청탁금지법상의 금품등 수수 금지 예외사유로서의 상급자의 위로나 격려 ― 대법원 2018. 10. 25. 선고 2018도7041 판결 ―

Supreme Court ruled “Which Chief of the Seoul Central District Prosecutors' Office provided members above the gangway of the Department of Justice with food prices worth 95,000 won and 1,000,000 won each to two people is not subject to the Composition requirements of ‘the Prohibition of Acceptance of Financial or other Advantages Clause’ under the Improper Solicitation and Graft Act. Rather it falls under Senior Public Official’s Consolation or Encouragement as Exceptions of Prohibition of Acceptance of Financial or other Advantages under the Improper Solicitation and Graft Act §8③ⅰ. Thus the defendant is not guilty, and the prosecutor’s appeal shall be rejected” on 25th, October 2018. But I don’t agree with the above decision’s ruling in the following two senses. First, Supervisors who are able to deliver reward for consolation or encouragement for reasons of exception to the Improper Solicitation and Graft Act §8③ⅰ shall be construed only as supervisors within the same organization in relation to the directional monitoring. Only when the higher authority of the agency to which it belongs is interpreted as being superior to the higher authority of the exception above, it is consistent with the purpose of legislation, the public's legal sentiment, and the interpretation in harmony with other laws. Second, according to the budget execution guidelines for state agencies or government employees, the amount of encouragement can be paid only to internal junior public officials, and the source of the funds should be administrative expenses for the official-responsibility-fulfillment. But, because the food price of this case was the cost of working and the money was spent on special activities, aside from the violation of the budget execution guidelines, the purpose of consolation or encouragement in that event is to be denied, and the defendant, not the prosecutor, should bear the burden of proof for this.