What images come to mind when you think of bribery?

Many people will cite the scene where a person with money hands over a shopping bag or box containing money to someone with power.

Of course, the classic and typical bribery crime looks like this.

However, there is a crime of bribery that is subject to punishment even if the money is transferred openly, the person in power does not take the money personally, and even if the money is used for something valuable.

The charge for which former President Park Geun-hye was punished, and the charge that the prosecution is now applying to Democratic Party leader Lee Jae-myung, is the 'third party bribery'.


Since there is no personal money, is it not a 'bribery crime'?

Third-party bribery is stipulated in Article 130 of the Criminal Code.

Criminal Act Article 130 (Bribe to Third Party) When a public official or arbitrator causes, demands or promises to pay a bribe to a third person in response to an improper solicitation in relation to his/her duties, he/she shall be punished by imprisonment for not more than 5 years or suspension of qualifications for not more than 10 years. face


What does it mean?

In general bribery, the bribe is directly handed over to a public official.

That is why it is also called direct bribery.

On the other hand, in third-party bribery, the third party literally receives the money, not the public official.

For example, when a businessman named A makes an 'unjust solicitation' to a public official named B to grant permission, the money is given to C, a 'third party' designated by the public official, instead of the public official.



There is a part that many people misunderstand about this composition.

It is to interpret a 'third party' as an 'entourage' who has an interest or close relationship with a public official.

Since it is burdensome for a public official to receive money directly, it is understood that the act of accepting a bribe through a friend, family member, or subordinate, such as a 'entourage', is a third-party bribe.

A representative example of this misunderstanding is what Democratic Party spokesman Kim Eui-gyeom said regarding the suspicion of donations to Seongnam FC.



Democratic Party lawmaker Kim Eui-gyeom / Remarks on September 13, 2022


"The nature of the money (provided by companies to Seongnam FC) is an issue, but it is just a payment for advertising sales. It was handled extremely legally and transparently. All Seongnam It was used for the citizens. To prove the allegation, you need to show evidence that advertising money (provided by companies to Seongnam FC) flowed to CEO Lee. But nothing came out. To borrow President Yoon Seok-yeol's expression, 10 won Did any chapters come out?"


Rep. Kim Eui-gyeom's remarks are interpreted to mean that in order to prove the crime of bribery to a third party in the Seongnam FC case, advertising money provided by companies to Seongnam FC, a third party, should have flowed to the public official, CEO Lee Jae-myung.

However, third-party bribery does not apply only when the third party sends money back to the public official.

There need not even be a conflict of interest or personal relationship between third parties and public officials.



Attorney Lee Sang-min (co-representative of HelpMe Law Firm) said,

"Rather, we should think the opposite. If such people who can be identified as public officials, such as spouses or family relations, receive money, it is judged that the public official received the money directly. So in this case, it is not a third-party bribery crime, but a direct bribery crime. Rather, it can be seen that the case where the third party does not have an interest in the public official more accurately falls under the third-party bribery crime."

explains.



In other words, the third party who received the money does not have to send the money back to the public official, and even the third party and the public official do not have to be personally close or share interests.


The reason why money is punished for bribery even when money is spent on good things

Then why is this act punished as '(third party) bribery'?

In fact, this was a story often shouted by supporters of former President Park Geun-hye, who was punished for bribery to a third party a few years ago.

It was wrong to punish "a president who didn't (personally) take a dime."

These days, it seems that supporters of Lee Jae-myeong, the representative of the Democratic Party, who are politically opposite, are making similar claims.



The reason for the strict punishment by stipulating third-party bribery is clear.

This is to avoid degrading the duties of civil servants into objects of buying and selling.

This

is called

the 'non-purchasability of jobs' .



Let's say there is a rich man who wants to build a big new house on his land.

The land this man owned was a place where it was impossible to get a house building permit.

In order to resolve the licensing issue, he mobilized various personal connections to meet with the public official in charge of building permits.

However, this official said, "There is an orphanage in front of our city hall, and if you donate 10 million won to it, we will give you a building permit."

The official had no stake in the orphanage, but he made this offer because he thought helping the orphanage was a good thing.

The person who wanted to build a house readily donated 10 million won to the orphanage, and the public official exercised his/her authority to grant the building permit.



