[1] The elements for the court to acknowledge facts constituting a crime different from those stated in the indictment ex officio without changing the indictment

[2] In the absence of any amendment to a bill of amendment that the defendant was prosecuted for having received money in relation to his duties as an executive officer of a government-managed enterprise deemed as a public official under Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether the defendant was given money in relation to his duties when he was in the position of an executive officer or employee of an enterprise deemed as a public official under Articles 13-3 and 12-2 of the Korea Highway Corporation Act (negative)

[1] In order to recognize facts constituting a crime different from the facts charged as stated in the indictment ex officio without changing the indictment, the court shall only be within the extent that the identity of the facts charged is recognized, and shall not be likely to cause substantial disadvantage to the defendant's exercise of his/her right to defense.

[2] The facts charged that the defendant is in the position of the head of the construction office of the Korea Highway Corporation, who is an executive officer of the government-managed enterprise deemed a public official under Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and received money in relation to his duties. The defendant is not an executive officer of the government-managed enterprise deemed a public official under Article 4 of the same Act, but an executive officer and employee of the enterprise deemed a public official under Articles 13-3 and 12-2 of the Korea Highway Corporation Act, and it cannot be deemed that the facts charged that the defendant received money in relation to his duties when he is in the position of the head of the construction office of the Korea Highway Corporation, which is deemed a public official under Article 4 of the same Act. Thus, even if the defendant's receipt of money and valuables falls under Articles 13-3 and 12-2 of the Korea Highway Corporation Act and Article 129 (1) of the Criminal Act, it cannot be judged positively as to the latter's violation of the law.

[1] Articles 254 and 298 of the Criminal Procedure Act / [2] Article 4 of the Act on Aggravated Punishment, etc. of Specific Crimes, Article 129 (1) of the Criminal Act, Articles 12-2 and 13-3 of the Korea Highway Corporation, Article 298 of the Criminal Procedure

[1] Supreme Court Decision 90Do1229 delivered on October 26, 1990 (Gong1990, 2475) Supreme Court Decision 96Do755 delivered on May 10, 1996 (Gong1996Ha, 1952) Supreme Court Decision 98Do667 delivered on April 9, 199 (Gong199Sang, 927), Supreme Court Decision 98Do4558 delivered on July 28, 200 (Gong200Ha, 1958) / [2] Supreme Court Decision 84Do1139 delivered on August 14, 198 (Gong1984, 1568)

Defendant

Prosecutor

Incheon District Court Decision 2000No781 delivered on November 1, 2000

The appeal is dismissed.

We examine the grounds of appeal.

1. Summary of the facts charged in this case which the court below acquitted

From January 1997 to July 1998, the Defendant is regarded as a public official pursuant to the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Aggravated Punishment Act"), which has been performing duties of supervising construction companies during the period of service, such as construction work, design change, approval of completion inspection, etc., while the Defendant was in office as the president of the construction business office of the Korea Highway, and received a bribe from Nonindicted 1, 2, 3, and 4, the Director of the On-Site of the 1998 Special Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Aggravated Punishment Act"), and received from Nonindicted 1, 2, and the Director of the On-Site of the 3, and Nonindicted 4, the Director of the On-Site of the Korea Highway Construction Business, in relation

2. Summary of the judgment of the court below

According to the evidence of the court below, the defendant retired from the office of the Director of the Construction Project of the Korea Expressway and worked as a regular manager of the Korea Expressway Corporation on July 6, 1998, and the above amount of two million won can be recognized as the fact that the defendant works as a regular manager of the Korea Expressway Corporation. Meanwhile, pursuant to Article 4 of the Act on Special Cases concerning the Aggravated Punishment and Article 2 of the Enforcement Decree of the same Act, the executive officer of the Korea Expressway Corporation is considered as a public official in applying the crime of acceptance of bribe, but it does not apply to the executive officer of the Korea Expressway Corporation. Accordingly, this part of the charge

3. Prosecutor's ground of appeal

Article 12-2 of the Korea Highway Corporation Act provides that “A part of the affairs of the Corporation may be entrusted to a person who has invested or contributed to the Corporation with the approval of the Minister of Construction and Transportation, and Article 13-3 provides that “a person engaged in the affairs entrusted under the provisions of Article 12-2 shall be regarded as a public official in applying the provisions of Articles 129 through 132 of the Criminal Act to the person engaged in the affairs entrusted under the provisions of Articles 129 through 132.” The ground for establishment of the Korea Highway Corporation is Article 12-2 of the Korea Highway Corporation Act and the Korea Highway Corporation has majority of shares in the Korea Highway Corporation, and it is obvious that the duties

4. Determination

Article 12-2 (1) of the Korea Highway Corporation Act provides that "the Corporation may entrust part of its business under each subparagraph of Article 12 (1) to a person who has invested or contributed to the Corporation with the approval of the Minister of Construction and Transportation." Article 13-3 of the Framework Act on the Management of Government-Invested Institutions in addition to officers and employees falling under Article 18 of the Framework Act on the Management of Government-Invested Institutions, the Corporation shall be deemed as public officials in the application of Articles 129 through 132 of the Criminal Act."

However, in order to recognize facts constituting an offense different from the facts charged as stated in the indictment ex officio without changing the indictment, the court must be within the extent consistent with the facts charged, and there is no concern about actual disadvantage in exercising the defendant's right to defense (see, e.g., Supreme Court Decisions 90Do1229, Oct. 26, 190; 96Do755, May 10, 1996; 98Do667, Apr. 9, 199). The above facts charged are in the position of the president of the construction office of the government-managed enterprise, who is an executive officer of the government-managed enterprise, which is a public official under Article 4 of the Aggravated Act, and receive money in relation to his duties. The defendant is not a executive officer of the government-managed enterprise, who is deemed as a public official under Article 4 of the Aggravated Act, and even if the defendant is deemed to have been issued with regard to his duties and duties under Article 13-3 and Article 12-2 of the Korea Highway Corporation Act.

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

Justices Song Jin-hun (Presiding Justice)