[1] In a case where a public official performs his/her duties as a member of the Local Construction Technology Deliberation Committee under Article 5(1) of the former Construction Technology Management Act, whether the crime of bribery is established when he/she gives or receives unfair money or valuables in relation to the duties of a member of the Local Construction Technology Deliberation Committee even if such duties do not fall under the scope

[2] The meaning of "duty" in the crime of bribery, and whether a person who was a public official may be punished as a crime of bribery under Article 129(1) of the Criminal Act in cases where he/she already left the position of a public official at the time of accepting a bribe after receiving a solicitation while in office (negative)

[3] Whether a public official may be punished as a general bribery in cases where he/she performs other duties through a separate commission procedure, etc. for affairs not related to his/her own duties and receives money or valuables for duties previously entrusted after the commission is completed (negative)

[1] Article 45 Subparag. 1 of the former Construction Technology Management Act (amended by Act No. 11180, Jan. 17, 2012) provides that when applying the crime of bribery to Articles 129 through 132 of the Criminal Act, members of the Local Construction Technology Deliberation Committee established under Article 5(1) of the same Act (hereinafter “Technology Deliberation Committee”) who are not public officials shall be deemed public officials. This is intended to punish a public official for the crime of bribery to Articles 129 through 132 of the Criminal Act in cases where a non-public official performs his/her duties as a member of the Technical Deliberation Committee in order to enhance fairness and transparency in deliberation, he/she receives unfair money and valuables in relation to his/her duties as a member of the Technical Deliberation Committee. In light of the content and purpose of the aforementioned legal fiction, in cases where a public official, such as a national public official or local public official, performs his/her duties as a member of the Technical Deliberation Committee, even if such duties do not fall under the original scope

[2] In the crime of bribery, a public official’s duty refers to any duty that a public official administers as a public official in his/her position, and even if it is a duty that was in the past or will not be practically in accordance with the duties and division of duties in the future, a public official, such as a duty that belongs to the general legal authority, takes charge of official duties according to his/her position. However, the Criminal Act provides that a person who was a public official, in his/her office, receives, demands, or promises a bribe after receiving a request for an unlawful act while in his/her office, shall be punished as an ex post facto bribery under Article 131(3). Thus, if a person who was a public official has already left the position of a public official at the time of receiving a bribe, he/she may not be punished as a

[3] In a case where a public official temporarily performs duties as an expert with respect to the duties of a local government as a member, such as when a public official temporarily performs duties upon the commission of a member, he/she shall be deemed to lose the status of a public official newly held by the member upon the termination of the commission. Thus, even if a public official receives money and valuables in relation to the duties previously entrusted thereafter, it shall not be punished as a general acceptance of bribery, regardless of whether it constitutes a crime of ex post facto bribery.

[1] Article 129 of the Criminal Act; Articles 5(1) and 45 subparag. 1 of the former Construction Technology Management Act (Amended by Act No. 11180, Jan. 17, 2012) / [2] Articles 129(1) and 131(3) of the Criminal Act / [3] Articles 129(1) and 131(3) of the Criminal Act

[1] Supreme Court Decision 2012Do15254 Decided November 14, 2013 (Gong2013Ha, 2278) / [2] Supreme Court Decision 94Do993 Decided June 30, 1995 (Gong195Ha, 2678)

Defendant 1 and three others

Defendants

Attorneys Sudo-do-Ne et al.

Busan High Court Decision 2013No95 decided July 25, 2013

The part of the lower judgment against Defendant 2, 3, and 4 is reversed, and that part of the case is remanded to the Busan High Court. Defendant 1’s appeal is dismissed.

1. Judgment on Defendant 1’s ground of appeal No. 1

The gist of this part of the grounds of appeal is that the court below found Defendant 1 guilty by finding wrong facts although Defendant 1 did not have the intention to accept the bribery, which is unlawful.

