(영문) 서울고등법원 2012.10.19.선고 2012노1917 판결

Considering the establishment history, institutional purport, specific functions, and absence of the legal fiction of public officials, etc. of the residents support council of this case, the residents support council cannot be deemed an organization performing public duties, and is merely a non-governmental organization to protect private interests. While the defendant is a member of the two cities council, the subject of bribery cannot be recognized for the defendant who is in the position of a member of the Qgu residents support council, not a council member of both cities, but is not a council member of both cities. As a part of the resident support council, insofar as the subsidy was paid to the residents support council as a part of the resident support project, the execution and use of the subsidy is merely a

2) misunderstanding of facts

Of the amount that the Defendant received from B, KRW 30 million in cash is an introduction fee that has been received through practice in connection with the intermediation of the factory trade of this case. The cash card of KRW 20 million is merely merely a loan, and there is no relation with the Defendant’s duties as a member of the Resident Support Council and is not in a quid pro quo relationship.

(b) Prosecutors;

The sentence of the court below (the imprisonment of three years and six months, the fine of 50,000,000 won, and the surcharge of 50,000,000 won) is too uneased and unreasonable.

2. Determination

A. Judgment on the defendant's assertion

1) Judgment on the misapprehension of legal principles

The term "public official" under Articles 129 through 132 of the Criminal Act refers to a public official under the State Public Officials Act and the Local Public Officials Act, and a person engaged in the affairs of the State or local governments and public corporations equivalent thereto under other Acts and subordinate statutes other than those deemed public officials in applying the above provisions, whose contents of labor are not limited to simple mechanical or physical things (see, e.g., Supreme Court Decision 2010Do14394, Mar. 10, 201). In addition, the duties mentioned in the crime of bribery include not only the duties under the jurisdiction of a public official, but also the acts closely related to his/her duties or the acts of actual involvement in such duties. However, whether a specific act falls under the duties of a public official shall be determined in consideration of the practical aspects that it can be reasonably deemed necessary in relation to the duties that the public official performed together with the formal aspects that it was performed as part of the public official (see, e.g., Supreme Court Decision 201Do670, May 31, 2002).

In principle, the duties of the local council members who are public officials under the Local Autonomy Act shall be governed by the Local Autonomy Act, and the Local Autonomy Act specifically provides for the matters to be resolved by the local council (see Article 39 of the Local Autonomy Act) but with respect to the duties or obligations of the local council members, the duties of the local council members shall be faithfully performed according to their conscience, with priority over public interests (Article 36 (1) of the Local Autonomy Act). In addition, the duties of the local council members have not been specified specifically in other Acts than the Local Autonomy Act, and the purpose, purpose, and purpose of the relevant Acts are not to separately regulate the duties of the local council members according to their characteristics in consideration of the characteristics of the residents of the local council members, public nature, integrity, etc.

However, the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (hereinafter “Waste Promotion Act”) is enacted to facilitate the installation of waste disposal facilities and enhance the welfare of residents in the surrounding areas by facilitating the installation of waste disposal facilities and promoting the welfare of residents in the surrounding areas through the promotion of securing of sites for waste disposal facilities (see Article 1 of the Act), and the Minister of Environment or the head of a local government, etc. who intends to install and operate waste disposal facilities (see Article 2 of the Act). The agency installing waste disposal facilities shall determine and publicly notify the surrounding areas that may be affected environmentally due to the installation and operation of waste disposal facilities within the period prescribed by the Presidential Decree from the date the plan for installation of waste disposal facilities has been publicly announced. The agency shall have a specialized research institute selected pursuant to Article 17-2 of the Waste Promotion Act investigate the environmental impact and gather the results thereof (see Article 17 of the Act); the residents support council shall be composed of special autonomy, Si/Gun/Gu council of the relevant area; the residents support council under Article 17(2) of the Act and the head of the competent Special Self-Governing Province and the residents/Gu.

As such, an agency installing waste disposal facilities shall determine and publicly announce the affected neighboring areas as necessary measures for the installation and operation of waste disposal facilities, install convenience facilities for local residents, and consult necessaryly with the residents support council in conducting resident support projects, etc. in the neighboring areas. The purpose of the Waste Promotion Act, which stipulates that the local council members are required to be appointed in the formation of the residents support council, is to preferentially perform public duties as a representative of the residents, and to ensure that the local council members with integrity duty represent the overall interests and intentions of the residents living in the affected neighboring areas, thereby preventing unfair infringement on the rights of the residents in administration.

