Do 2014 631 A. Violation of the Act on the Punishment, etc. of Specific Crimes (Bribery)

(b) Fraud;

(c) Occupational breach of trust;

(d) Acceptance of a third party bribe;

(e) Acceptance of bribe;

1. (a) b. (c) d. A;

2. b. (c) d. B

Defendant A and Prosecutor (Objection against Defendant A)

Attorney C (Korean National Assembly for Defendant A)

Corporation D (for Defendant B)

Attorney E, F, G, H

Daejeon High Court Decision 2013Do223 decided December 18, 2013

August 29, 2016

The judgment of the court of first instance shall be reversed, and the case Eul shall be remanded to the Daejeon High Court.

The grounds of appeal are determined.

1. Examining the reasoning of Defendant A’s appeal based on evidence duly adopted by the lower court’s reasoning, it is reasonable to determine Defendant A as guilty of fraud among the facts charged in the instant case against Defendant A on the grounds as stated in the judgment of the lower court on the grounds as stated in the judgment of the lower court, and there is no illegality such as going beyond the bounds of the principle of free evaluation of evidence by violating the legal principles of logic and experience, or by misapprehending the legal principles on calculating the amount of damage in fraud, as alleged in the grounds of appeal.

In addition, according to Article 383 subparagraph 4 of the Criminal Procedure Act, only in the case of death penalty, imprisonment with prison labor for life or for not less than 10 years, or imprisonment without prison labor, a final appeal for the reason of unfair sentencing is allowed. Thus, the argument that Defendant A was unfair in the amount of punishment in the instant case sentenced to a more minor sentence against Defendant A cannot be a legitimate ground for final appeal.

2. As to the grounds of appeal by a public prosecutor

A. From the point of violation of the Act on the Acceptance of 3-party Bribery, Receipt of Bribery and Punishment of Specific Crimes (Bribery) a bribe crime is a public official’s legal interest in the process of performing his/her duties and the purchase of social confidence and duties therein, and is not a need for any solicitation or unlawful act. It does not require a special solicitation to recognize the bribe of money and valuables received. Moreover, it is sufficient to accept such money and valuables as received, and there is no need to have a separate relation with each other with the performance of duties (see, e.g., Supreme Court Decision 201Do3579, Oct. 12, 2001). Whether a public official’s legal interest in this case constitutes a bribe, such as the establishment of a public official’s legal interest in the process of performing his/her duties, and whether a public official’s interest in the process of performing his/her duties, and whether a public official’s private interest in this case should be considered as a public official’s interest in the process of executing such duties, and whether the public official’s interest in this case constitutes a bribe.

According to the reasoning of the judgment of the court below, the defendant, who is a research institute for the J research task under the supervision of the Institute (hereinafter referred to as the "Research Institute of this case"), was recruited by the court below, and the defendant, who is a participating company, received an illegal solicitation from the K K (hereinafter referred to as "K"), and the research warden M, and made N and K to receive a bribe of KRW 29,200,000, and paid the amount of KRW 13,061,00 upon receipt of the K's corporate card to pay for the use of KRW 11,60,50,000. The defendant Gap credit provided a bribe of KRW 7,936,000 on behalf of the public official, and provided a bribe of KRW 3,00,00 to the public official, and provided a bribe of KRW 11,660,50 on behalf of the public official.

As to the facts charged in this part of the indictment, in light of the circumstances in its holding, K provided illegal convenience and cooperation with regard to the Defendant’s exclusive use of budget for research funds. On the ground that there was lack of proof as to the relationship between the duty of the money and goods transaction in this case and the perception of the Defendant’s intent to receive bribe or the relation to the duty to receive bribe to the Defendant.

However, the above judgment of the court below is hard to accept in light of the above legal principles.

According to the evidence duly adopted by the court below, (1) K has no record of supply since it conducted the research service of the Institute of this case once around December 2007; (2) around May 2009, Defendant B participated in the J research task; (3) the Institute of this case was provided with the research cost of KRW 40 million every year; (4) the Defendant related to the number of the goods ordered by the Defendant to be provided with the research cost of KRW 70 million from December 2009 to May 201; (4) the supply of approximately KRW 200 million and the supply of goods to the K Research Institute of approximately 0 billion per annum 10 to May 201; (3) the Defendant was required to provide the aforementioned research cost of KRW 10 to the K Research Institute during the period of implementation of the above research task to KRW 20,000,000 for KRW 10 to the K Research Institute; and (4) the supply of the materials cost of this case to the K during the period of implementation of the research project.

29. On January 28, 201, the Plaintiff continued to demand cash in the name of the school expenses and golf loans purchase, etc. on or around January 201, and the Plaintiff would make up for it through the processing supply on or around the face of the payment year. ④ From July 2009 to April 5, 2010, K would provide support for personnel expenses and receive compensation after processing KRW 14,704,360 on or around April 5, 2010. As for the amount paid to Defendant by the last settlement date on or around June 28, 2012, it can be seen that the amount was covered by some ex post facto amounts through processing or actual supply, but did not recover the full amount.

M is a practice that takes place by dividing the amount allocated to the Institute, which is an institution in charge of the research task, compared to this business volume. However, it is not possible for the Institute to pay for processed goods after using a corporate card. L is difficult to readily refuse the demand of the Defendant, who is the task manager, in the position of receiving research funds by participating in the research task and receiving research funds. Although it is difficult for the Defendants to refuse the request of the Institute to pay corporate cards or credit payments on several occasions, it is difficult for the Institute to take advantage of the fact that there was no need to pay the amount of money distributed to the Institute. However, in light of the fact that there was no need for the Institute to pay the amount of money and other valuables for the purpose of this case, the Defendants, including Defendant A, who would be able to receive money and other valuables from the corporation, and Defendant A, who would be able to receive money and other valuables from the corporation, and Defendant A, who would be able to receive money and other valuables from the corporation.

It is reasonable to see that Defendant agreed to compensate for economic losses incurred by K at the time of the instant money transaction, and it does not change on the ground that Defendant agreed to compensate for economic losses after the said transaction.

Nevertheless, the judgment of not guilty of this part of the facts charged for the same reasons as the judgment of the court below is erroneous in the misapprehension of the legal principles as to job relevance and consideration in the third party's acceptance of bribe and the crime of acceptance of bribery, and the criminal's intent, and the ground of appeal pointing this out is with merit.

B. Examining the reasoning of the original judgment in light of the record as to the point of occupational breach of trust, it is reasonable to determine that the part of the PCR (C-25) price of KRW 5 million cannot be deemed as the research institute’s damages on the ground that the public prosecution of this case is related to the point of occupational breach of trust among the facts of this case, and that the court rendered a judgment of innocence on the ground that it cannot be deemed as the damage of the research institute of this case, and there is no error of misapprehending the legal principles on the calculation of the amount of damage in occupational breach of trust, such as the assertion of the grounds for appeal.

3. Of the judgment of the court of final judgment, the fact that the third party bribe against the defendant Eul, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) against the defendant Eul, and the fact that the defendant Eul received a bribe against the defendant Eul should be reversed. The above part of the judgment of final judgment and the remaining guilty part against the defendant Eul should be sentenced to one punishment for the whole in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, the whole judgment of the original judgment shall be reversed, and the case shall be remanded to the court of original judgment for a new trial and determination, and it is so decided as per Disposition with the assent of all participating Justices.

Justices Lee In-bok

Justices Kim Yong-deok

Justices Kim So-young

Justices Lee Ki-taik