1. Regarding the violation of the Presidential Records Management Act

A. Summary of the facts charged

From December 1, 2006 to February 25, 2008, Defendant 1 served as the Chief Secretary of ○○○○○○○○○○○○○○○○○○○ Office, and Defendant 2 served as the Chief Secretary from February 1, 2006 to February 2008.

Defendant 2 prepared the minutes of the ordinary conference (hereinafter referred to as “instant minutes”) carried out between the President of Nonindicted Party 1 (hereinafter referred to as “former President of Nonindicted Party 1”) and Nonindicted Party 2’s Chairperson of the North Korean National Defense Committee at the time of the event of the North Korea’s ordinary conference held from October 2, 2007 to October 4, 2007, and created “documents management card (hereinafter referred to as “documents management card of this case”) by means of “e support system,” which is a “e support system,” and written the necessary documents management card (hereinafter referred to as “documents management card of this case”) with the minutes of the minutes of Nonindicted Party 1’s ordinary conference held from October 2, 2007 to October 2, 200, Defendant 1 approved the electronic signature management card of this case, which received through the e-mail system, and Defendant 1 approved the digital signature management card of this case to the Presidential records of this case on October 1, 207.

From January 30, 2008 to February 14, 2008, the Defendants conspired to request Nonindicted 3 of the △△△△△ Party’s secretary, who managed the e support system, to delete the instant document management card attached to the instant document book, and Nonindicted 3 deleted the instant document management card from the e support system so that the file of the instant document management card can no longer be recognized by the user, and destroyed the document management card, which is the Presidential record, without permission.

B. The judgment of the court below

The court below found that the document management card of this case was a document in which the approving authority's approval was scheduled, and the document in which the approval was scheduled, was created as a public document only when the approval was granted, and it was created as a record. The court below found that the document management card of this case was not a public document approved by the former president, who was the approving authority, because it was difficult to view that the document management card of this case was intended to be established as a public document by approving its contents through the approval, and thus, it cannot be deemed that it was created as a presidential document. Thus

C. Judgment of the Supreme Court

1) Provisions and interpretation of Presidential records-related statutes

A) Article 82 of the Constitution declares the principle of documentaryism by stipulating that the act of the President under the laws of the Republic of Korea shall be in writing and that the Prime Minister and the members of the State Council shall be in charge of the relevant affairs. The Act on the Management of Records of Public Institutions was enacted on January 29, 199 to ensure the safe preservation of records and heritage and to promote the efficient utilization of records and information on public institutions by prescribing matters necessary for records management of public institutions. The said Act stipulates that the head of the Central Archives Management Institution shall collect and preserve all records created or received by the President and its assistant in connection with the performance of duties of the President (Article 13(1)), thereby embodying the principle of documentaryism regarding the acts of the President under the laws of the Republic of Korea (Article 13(1)). In addition, the said Act requires public institutions to prepare necessary measures for the process of performing duties so that all processes and results of performing duties from the formulation to the completion of duties to the completion of the duties (Article 16(1))

Since then, the Act on the Management of Presidential Archives (hereinafter referred to as the "former Presidential Records Act") was enacted on April 27, 2007 to enhance transparency and accountability in the management of the state affairs by prescribing matters necessary for the efficient management of Presidential records, such as the protection, preservation, and utilization of Presidential records, among public records, and the establishment and operation of the Presidential Archives. The former Act on the Management of Presidential Records (hereinafter referred to as the "former Presidential Records Act") provides that all processes and results related to the duties of the President and the heads of supporting agencies, advisory agencies, etc. of the President shall be created and managed as records (Article 7(1)).

B) Furthermore, Article 8 of the former Presidential Records Act provides that “The institutions under Article 2 subparag. 1 (b) and (c) of the former Presidential Records Act (hereinafter “the institutions”) and the record repository of the Presidential records creation institution and the head of the Presidential Archives shall have the Presidential records created and managed electronically, and shall have the records created and managed electronically, and shall have the records created and managed electronically.” In principle, all processes and results related to the presidential performance of duties should be created and managed as electronic records.

