[1] The standard for determining whether a “employee above the director or team leader” who is deemed as a public official in the application of bribery under Article 83 of the Local Public Enterprises Act and Article 80 of the Enforcement Decree of the same Act (=class)

[2] In a case where the Defendants were prosecuted for acceptance of bribe while serving as a class 4 employee of the Incheon Urban Development Corporation, the case holding that the Defendants may be the subject of the crime of acceptance of bribe under Article 129(1) of the Criminal Act as long as they served as a class 4 employee of the above corporation as a class 4 employee of the above corporation

[1] Article 83 of the Local Public Enterprises Act provides that "the officers of the Corporation, the head of the team, and the employees prescribed by the Presidential Decree shall be deemed public officials in the application of Articles 129 through 132 of the Criminal Act." Article 80 of the Enforcement Decree of the same Act provides that "the employees prescribed by the Presidential Decree" refers to the employees of the head of the team or the head of the team or the head of the group or the head of the group or the higher under the articles of incorporation of the Corporation and the head of the group or the head of the group or the head of the higher under the above Enforcement Decree refers to the employees of the division or the head of the group or the head of the group or the head of the higher under Article

[2] In a case where the Defendants were indicted on charges of accepting bribe in relation to the duties of employees of a local public enterprise deemed public officials by offering property benefits, such as entertainment, under the pretext of overseas tourism and golf entertainment, etc. during the period when they were employed as class 4 employees of the Incheon Urban Development Corporation (hereinafter “Corporation”), the case holding that the judgment below which acquitted the Defendants of the charges of bribery was erroneous in the misapprehension of legal principles, since the Defendants were appointed as class 4 employees in accordance with the personnel management regulations delegated by the articles of incorporation of the Corporation, as long as the Defendants were employed as class 4 employees of the Corporation, they constitute an executive officer under Article 80 of the Enforcement Decree of the Local Public Enterprises Act as long as they were in office as the Defendants were in office as class 4 employees of the Corporation.

[1] Article 83 of the Local Public Enterprises Act, Article 80 of the Enforcement Decree of the Local Public Enterprises Act / [2] Article 129 of the Criminal Act, Article 83 of the Local Public Enterprises Act, Article 80 of the Enforcement Decree of the

[1] Supreme Court Decision 91Do3191 delivered on August 14, 1992 (Gong1992, 2706) Supreme Court Decision 2008Do8864 Delivered on December 24, 2008

Defendant 1 and one other

Defendant 1 and Prosecutor

Seoul High Court Decision 2009No2219 decided December 4, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

A. Article 83 of the Local Public Enterprises Act provides that "the officers of the Corporation and the Agency and the employees prescribed by the Presidential Decree shall be deemed public officials in the application of Articles 129 through 132 of the Criminal Act." Article 80 of the Enforcement Decree of the same Act provides that "the employees prescribed by the Presidential Decree" refers to the officers of the division or the head of the team or the head of the group or the head of the group or the head of the group or the head of the group or the employees above the head of the group or the head of the group or the head of the group" under the above Enforcement Decree refers to the employees above the head of the division or the head of the group or the head of the group or the employee above the head of the group or the head of the group or the head of the group or the employees above the head of the group or the head of the group or the head of the group, based on the class. Therefore, the issue is not raised (see Supreme Court Decisions 91Do3191 delivered on August 14, 192;

B. As to the acceptance of bribe during the period in which the Defendants worked as class 4 employee of the Incheon Urban Development Corporation (hereinafter “Corporation”), the lower court found Defendant 2 not guilty of the Defendants on the ground that the Defendants’ position is not a person in charge of independent “department,” but a person in charge of class 4 employee belonging to the Team,” and Article 80 of the Enforcement Decree of the Local Public Officials Act provides that the Defendants are employees of class 4 employee of the Incheon Urban Development Corporation (hereinafter “the “Corporation”) as to the charge of acceptance of bribe during the period in which they worked as class 4 employee [the remainder of the crime day table 9 with respect to Defendant 1, and all of the crime day table attached to the judgment of the lower court with respect to Defendant 2], since the organization of the Corporation is “the team” and there is no organization of “A division” and the “A division” in the organization of the Corporation, and thus, the Defendants did not constitute public officials of class 1 or higher in light of the recent movement of organizational reorganization, and thus, the Defendants did not constitute employees of class 4 or higher.

C. However, the above judgment of the court below is not acceptable.

According to the reasoning of the judgment below and the records, Article 4 (2) of the Addenda to the articles of incorporation of the Corporation provides that "the first organization regulations, personnel management regulations, remuneration regulations, welfare regulations, etc. necessary for the enforcement of the articles of incorporation shall be determined by the mayor." The personnel regulations stipulate the types, classes, and positions of employees. The positions of class 4 are determined by the director. The positions of class 3 employees shall be determined by the head of the team, the head of the group, and the head of the division, etc. from February 20, 206. The defendant 1 was determined by the head of the division. ② The defendant 1 was appointed as class 4 on October 10, 203 and was ordered by the head of the division on April 6, 2005. The director of the first organization, the director of the first organization (Grade 4), the head of the second class construction team (Grade 4) and the head of the fourth class construction team on February 15, 2008.

If the facts are identical, the chief of division shall be appointed as class 4 employees in accordance with the personnel regulations delegated by the articles of incorporation of the corporation. Thus, as long as the Defendants served as class 4 employees of the corporation, the Defendants constitute an executive officer under Article 80 of the Enforcement Decree of the Local Public Enterprises Act and may be the subject of the crime of acceptance of bribe under Article 129(1) of the Criminal Act pursuant to Article 83 of the Local Public Enterprises Act, and even if there is no organization of "department" in the organization of the corporation, it shall not interfere with the establishment of the crime of acceptance of bribe.

Nevertheless, the lower court upheld the first instance judgment that acquitted the Defendants of this part of the primary facts charged, solely on the grounds as indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of employees eligible to be the subject of the acceptance of bribe under the Local Public Enterprises Act

2. Judgment on Defendant 1’s grounds of appeal

The lower court determined that Defendant 1 was an employee of Nonindicted Party 1, who was in charge of Nonindicted Party 1’s business to whom Nonindicted Party 2 had been supplied during the second half of the year of receipt of bribe to Nonindicted Party 1, and that Nonindicted Party 1’s employees constituted “employee of the team leader or higher” under Article 80 of the Enforcement Decree of the Local Public Enterprises Act, based on his class, and whether the head of the team or higher was in charge of the same affairs. As such, the lower court determined that Defendant 1 was the “employee of the Corporation or higher than the team leader in the articles of incorporation,” and that Defendant 2’s employees were in charge of construction and supervision of new facilities and equipment for the first half of the year of the year of delivery to Nonindicted Party 2, who was in charge of the first half of the year of supply of goods to Nonindicted Party 3, and that the first half of the year of supply of goods to Nonindicted Party 1, who was in charge of the second half of the year of supply of goods to Nonindicted Party 2, and that the construction and supervision of the construction team was in charge.

In light of the records, the above judgment of the court below is just and acceptable, and there were no errors by misapprehending the facts against the rules of evidence or by misapprehending the legal principles on the crime of bribery.

3. Conclusion

Therefore, the part of the judgment of the court below as to Defendant 1's acquittal and Defendant 2 should be reversed in its entirety, and the appeal as to Defendant 1's conviction is without merit. However, since the crime that the court below found Defendant 1 guilty and each crime that found Defendant 1 not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below as to Defendant 1's conviction should be reversed together with the part

Therefore, the entire judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)