CONTENTS
- 1. A Case in Which the Issue Was Whether the Performance of Duties Constituted a Violation of the Improper Solicitation and Graft Act
- - The Lower Court's Judgment on the Violation of the Improper Solicitation and Graft Act
- 2. The Supreme Court's Judgment on the Violation of the Improper Solicitation and Graft Act
- 3. Violation of the Improper Solicitation and Graft Act, Daeryun's Strategy
1. A Case in Which the Issue Was Whether the Performance of Duties Constituted a Violation of the Improper Solicitation and Graft Act
This is a case in which the issue was whether the defendant, in the crime of violating the Improper Solicitation and Graft Act, received an improper solicitation and performed duties in violation of statutes.
At the time of the case in 2020, the defendant, an employee of the Korea Environment Corporation, received an improper solicitation from the representative and others of a collection and sorting company that recovers recyclable returned goods, to the effect that the grade of the returned goods be raised so that the unit price of the collection and sorting subsidy could be increased.
Accordingly, the defendant assigned an excessive evaluation score to the above company and was prosecuted for a violation of the Improper Solicitation and Graft Act.
The Lower Court's Judgment on the Violation of the Improper Solicitation and Graft Act
The former Improper Solicitation and Graft Act (before its amendment by Act No. 18576 of December 7, 2021, hereinafter the "former Improper Solicitation and Graft Act") provides that a public official or other person who has received an improper solicitation shall not perform duties accordingly, and it provides for criminal punishment of a public official or other person who, in violation of this provision, receives an improper solicitation and performs duties accordingly.
The performance of duties prohibited under the former Improper Solicitation and Graft Act is the "performance of duties pursuant to an improper solicitation." Rather than directly defining the concept of an improper solicitation, the Act specifically enumerated in each subparagraph the types of improper solicitation conduct in 14 areas, including permits and authorizations, taxation, recruitment, bidding, personnel affairs, investigation, and adjudication.
At the time, in 2020, the lower court, on the premise that the "performance of duties pursuant to an improper solicitation" provided for in Article 6 of the former Improper Solicitation and Graft Act was identical to the "wrongful act" in the crime of a wrongful act after accepting a bribe provided for in Article 131(1) of the Criminal Act, upheld the judgment of the court of first instance, which had found this portion of the facts charged guilty.
Article 131 of the Criminal Act (Wrongful Act after Accepting a Bribe, Subsequent Acceptance of a Bribe)
(1) When a public official or arbitrator commits the crime under either of the two preceding Articles and performs a wrongful act, the offender shall be punished by imprisonment for a definite term of not less than one year.
(2) When a public official or arbitrator, after performing a wrongful act in connection with his or her duties, accepts, demands, or promises a bribe, or causes a bribe to be given to a third party, or demands or promises such giving, the offender shall be subject to the same punishment as that under the preceding paragraph.
(3) When a person who was a public official or arbitrator accepts, demands, or promises a bribe after receiving a solicitation during his or her tenure and performing a wrongful act in connection with his or her duties, the offender shall be punished by imprisonment for not more than five years or suspension of qualifications for not more than 10 years.
2. The Supreme Court's Judgment on the Violation of the Improper Solicitation and Graft Act
In the case concerning a violation of the Improper Solicitation and Graft Act, the Supreme Court rendered a judgment holding that the "wrongful act" in the crime of a wrongful act after accepting a bribe provided for in Article 131(1) of the Criminal Act and the "performance of duties pursuant to an improper solicitation" provided for in Article 6 of the former Improper Solicitation and Graft Act cannot be interpreted identically.
The Supreme Court determined that the guidelines (the Guidelines on the Handling of Affairs of the Extended Producer Responsibility System) set by the President of the Korea Environment Corporation in accordance with the Ministry of Environment's established rule (the Guidelines on the Handling of Affairs concerning the Fulfillment of Recycling Obligations) were merely internal standards for handling affairs, and that, therefore, even if the defendant violated the above guidelines while performing the grade survey duties at issue in this case, it was difficult to find that, on the basis of such circumstances alone, the defendant's performance of duties immediately constituted an "act in violation of statutes" provided for in Article 5(1)12 of the former Improper Solicitation and Graft Act.
∙ Article 5(1)12 of the former Improper Solicitation and Graft Act: an act of having an evaluation, decision, or recognition made in violation of statutes, or having the result manipulated, with respect to various evaluation, decision, or recognition affairs conducted by a public institution
However, the Court held that it was sufficiently recognized that the defendant performed the grade survey duties at issue in this case by assigning an excessive evaluation score to the above company in accordance with the purport of the solicitation received from the company's representative, and that this was intended to pursue the private interests of the person making the solicitation in violation of the standards for handling affairs and contrary to equity, and that it clearly violated the purpose of the grade survey duties at issue in this case, which were for the calculation of a proper collection and sorting subsidy.
The Supreme Court determined that the defendant's performance of the grade survey duties at issue in this case was an act that deviated from or abused the position and authority granted under statutes, and that this constituted the performance of duties pursuant to an improper solicitation provided for in the former Improper Solicitation and Graft Act.
In the end, the Supreme Court found that, although the lower court's reasoning, which proceeded on the premise that the act was identical to the wrongful act in the crime of a wrongful act after accepting a bribe, was not appropriate, the conduct did fall within the performance of duties pursuant to an improper solicitation, and it therefore dismissed the defendant's final appeal.
3. Violation of the Improper Solicitation and Graft Act, Daeryun's Strategy
The "act of exercising authority beyond the position and authority granted under statutes" provided for in connection with a violation of the Improper Solicitation and Graft Act refers to an act of abusing the position and authority granted under statutes or going beyond the scope of that authority.
In order to determine this, one must examine, in a comprehensive manner, the specific content of the position and authority granted under statutes and the scope of the duties, whether there was a violation of the internal standards for handling affairs, whether there was a violation of the principles of proportionality and equality, and whether there was a violation of the purpose of the act in question or any improper motive.
To determine whether there has been a violation of the Improper Solicitation and Graft Act, it is important to accurately ascertain the scope of the position and authority granted under the statutes.
The 🔗criminal litigation attorneys of Daeryun Law Firm review matters such as the exceptions to a violation of the Improper Solicitation and Graft Act and, through an accurate interpretation of the legal principles, provide a defense strategy tailored to the client's circumstances.