As long as the recognition of facts and the selection and evaluation of evidence, which are the premise thereof, do not go beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules, they belong to the exclusive authority of a fact-finding court. Even if examining the reasoning of the lower judgment in light of the records, it is not recognized that the lower court’s fact-finding related to

2. Determination on Defendant 1’s grounds of appeal Nos. 2 and 3

A. Article 45 Subparag. 1 of the former Construction Technology Management Act (amended by Act No. 11180, Jan. 17, 2012) provides that when applying the provisions of bribery to Articles 129 through 132 of the Criminal Act, members who are not public officials shall be deemed public officials among the members of the Local Construction Technology Deliberation Committee (hereinafter “Technology Deliberation Committee”) under Article 5(1) (hereinafter “Article 45 Subparag. 1 of the same Act”) (hereinafter “instant deemed provision”). In order to enhance the fairness and transparency of deliberation, where a non-public official performs his/her duties as a member of the Technical Deliberation Committee, he/she shall be deemed a public official and shall be punished for the crime of bribery to Articles 129 through 132 of the Criminal Act if he/she receives unjust money and valuables in connection with his/her duties.

In light of the contents and purpose of the legislative provision of this case, even if a public official, such as a state public official or a local public official, performs his duties as a member of the Technical Deliberation Committee, if he receives unfair money and valuables in relation to his duties as a member of the Technical Deliberation Committee, it shall be deemed that the crime of bribery is established.

B. According to the reasoning of the lower judgment and the evidence duly admitted, the instant construction project was conducted by entrusting or entrusting the bid to the Administrator of the Public Procurement Service while promoting the instant construction project in a package deal deal project; Defendant 1 was selected by the ○○ Metropolitan City Construction Technology Deliberation Committee (hereinafter “○○ Committee”) as a member of the ○○ City Construction Technology Deliberation Committee while serving as the Director of the △△△△△ Team, a local public enterprise, and was performing duties such as deliberation and evaluation of the design of the instant construction project, and was receiving cash from Defendant 3 and 4, who is the employee of the participating company, in relation to his duties.

Therefore, the construction work of this case is promoted by ○ Metropolitan City, and deliberation on the design thereof is deemed to have been conducted by ○○ Committee pursuant to Article 7(2) of the Act on Contracts to Which a Local Government Is a Party. Although there are parts stated in the tender description of this case as if the Act on Contracts to Which the State Is a Party applies, this is nothing more than a clerical error, and thus, it is justifiable for ○○ City Mayor to appoint the above defendant as an evaluation committee member. Therefore, in light of the legislative provision of this case and the legal principles as seen earlier, the crime of bribery is established as long as the above defendant received money in relation thereto while performing his duties as a member of ○○ Committee.

The argument in the grounds of appeal is without merit, since it is unlawful to appoint ○○ Committee as a public official of the above defendant under the premise that the construction of this case is within the jurisdiction of the Republic of Korea, and the above defendant does not constitute a public official who is the subject of bribery.

3. Determination on the grounds of appeal by Defendants 2, 3, and 4

A. Of the facts charged in the instant case against Defendant 2 and the facts charged in the instant case against Defendant 3 and Defendant 4, the summary of the offering of bribe to Defendant 2 is as follows. In other words, “○○ Metropolitan City has carried out the construction work of installing sewage slurbing land to recycle from the sewage treatment site.” Defendant 2 was selected as a construction technology deliberation committee for deliberation and evaluation of the said construction work among the officers employed by the head of the post office affiliated with the Ministry of Knowledge Economy, and was submitted on May 19, 2010 at each consortium participating in the tender, the public offering was made to Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), and the said public offering was made to Nonindicted Co. 20 in May 10, 201, and the said public offering was made to Nonindicted Co. 20 and the said public offering was made to Nonindicted Co. 10, 200 won to KRW 30,000,000 to Defendant 1’s general manager for the above construction work.

