Case concerning the method of calculating the value of entertainment provided to a public official, etc. under Article 8(1) of the Improper Solicitation and Graft Act (hereinafter the "Anti-Graft Act")


【Holding】

In a crime of violating the Improper Solicitation and Graft Act by receiving and providing money, goods, or other benefits, where the defendant, a public official or the like, received entertainment and consumed it together with the provider of the entertainment, and the provider paid the money required therefor, the method of calculating the value of the entertainment received by the defendant / Whether the same applies where there are multiple public officials, etc. who received the entertainment at the same time (affirmative) / In such a case, where there are special circumstances warranting an evaluation that the values of the entertainment received by each of the multiple public officials, etc. differ, whether such circumstances must be reflected (affirmative)

【Summary of Decision】

In a crime of violating the Improper Solicitation and Graft Act (hereinafter the "Anti-Graft Act") by receiving and providing money, goods, or other benefits, where the defendant, a public official or the like, received entertainment and consumed it together with the provider of the entertainment, and the provider paid the money required therefor, in calculating the value of the entertainment received by the defendant, the court must first separate the expenses incurred in entertaining the defendant from the expenses consumed by the provider of the entertainment, and then treat the amount of the former as the value of the entertainment received by the defendant; if the expenses incurred for each person are unclear, absent special circumstances, the amount obtained by dividing the expenses equally must be recognized as the value of the entertainment received by the defendant. The same applies where there are multiple public officials, etc. who received the entertainment at the same time. However, where there are special circumstances warranting an evaluation that the values of the entertainment received by each of the multiple public officials, etc. differ, such circumstances need to be reflected so that the evaluation and attribution of the value of the entertainment may be carried out appropriately in accordance with the legislative purpose of the Anti-Graft Act. That is, where, in light of the relationship between the provider of the entertainment, the defendant who is a public official or the like, and the other participants, the status of each, the purpose and reason for which the entertainment was provided, the circumstances of participation and the time of participation, and the details and characteristics of the entertainment provided, special circumstances are proven under which the value of the entertainment received by another participant cannot be evaluated as identical to that received by the defendant, the court must separately determine the value of the entertainment received by the other participant, deduct it from the total expenses, and set the value of the entertainment attributable to the defendant as the amount obtained by dividing the remaining value equally among the remaining participants, including the provider of the entertainment. Provided, however, that in the crime of violating the Anti-Graft Act by receiving and providing money, goods, or other benefits, the fact that the value of the money, goods, or other benefits exceeds one million won on a single occasion or three million won in each fiscal year forms part of the elements of the crime, so that whether criminal punishment is imposed depends on that value; accordingly, the value of the money, goods, or other benefits received, including entertainment, must be calculated carefully by reasonable standards consistent with the principle of culpability, and where the prosecutor, who bears the burden of proving the charged facts, does not prove special circumstances under which the value of the entertainment provided to another participant cannot be evaluated as identical to that received by the defendant, the court must return to the general rule and treat the amount obtained by dividing the total expenses equally as the value of the entertainment received by the defendant.

【Referenced Statutes】

Article 8(1), (2), and (5), Article 22(1), subparagraphs 1 and 3, and Article 23(5) of the Improper Solicitation and Graft Act