The Act on the Management of Archives of Public Institutions was wholly amended by Act No. 8025 on October 4, 2006 as the name was changed to the Act on the Management of Public Archives. The head of a public institution and the head of a records management institution shall prepare measures necessary to electronically create and manage records and endeavor to electronically manage records which have not been created in an electronic format (Article 6). In addition, the former Administrative Management Regulations (amended by Presidential Decree No. 20982, Sept. 2, 2008; hereinafter referred to as the "former Administrative Management Regulations") means a system that electronically manages the entire process of performing duties by using the task management card and document management card (Article 3 subparagraph 14). Article 6 of the former Enforcement Decree of the Act on the Management of Public Archives (wholly amended by Presidential Decree No. 2383, Dec. 21, 201; hereinafter referred to as the "Official Records Management Regulations") provides that the content of the electronic records creation management system and electronic records management system referred to in subparagraph 3 of Article 17 of the former Enforcement Decree of the Public Records Management Regulations.

C) The former Presidential Records Act provides for the procedure to transfer the created Presidential records to the central records management institution. For the smooth collection and transfer of Presidential records, the head of the institution in charge of the creation of Presidential records shall notify the head of the record repository under his/her jurisdiction of the current status of creation thereof every year and notify the head of the competent record repository thereof (Article 10(1)), the head of the record repository shall transfer the Presidential records to the record repository under his/her jurisdiction, and the record repository shall transfer the Presidential records subject to transfer to the central records management institution before the term of office of the President expires (Article 11(1) first part), and the head of the central records management institution shall have the transferred Presidential records managed by the Presidential records management institution (Article 11(3). The head of the record repository of the Presidential records management institution shall devise measures necessary for the transfer, such as the confirmation, preparation of a list of the Presidential records subject to transfer from six months before the term of office of the President expires (Article 1

D) The former Presidential Records Act has specific provisions on the destruction of Presidential records in order to prevent unauthorized destruction, etc. of Presidential records and secure a transparent collection, preservation, and management system thereof. First, when the preservation period expires, it shall undergo deliberation by the Presidential Records Management Committee (hereinafter referred to as the “Committee”). The head of the Presidential Records Creation Agency shall notify the head of the Presidential Records Creation Agency of the list subject to destruction 60 days before the date he/she intends to destroy the list, and notify the head of the Presidential Records Creation Agency of the results thereof within 50 days after receipt of the list after deliberation by the Committee. In such cases, the head of the Presidential Records Creation Agency shall, without delay, publish the list of the Presidential records subject to destruction in the Official Gazette or information and communications network (Article 13(2)). Furthermore, the Presidential records should be discarded after deliberation by the Committee (Article 13(3)).

2) Legal principles on the creation and possession of Presidential records

A) Article 17(1) of the former Electronic Government Act (amended by Act No. 1012, Feb. 4, 2010) provides that "Electronic documents shall be established by the approval (referring to the approval by the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the Central Election Management Committee Regulations, and the electronic means prescribed by Presidential Decree) of the relevant documents." Article 6-3(4) of the former Administrative Management Regulations provides that "a document management card shall be established in a public document with the approval by the electronic text signature and processing date indicated by the approving authority on the relevant document management card." Article 8(1) provides that "a document shall be signed on the relevant document (including electronic text signature, electronic image signature, and administrative digital signature; hereinafter the same shall apply)". In addition, Article 6-3(1) of the current Regulations on the Promotion of Administrative Efficiency and Cooperation, which has been completely amended after the amendment of the former Administrative Management Regulations, provides that "the approving authority shall be established by means of the document concerned."