In this case, will third-party bribery constitute a crime?



come true clearly

This is because it is an act of having a public official donate (provide) money and valuables to a third party "orphanage" in exchange for "unjust solicitation" in relation to his/her "duty" of building permission.

So why should we punish this behavior?

Think about it from the point of view of a person seeking a building permit.

For this person, whether he handed 10 million won directly to a government official or donated 10 million won to an orphanage, he could get a building permit by spending only 10 million won.

You can buy a building permit for 10 million won.



What would happen if these things were left unpunished?



Anyone with money will send money to a third party designated by a public official and try to buy preferential treatment or concessions.

The duties or administrative acts of public officials are subject to purchase.

Third-party bribery is stipulated to prevent this.

This is the reason why third-party bribery is punishable even if the money does not come directly into the pocket of the public official, even if there is no defect in the official's approval and permission act itself, and even if the money that has been passed over as a result is used for something valuable.



Attorney Kim Jeong-chul, a lawyer specializing in criminal law (lawyer at Woori Law Firm), said,

“The non-buyability of public officials means that certain public official acts should not be performed in connection with monetary compensation. Even if the related official act was a very appropriate and very reasonable act as a result, it becomes a crime the moment it is linked to money.”

explains.



Judgment is also clear.

In 2006, the Supreme Court sentenced Lee Nam-gi, former chairman of the Fair Trade Commission, to be found guilty of third-party bribery.

Former chairman Lee was asked by SK Telecom to be lenient in relation to the corporate merger review, and he made a donation of 1 billion won to the temple he attended.

The temple that received the donation did not directly benefit former chairman Lee Nam-ki.

Even Lee's administrative actions related to the business combination review itself were within the scope of his discretion.

However, the Supreme Court ruled that

"although the performance of the duties itself is not illegal or unreasonable, if the solicitation involves the delivery of compensation for the performance of the duties by linking the performance of the duties with a certain reciprocal relationship, it is an 'improper solicitation'. should be regarded as applicable."

He admitted to bribery to a third party.



In addition, in the case of former Anseong Mayor Lee Dong-hee, in 2007, instead of granting permission for a golf course, he asked companies to donate money to the body sports association for the budget of North Korea aid projects, and was convicted of third-party bribery.

There is also a case where she was convicted for asking to plant a tree.

In 2008, a Gangneung City Hall official who demanded that a tree be planted in front of the City Hall in return for a permit to convert the mountain area was found guilty.


Is CEO Lee Jae-myung's third-party bribery crime established? - The key issue is the relationship of compensation


Can this third-party bribery law be applied as it is to the case of Lee Jae-myung's alleged donation to Seongnam FC?



First, let's look at the prosecution's view of this case.

The prosecution said that from 2014 to 2017, Seongnam FC received about 16 billion won in donations from six companies, of which at least 5.5 billion won from Doosan E&C, 3.9 billion won from Naver, and 3.3 billion won from Cha Hospital were each It is regarded as 'third party bribery' related to the company's licensing issues.

It is said that Doosan Construction, Naver, and Cha Medical Center made an "unjust solicitation" to Seongnam Mayor Lee Jae-myung, who was a public official and license holder at the time, and in return, made a donation to Seongnam FC, a "third party."



Whether the money was transferred from the third party, Seongnam FC, to CEO Lee Jae-myung, whether it was an unfair act to prepare money for Seongnam FC, and whether the licenses and permits for Doosan Construction, Naver, and Cha Hospital were within the normal range are third-party bribery. The fact that it is not a key variable in establishment has already been explained above.

If so, is the third-party bribery charge that the prosecution is applying to Lee Jae-myung immediately established?



It is difficult to say definitively.

This is because there are more issues to be considered regarding whether or not the Seongnam FC case constitutes bribery to a third party.



The first is the

'relationship in return'

all.

You can also paraphrase whether or not it is an 'unjust solicitation'.

If there is a direct relationship between the request (solicitation) made by the companies to Mayor Lee Jae-myung and the money that the companies provided to Seongnam FC, a 'relationship in return' is established, and if a 'relationship in return' is established, the company's solicitation is an 'unfair solicitation' ' because it becomes.



As mentioned before, even if the administrative act of Seongnam Mayor (CEO Lee Jae-myung) at the time of accepting the request of the companies was within the scope of discretion, this is an act of receiving a bribe in return for granting an improper request and is punished.

