of the facts charged in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the reason for reversal is common to Defendant 2. Thus

4. Therefore, among the judgment below, the part on the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 and the part on Defendant 2 should be reversed, and among the judgment below, the part on the crime of acceptance of bribe against Defendant 1 in relation to each of the concurrent crimes under the former part of Article 37 of the Criminal Act with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes. Therefore, this part of the judgment below against

Justices Park Jae- Jae (Presiding Justice)