In full view of the above provisions, an official document (including an electronic document) may be deemed to be established by the approving authority by means of signature, etc. In this context, the term "written approval" is an act of expressing his/her intent to be formed as a document through the signature, etc. of the approving authority. Whether the approving authority has obtained approval or not shall comprehensively consider not only whether the approving authority has signed the written approval but also the matters instructed by the approving authority, the kind and characteristics of the document subject to the approval, the provisions of the relevant statutes and the procedures for duties.

B) Article 2 Subparag. 1 of the former Presidential Records Act defines the Presidential records as “record created and kept by the President and other institutions with regard to the performance of duties of the President.” As such, the Presidential Records under the Presidential Records Act should be “production” by the Presidential records creation institution. However, where the relevant Presidential records have the character of official documents (including electronic documents), it is reasonable to view that they have been created as the Presidential records only after it was approved by the approving authority.

C) The main text of Article 20(1) of the former Enforcement Decree of the Public Records Act provides, “When a public institution creates or receives records, it shall assign them with the electronic records creation system of the institution and indicate them on the records.” Article 24 of the former Enforcement Decree of the Public Records Management Act provides, “Public documents shall be immediately recorded in the records register and the creation registration number shall be assigned pursuant to Article 20 of the Enforcement Decree of the Public Records Management Act.” Article 20(1) of the former Enforcement Decree of the Public Records Management Act provides, “The registration is made after the creation of records including public documents.”

Furthermore, the former Presidential Records Act was enacted to enhance the transparency and accountability of the state administration by allowing the public to disclose it through systematic preservation and management of Presidential records, and the transfer procedure prescribed by the above Act is during the term of office of the President to maintain the continuity of state administration.

In full view of the fact that records created are to be transferred to the Presidential Archives under the jurisdiction of the National Archives before the end of the term of office, and that records created by the Presidential records creation institution have not been registered or transferred, it is reasonable to view that the term "holding" under Article 2 of the former Presidential Records Act refers to "the de facto possession," and it is not different even if it did not reach the registration or transfer, in view of the fact that records created by the Presidential records creation institution are not recorded or transferred.

(iii) the facts of recognition

According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are recognized:

A) The “e-support system,” which is a business management system, is an integrated work management system that supervises the entire business system, including document management system, task management system, and records management. Of these, the document management system is the core to introduce a new document management card, which is a system designed to standardize the document management, which is the basic unit of administrative affairs, for the purpose of enabling the production, circulation, accumulation, and recycling of documents. The document management card consists of three parts of the document management card, such as the title, purpose of preparation, date of preparation, and document management. The document management card contains basic outlines, such as document title, purpose of preparation, document preparation, document preparation, and document preparation, and the document management book consists of records management and records management by classifying the types of public relations methods selected.

The “statement of document management card” consists of a document that can identify the purpose and character of the document, as well as a part attached to and linked to the same text as the minutes of this case in the file format. As such, document management card is an electronic document form that contains the content of decision-making by multiple persons in charge of the affairs in charge of the preparation process of the main body attached in the file format, and it is impossible for the originator to delete at will after the creation, and it is impossible for the originator to delete the document at will, and the process or additional information is recorded and preserved until the completion of the relevant duties.

B) On October 9, 2007, Defendant 2 prepared the document management card of this case in the e support system, which is the Cheongdae-dae Integrated Business Management System, the title of this case was '(name omitted), '(name omitted), '(name omitted),' 'business report', 'Defendant 1, 1,000, and 'the channel for reporting' was set in order of 'Defendant 1,000 and 'the President outside the public prosecution', '(name 1 omitted)', and 'the opinion of processing' was written in '((name 1 omitted)' with the file of the minutes of this case, and approved approval at around 16:34 on the same day.

C) On October 19, 2007, at around 22:55, Non-Indicted 1 opened a file of the minutes of this case attached to the document management card of this case approved as above and confirmed the contents thereof. On or around 21:23 of the same month, Non-Indicted 1 entered “(processing Opinion 2 omitted)” in the “written management opinion” column of the document management card of this case as “(Processing Opinion 2 omitted).” On the screen of the approving authority’s selection of the “document processing item”, Non-Indicted 1 classified “inspection items” into perusal, enforcement, re-review, postponement, and medium suspension of inspection. The former president of Non-Indicted 1 separately prepared a file of “hp” around 11:56 of the same day, and attached it to the document management card of this case.