In light of the purpose and purpose of the Local Autonomy Act and the Waste Promotion Act concerning the local council members, it is not simply stipulated the qualification of the council members, but also stipulated that the council members selected as the council members to maintain the public nature in performing their duties shall perform the duties of the council members for supporting the residents as the council members.

In addition, in full view of the evidence duly admitted and examined by the court below, the two cities determined within 300 meters from the boundary line of the site of the waste incineration facility pursuant to Article 18 of the Enforcement Decree of the Waste Promotion Act as the indirect influence right and decided to create and support the residents support fund of 6 billion won annually from July 29, 2004 to the residents support fund for 3 years from July 29, 2004. The two cities provided a subsidy of 6 billion won from the cost of the resident support facility under the Ordinance on the Management of the Subsidies for Yangju-si to the Residents Support Consultative Body on the Management of the Subsidies for Yangju-si to execute the project cost under the Waste Promotion Act, and the Qgu Resident Support Consultative Body decided to purchase the factory site at the cost of the resident support facility and lease it to the residents support facility at the expense of the resident support facility, and the resolution of the council on the cost of the resident support facility at the expense of the resident support facility under the Act on the Management of the Residents Support for the Residents Support.

Ultimately, the fact that a defendant who was a member of the Q Q Resident Support Council as a member of the City Council is engaged in the public records to perform his duties as a member of the residents Support Council, and the resolution to purchase a leased factory site as a cost of the resident support project falls under the duties in the crime of bribery because it constitutes a consultation on the resident support project. In this regard, the defendant's receipt of total amount of KRW 50 million from

Therefore, the defendant's argument in this part of the appeal is rejected.

2) Determination of misunderstanding of facts

Based on the following circumstances, the lower court determined that: (a) the Defendant’s act of purchasing and selling government 50 million won out of the total amount of KRW 90 million received from a seller of a factory site to the Defendant, upon taking into account the following circumstances: (i) the Defendant: (b) the Defendant called “B to separately cut off the money regarding the purchase of the factory site,” “I will not pay the money without the money; (c) the Defendant offered money to the seller of the factory site to the Defendant; and (b) the delivery method constitutes a bribe of the Defendant, which was carried out as part of the business of purchasing and selling government 0 million won in cash in cash 50 million won; and (b) the Defendant’s act of purchasing and selling government 20 million won in cash to the Defendant’s account in the name of the son of B and then delivered the cash card to the Defendant; and (c) the Defendant’s act of purchasing and selling government 00 million won in the name of a member of the local council under the Waste Promotion Act as part of the resident support project, and the Defendant’s act as a bribe.

In full view of the evidence duly admitted and examined by the court below, the fact-finding of the court below is just and the fact-finding of the court below is just and in addition, Eul delivered the cash card of KRW 30 million to the defendant at the investigative agency and delivered KRW 30 million to the defendant before the Myeon office, and there was a defect that "A received KRW 100 million, and ......... the statement that "A has changed the remainder of the words....." In addition, in addition to the fact that the defendant stated that the defendant's total amount of KRW 50 million delivered twice from B constitutes a bribe related to the defendant's duties, and therefore, the judgment of the court below to the same purport is justified and it is not possible to find any error of mistake as alleged by the defendant.

Therefore, the defendant's argument on this part of the appeal cannot be accepted.

B. Judgment on the Prosecutor’s ground of appeal

In light of the fact that the defendant becomes a member of the Residents Support Council pursuant to the Waste Promotion Act and received a bribe of 50 million won in total from B with respect to duties related to resident support projects for the installation of waste disposal facilities after becoming a member of the resident support council under the above Act, the amount received is a large amount of 50 million won, and the crime of bribery is not more likely to cause serious damage to the general social trust in the fairness and transparency of public duties, and the defendant actively demanded money and valuables to B. However, the act of receiving money and valuables by the defendant itself is against the nature of the act of receiving money and valuables, and there is no particular criminal record other than several times before the crime of this case, and other circumstances that are the conditions for the punishment specified in the records and arguments such as the defendant's age, character and conduct, family relations, occupation, etc., it is difficult to deem that the sentence of original deliberation is too unreasonable because it is too unreasonable.

Therefore, the prosecutor's ground of appeal cannot be accepted.

3. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.