Therefore, the core of this case is whether or not there is a direct relationship between the solicitation of companies (approval issue) and the money they gave to Seongnam FC.




Prosecutors say there is a lot of evidence.

As a representative example, Doosan E&C is presenting an official letter sent to Seongnam City in October 2014.

If the use of the site in Jeongja-dong, Bundang-gu, Seongnam-si is changed so that Doosan E&C's office building can be built, it will actively consider providing part of the office building as public facilities or sponsoring Seongnam FC.

After this official document was delivered, Seongnam City approved the change of use of the Jeongja-dong site, and after that, Doosan E&C actually executes advertising expenses for Seongnam FC.



Prosecutors see this official document as key evidence proving the connection between the money sent by Doosan E&C to Seongnam FC and Doosan E&C's solicitation for permits and permits.

In addition, the prosecution is showing the position that it has secured enough evidence from Naver and Cha Hospital to prove the 'relationship in return'.



Representative Lee Jae-myung's side completely denies this connection.

Regarding the official document from Doosan Engineering & Construction, which has been reported several times in the media, it is in a position to actively refute it in the course of future investigations and (possibly expected to follow) trials.

The fact that they secured evidence from Naver and Cha Hospital is also being undervalued, saying that it is just a one-sided (distorted) claim by the prosecution.

Which side is right will be revealed in the future trial process.



The second issue is whether the companies recognized the provision of advertising expenses to Seongnam FC as ordinary advertising expenses unrelated to licensing issues.

This is also a problem related to the relationship between the money provided by companies to Seongnam FC and the solicitation of licenses from companies, that is, to prove the 'relationship in return'.



When arguing for a relationship in return, one of the most frequently cited grounds for denying the connection with solicitation is that it was a 'normal' act.

Representative Lee Jae-myung supporters say that football teams run by other local governments, such as Gyeongnam FC, Daegu FC, and Gangwon FC, also receive advertisement fees from companies, and that Doosan Construction, Naver, and Cha Hospital spend advertising expenses against Seongnam FC. It is for this reason that they claim to be only one.



Attorney Kim Jeong-cheol said,

"If companies have continued to provide such support to Seongnam FC before, and the amount of sponsorship is the same regardless of permission, it can be evidence to determine that it was not done as a reward related to official duties. However, in the meantime, sponsorship If there is no such support, and then administrative acts such as approval and permission are made, it can be indirect evidence to prove the relationship."

explains.

He

added, "In the end, the key is what kind of intention the person who provided the money provided, and (the relationship between the price and whether or not a bribe was paid) will be judged according to the intention and intention of the person who donated the money

."


Lee Jae-myeong vs. the prosecution, the people who have to watch over the next few years


Let's summarize our conclusions.



Among the claims of politicians and supporters who support Lee Jae-myeong, the claim that 'I did not personally receive a penny, so (third party) it is not a bribery crime' is wrong.

In other words, they are repeating the wrong slogans shouted by supporters of former President Park Geun-hye in the past.

Since the crime of bribery to a third party is a legal provision made to prevent public officials from paying money to perform their duties, whether the public official took money for personal purposes, or whether there was an interest between the third party and the public official who received the money, and whether the public official This is established regardless of whether the administrative act itself can be seen as a deviation from discretion.



In order to determine CEO Lee Jae-myeong's suspicion of third-party bribery related to Seongnam FC, it is not 'whether he personally took money', but 'relationship' between the money sent to Seongnam FC by companies and the permission issue requested by companies to Seongnam City, In other words, the cost relationship must be proven.

The fact that Lee Jae-myeong's supporters emphasize that it is common for companies to spend advertising money on local government-run soccer teams can be seen as an argument to deny the relationship by interpreting the act of sending money to Seongnam FC as a normal act.

In the end, if the core of the Seongnam FC donation suspicion case is summarized into one single thing, it can be said to be a 'relationship in return'.



Will the prosecution be able to prove the relationship in exchange for the suspicion of Lee Jae-myeong's donation to Seongnam FC?

Or can Lee Jae-myeong's side show that the prosecution only conducted an unreasonable investigation into the Seongnam FC case, which the police once decided not to send?



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