Supreme Court: "High School PE Coaches Also Subject to Kim Young-ran Act"

Even If Money Was Received After Retirement, Promises Made Before Retirement Can Be Punished
'Promise to Give' Must Specify Amount to Be Subject to Recovery

The Supreme Court has ruled that physical education coaches who lead high school sports teams are included among the "public officials, etc." subject to the Improper Solicitation and Graft Act.

According to the legal community on the 16th, the Supreme Court's Third Division (Presiding Justice Oh Seok-jun) upheld the lower court's guilty verdict sentencing physical education coaches A and B, who were indicted for violating the Improper Solicitation and Graft Act, to eight months in prison with a two-year probation period.

However, the court overturned the order to confiscate money from A, who received money after quitting as a coach, having promised to receive money from B while serving as a physical education coach at C High School. The confiscation requires that the amount be specifically identifiable at the time of the promise, which was not the case here.

Supreme Court, Seocho-dong, Seoul.

A was hired in 2008 as a permanent contract educational public official (sports instructor) at the public school C High School and performed duties as a physical education coach.

In August 2017, A heard from junior B, who was working as an after-school instructor at the same school, that "after-school classes would soon be abolished, and jobs would be lost." A proposed that he would quit as a sports instructor and asked B to apply as his successor, requesting 4 million KRW per month for living expenses for one year.

In fact, A quit in December 2017, and B was appointed as the successor a month later. B transferred between 3 million and 4 million KRW monthly to A’s account for one year, sending a total of 46.8 million KRW.

A and B, who were brought to trial, argued that school sports coaches should not be considered "public officials, etc." subject to the Improper Solicitation and Graft Act. They also claimed that even if they were included as public officials, there was no issue because A received the money after leaving public service.

However, the first-instance court ruled that school sports coaches are subject to the Improper Solicitation and Graft Act as they are appointed under the School Sports Promotion Act, and since the agreement to exchange money occurred before A’s resignation, the violation of the Improper Solicitation and Graft Act was established.

The first-instance court sentenced A to eight months in prison with a two-year probation and ordered the confiscation of 46.8 million KRW. B was also sentenced to eight months in prison with a two-year probation. The appellate court imposed the same sentence.

The Supreme Court also found no problem with the lower courts’ rulings.

The court stated, "The Improper Solicitation and Graft Act includes faculty and staff of all levels of schools as 'public officials, etc.' and enumerates schools established under the Elementary and Secondary Education Act. Article 19, Paragraph 2 of the Act stipulates that schools have administrative staff and other employees necessary for school operations, and Paragraph 4 collectively refers to teachers and staff as 'faculty and staff.' Article 20, Paragraph 5 states that administrative staff and other employees handle administrative affairs and other duties as prescribed by law."

It continued, "Meanwhile, the School Sports Promotion Act includes schools under Article 2, Clause 2 of the Elementary and Secondary Education Act in its definition of 'schools' and defines 'school sports coaches' as persons affiliated with schools who lead and supervise school sports teams under Clause 6 of the same article. Considering these legal provisions comprehensively, persons working as 'school sports coaches' at high schools under the School Sports Promotion Act correspond to 'staff' under the Elementary and Secondary Education Act, and the fact that the superintendent of education, the competent authority, does not include 'school sports coaches' in the quota of educational public officials does not justify a different interpretation."

In conclusion, the court ruled, "Ultimately, high school sports coaches fall under 'faculty and staff of all levels of schools' as defined in Article 2, Clause 2, Subparagraph (d) of the Improper Solicitation and Graft Act," and "the lower court’s finding that defendant A is a 'public official, etc.' under Article 2, Clause 2 of the Act is appropriate."

However, the Supreme Court overturned the confiscation order against A.

According to Supreme Court precedent, if a public official promises to receive money and then receives it after retirement, the amount must have been specified at the time of the promise for confiscation to be possible. Since A and B did not clearly specify the amount at the time of their agreement, the amount could not be identified.

The court cited past rulings on bribery, stating, "Confiscation applies to specific items, and confiscation presupposes that confiscation was possible. Since the money involved in the bribery was not specified, confiscation is not possible, nor can the value be confiscated."

The court noted, "Only the violation of the Improper Solicitation and Graft Act due to the promise of money is established against defendant A. According to the reasons of the lower court’s judgment, since the amount of money to be received was not specified at the time of the promise, confiscation was not possible, and thus the value cannot be confiscated. The appellate court’s decision to confiscate 46.8 million KRW from defendant A, maintaining the first-instance ruling, misapplied the law on confiscation and affected the judgment."