B. As to this, the lower court: (a) on the grounds that the crime of bribery is protected by the legal interest of the process of performing the duties and the misappropriation of duties; (b) therefore, the bribe does not involve whether or not there was a compulsory violation, whether or not there was a solicitation, and at any time when it was given or received; and (c) even if duties were not practically performed according to the duties and division of duties in the past or in the future (see, e.g., Supreme Court Decision 93Do2962, Mar. 22, 1994). According to the legal fiction of this case, according to the Construction Technology Deliberation Committee, a public official among the construction technology deliberation committee members did not change the status of a public official as a member of the Construction Technology Deliberation Committee, and thus, Articles 129 through 132 of the Criminal Act apply to criminal punishment for the number of bribes; (b) determined that the public official who was commissioned by the head of the ▽▽▽, was not given or received KRW 30 million from the public official of the ○○○ Committee.

C. However, we cannot accept the above decision of the court below for the following reasons.

(1) In the crime of bribery, a public official’s duties refers to all duties performed by him as a public official in his position, and even if duties were not practically performed by him in the past or in the future according to duties and division of duties (see Supreme Court Decision 94Do993, Jun. 30, 1995). However, the Criminal Act provides that where a former public official received, demanded, or promised a bribe after he received, demanded, or promised an unlawful act in his position while in his office, a bribe shall be punished as an ex post facto bribery under Article 131(3). Thus, if a public official has already left the status of a public official at the time of receiving, etc. a bribe cannot be punished as an ex post facto bribery, and it can only be punished as an offense if it falls under the requirements for ex post facto bribery.

On the other hand, in case where a public official temporarily performs other duties as a specialist with respect to the affairs of a local government as commissioned by a member, such as when he temporarily performs his duties, he shall be deemed to lose the status of a public official newly held as such upon the termination of the commission. Thus, even if a public official received money in relation to the affairs previously entrusted after the commission, it shall not be punished as a general bribery crime, regardless of the fact that it may constitute a crime of ex post facto bribery.

(2) The following facts are revealed according to the evidence admitted by the lower court. In other words, Defendant 2 was registered as a candidate for the deliberation and evaluation of the instant construction work design as a member of the ○○○ Committee, which was employed by the head of the △△○ Committee, and was commissioned on May 17, 2010 through the lottery procedure, and thereafter, Defendant 2 continued to perform the design deliberation and evaluation work for the determination of successful bidder of the instant construction work as a member of the ○○ Committee from May 18, 2010 to the next day, and continued to serve as the head of the ○○○ Committee. Meanwhile, on May 19, 2010, the chairman of the ○○ Committee finished the design deliberation and evaluation meeting of the ○○ Committee, and notified tender participants of the shipment in writing within three days if they raise an objection, and Defendant 2 received KRW 30,000 from Defendant 30 on May 24, 2010.

(3) Examining the foregoing facts in light of the legal principles as seen earlier, it is reasonable to deem that Defendant 2 was out of the position of public official as a member of ○○ Committee upon the lapse of May 19, 2010 or May 24, 2010, when filing an objection at the latest, Defendant 2 received money and valuables from Defendant 3 and 4 as a case for the performance of duties as a member of ○○ Committee. Thus, even if Defendant 2 received money and valuables from Defendant 2 as a case for the performance of duties as a member of ○○ Committee, it can be a matter whether the former public official received a bribe after the fact-finding, and it cannot be deemed that Defendant 2 received a bribe in relation to his duties as a public official.

D. Nevertheless, the lower court determined that Defendant 2 received money and valuables from Defendant 3 and 4 in connection with his duties solely on the ground that Defendant 2 was commissioned as a member of the ▽▽△○○ Committee and lost his status as a member of the said committee, but he continued to serve as a member of the said committee. In so doing, the lower court erred by misapprehending the legal doctrine on bribery under Article 129(1) of the Criminal Act by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

4. Conclusion

As seen above, the part concerning the offering of a bribe to Defendant 2 among the part concerning Defendant 3 and Defendant 4 in the lower judgment cannot be maintained, and the lower court rendered a single sentence on the ground that the remaining conviction was concurrent with that of Defendant 3 and Defendant 4, and thus, the part regarding Defendant 4 in the lower judgment is reversed in its entirety.

Therefore, the part concerning Defendant 2, 3, and 4 among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)