뇌물범죄의 체계와 삼각뇌물의 형사책임

Abstract

This article examines the complex system of bribery crimes under the current law, and examines the criminal responsibility of the public official and the third person in so-called triangular bribery. A triangular bribery refers to a case where a public official funnels a bribe to a third person in connection with his or her duties. Apart from the crime of acceptance of bribe under Article 129(1), the Criminal Act stipulates the crime of bribery against a third person in Article 130. The constituent act of the crime of bribery against a third party is an act of causing a bribe to be given to a third party on acceptance of an illegal solicitation in connection with his or her duties. The Criminal Act distinguishes between the crime of acceptance of bribe and the crime of bribery against a third person according to the bribe taker. In this article the former is referred to as the self-bribery offence, and the latter is referred to as the third-party bribery offence. And the bribe taker means the person who benefits from bribery or whom the bribe belongs to. Even if a public official does not accept a bribe on his own and a third party accepts a bribe, if the public official and the third party are in an economic community and the public official can be regarded as the bribe taker, self-bribery offence is established against the public official. However, even if the third party is the bribe taker whom the bribe belongs to, the case where the third party is in co-principals relationship with a public official can be regarded as if the public official received it directly, and thus self-bribery offence is established. This is the position of the Supreme Court. However this is not correct. This is because the system and structure of bribery crimes distinguishes between the self-bribery offence and the third-party bribery offence so even if a third party is in joint principal offender relationship with a public official if the third party is the bribe taker, whether the crime of bribery against a third person is established becomes a matter at issue. If a public official does not accept a bribe by himself and a third party accepts a bribe, even if the third party is the bribe taker, if the third party joins the public official's commission as joint principal offender, the third party is convicted of self-bribery offence, whereas if he participates as instigator or accessories of the Criminal Act, instigator or accessories committed against third-party bribery offence is established. This is the position of the Supreme Court. However this is not correct. This is because the criminal responsibility of principal offender is not determined first and the criminal responsibility of a third party, which is a participant, but conversely, the criminal responsibility of principal offender is determined according to the degree or type of participation by the third party.