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KCI등재 학술저널

수수된 금품에 직무관련성이 있는 업무에 대한 대가와 직무관련성이 없는 업무에 대한 사례가 혼재되어 있는 경우의 형사상 취급

대법원 2011. 5. 26. 선고 2009도2453 판결을 중심으로

In General, cases, where the money received is mixed up and with those related to duties and those that are not, and as a result inseparably combined to each other, are classified into two categories. Type One is when a part or all of the received money is not related to duties, but materially as a whole can be recognized as a bribe, as it is in general precedents. Type Two is when only a part of the received money can be recognized as a bribe, and the rest is not recognized as a bribe (for example, since it is a justifiable compensation), but is objectively hard to divide the parts. In regards to Type One, the whole money received shall be recognized as a bribe, and therefore be treated as a general bribery case. Therefore bribery is charged for all the money received, and “special criminal laws on specific crimes” is applied according to the amount of the bribery. However, in regards to Type Two, since only a part of the received money is bribery, the received amount of money cannot be calculated by a normal estimation method. Thus, in principle, the amount is handled as not calculable, so that “special criminal laws on specific crimes” cannot be applied. This judgement showed that Type Two exists, and has a significant meaning as a precedent since it showed that in such a case the amount of bribery cannot be calculated and thus is unable to be additionally collected. Nevertheless, subsequent judgments seem to have distorted this judgement. It restricted this judgement’s range of application only to “when the money was received on several occasions, and when each receiving act is needed to be individually judged whether it is related to duties or not.”

Ⅰ. 대상판결의 주요경과

Ⅱ. 연구

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