[1] The meaning of the profit which is the content of the bribe in the crime of bribery

[2] The standard for determining whether the amount received by a public official constitutes a bribe as an unfair profit with a quid pro quo relationship

[3] Whether the object interest of a bribe exists at the time of promise or its value should be determined in the crime of promising a bribe (negative)

[4] The case reversing the judgment of the court below on the ground that it is reasonable to view that the defendant disposed of the land which was not disposed for for a long time, and that he obtained intangible profits which would increase in price if it was developed in the future due to the electric source housing site where he wanted to purchase it, although the court below found the defendant not guilty on the ground that there was a difference in market price between the exchanged land and the exchanged land, even if the market price of Gap's land is lower than the market price of Eul's land

[1] Benefits that are the contents of a bribe include not only money, goods, and other property interests, but all tangible and intangible benefits that are sufficient to satisfy human needs.

[2] Whether the amount received by a public official constitutes a bribe as an unfair benefit with a quid pro quo relationship shall be determined by considering all the circumstances such as the contents of the public official’s duties, the relationship between a job provider and a benefit provider, whether there exists a special relationship of relationship between both parties, the degree of interest, the circumstances and timing of receiving benefits, etc. In light of the fact that the crime of bribery is the legal interest protected by the law of fair performance of duties and the trust in society, whether the receipt of money by a public official is suspected of the fairness of execution of duties from the general public is also a single standard

[3] In the crime of promising a bribe, a profit which is the object of a bribe does not need to be existing at the time of the promise, and it is nothing more than possible at the time of promise, and it does not affect the establishment of the crime of promising a bribe even if its value is not determined where the object of a bribe is a profit.

[4] The case reversing the judgment of the court below on the ground that it is reasonable to view that the Defendant disposed of the land which was not disposed for for a long period of time, and that the Defendant obtained intangible profits which would increase in price if it was developed in the future due to the electric source housing site where he wanted to purchase it, although the court below acquitted the Defendant on the ground that there was no difference in market price between the exchanged land and the exchanged land, even if the market price of Gap's land is lower than that of Eul's land

[1] Article 129 of the Criminal Act / [2] Article 129 of the Criminal Act / [3] Article 129 of the Criminal Act / [4] Article 129 of the Criminal Act

[1] Supreme Court Decision 78Do1793 delivered on October 10, 1979 (Gong1979, 12283), Supreme Court Decision 94Do993 delivered on June 30, 1995 (Gong1995Ha, 2678), Supreme Court Decision 95Do1269 delivered on September 5, 1995 (Gong1995Ha, 3458), Supreme Court Decision 2000Do4714 delivered on January 5, 2001 (Gong2001Sang, 477) / [2] Supreme Court en banc Decision 97Do3113 delivered on March 10, 198 (Gong198, 1102), Supreme Court Decision 200Do30989 delivered on June 30, 209 (Gong1998, 199)

Defendant

Defendant and Prosecutor

Attorney Lee Sang-hoon et al.

Seoul High Court Decision 2000No54 delivered on October 17, 2000

Of the judgment of the court below, the acquittal portion on the guilty portion and the bribery related to land exchange shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The prosecutor's remainder of appeal

1. Judgment on the Defendant’s grounds of appeal

The lower court found the Defendant guilty on the violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name among the instant facts charged against the Defendant, on the ground that it was recognized that the Defendant completed the registration of the establishment of a neighboring mortgage by conducting title trust on the instant reinforced land to Nonindicted Party

In light of the records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misunderstanding of legal principles, misunderstanding of facts, and misunderstanding of evidence without admissibility as evidence.

2. Judgment on the grounds of appeal by the prosecutor

A. As to the acceptance of bribery related to land exchange

The lower court determined that there was a difference between the market price of the above 90,000 won and the above 90,000 won and the above 150,000 won were co-ownership shares and that there was no purchaser at the ordinary level 150,000 won since 19,000 won and 9,000 won were no more than 30,000 won and 9,000 won for each of the above 9,000 won and 9,000 won, and that there was no more than 9,000 won for each of the above 9,000 won and 9,000 won for each of the above 9,000 won and 9,000 won for each of the above 9,000 won and 9,000 won for each of the above 9,000 won and 9,000 won for each of the above 9,000 won and 9,000 won for each of the above 9,05,0.

However, profits which are the contents of a bribe include not only money, goods, and other property interests, but also all tangible and intangible profits sufficient to meet human needs (see, e.g., Supreme Court Decisions 95Do1269, Sept. 5, 1995; 2000Do4714, Jan. 5, 2001). Whether the amount received by a public official constitutes an unjust profit with a quid pro quo relationship, shall be determined by taking into account all the circumstances, such as the contents of the public official’s duties, relationship with a provider of benefits, whether there exists a special relationship between the public official and the provider of benefits, and whether there exists a special relationship between the two parties, and the process and timing of giving and receiving benefits. In light of the fact that the crime of bribery is protected under the benefit and protection of the law, whether the crime of bribery receives money from a public official and thus becomes one of the criteria for determining whether it becomes doubtful of fairness in performing his duties from the society (see, e.g., Supreme Court Decision 90Do1815, Oct. 24, 20000).

According to the records, the defendant tried to dispose of the safe land of this case for several years or to dispose of it, but did not dispose of it because there was no person who wants to purchase it, while considering the situation after discharge from military service, he was aware of the house site in the Seoul metropolitan area. However, the non-indicted 2, who was the defendant's wife, did not 183 square meters of the defendant's safe land and 4,000 square meters of his reinforced land, recommended the defendant to exchange the defendant's 183 square meters of 183 square meters of the defendant's safe land and 4,000 square meters of the defendant's strengthening land, and the non-indicted 2 reported the defendant of the exchange agenda with the non-indicted 3's intention to promote it to large scale, and the defendant did not purchase the land of this case if the reinforced land was constructed in the future and developed in Seoul, it would be reasonable to view that the market price of this case would have become more than the market price of this case's land.

Nevertheless, the court below's finding the defendant not guilty of this part of the facts charged merely for the above reasons shall not be deemed to have committed an unlawful act of misunderstanding the legal principles as to the interest in the crime of bribery, which is the content of the bribe, and it shall not be deemed to have committed an unlawful act of failing to exhaust all necessary deliberations

B. As to the receipt of cash acceptance

The lower court acquitted the Defendant on the ground that Nonindicted 2’s statement consistent with this part of the facts charged that the Defendant received a bribe of KRW 11 million in total on three occasions from Nonindicted 2 was not reliable and there is no other evidence to acknowledge it.

In light of the records, the above fact-finding by the court below is just, and there is no violation of the rules of evidence against the allegations in the grounds of appeal.

3. Therefore, the part of the judgment of the court below as to the acceptance of bribery related to land exchange among the non-guilty part of the judgment of the court below shall be reversed, and since the judgment of the court below should be sentenced to one punishment for concurrent crimes under the former part of Article 37 of the Criminal Act, this part of the judgment of the court below shall not be reversed. Thus, the part of the judgment of the court below as to the acceptance of bribery related to land exchange among the guilty part and the non-guilty part shall be reversed, and the case shall be remanded to the court below for a new trial and determination, and the remainder of the appeal by the prosecutor shall

Justices Park Jae-sik (Presiding Justice)