D) The former president of Nonindicted Party 1 entered the foregoing item into the document management card of this case with the date on which Nonindicted Party 1 was signed and processed the electronic document on the document management card of this case. After that, Nonindicted Party 4 in the document management card of this case, who was in charge of prior and subsequent inspection of all approvals and reporting documents sent to the president of the former president on October 21, 2007, was processed by delivering the document management card of this case returned to him on his own document around 14:47 on October 21, 2007 to Defendant 2. Defendant 2 was able to register the document management card of this case by selecting the document management card of this case, but he did not select the "ended processing" item on January 30, 2008.

E) Electronic records created through the electronic records creation system are transferred to and kept by the person in charge of the management by dividing the "ended on the system" pressing, and the registration number has been created through the archives management system, which is a record repository within the Cheongbu. The secretary in charge of the management of the Cheongbu District notified that the Cheongbu District Office can electronically reclassification and transfer the electronic records management card that has been processed by the Cheongbu District to the employees belonging to the Cheongbu District and by the end of January 2008 in the case of electronic documents, such as document management cards, etc. for the classification of records provided by Article 16(2) of the former Presidential Records Act.

F) On February 14, 2008, at around 11:30, users changed the web page address (URL) of the e-support system, and came to be the e-support system, 'hutadow'. Defendant 2 prepared the minutes for correction and supplementation of the contents of the instant file in accordance with the instructions given by Nonindicted 1 former President. Defendant 2 prepared the e-mail report “(memo reported omitted) by accessing the e-support system on February 14, 2008,” using the computer located in the secretary in △△△△△△△△△△△△△△△△△△△△△△△△△△△△△, followed the minutes files corrected and supplemented as above, and registered them as the recipient of the e-mail system, and recorded them as the digital signature processing method (e-mail report) or a document management method similar to the e-mail card.

G) From the table, “e support system’s e support system’s e support system’s e support system’s e support system’s e support system’s e support system’s e-mail at the end of the term of Nonindicted Party 1’s office, Nonindicted Party 1’s work was conducted to make certain document management cards, such as test documents and duplicate documents’ management cards, unrecognating from the e-support system. The instant document management card also was deleted from the main table of the e-Support System’s e-Support System’s e-Support System’s e-Support System’s e-Support System.

4) Determination on the creation and holding of Presidential records

A) Comprehensively taking account of the legal principles on Presidential records as seen earlier, the former Presidential Records Act, the legislative intent and contents of the former Public Records Act, the purport of the introduction of document management system that makes the information created in the course of document preparation remain as a record, the contents of instructions attached by Nonindicted 1 and the procedures for performing duties through document management system, etc., it is reasonable to deem that the former president, on October 21, 2007, expressed his intention to form and approve the instant document management card accompanied by the instant minutes as a public document by creating and approving the signature on the instant document management card after confirming the contents of the minutes of the minutes of this case. Accordingly, it is reasonable to deem that the instant document management card was created as a presidential record. The reasons are as follows.

(1) On October 9, 2007, the document management card of this case contains information on the decision-making of the party involved in the production process of the minutes of this case, including the fact that Defendant 2 prepared the minutes of this case on October 9, 2007 and approved the approval to the former president via Defendant 1, Defendant 1 stated his treatment opinion, Defendant 1 confirmed the contents of the files of the minutes of this case approved by the former president, and the fact that Nonindicted Party 1 attached an instruction to the effect that “(the summary of the instructions 1 omitted)” was carried out on the 11:23 of the same month after confirming the contents of the files of the minutes of this case approved by the former president. Such information constitutes information on the decision-making of the party involved in the production process of the minutes of this case (Article 6-3(3) of the former Administrative Management Rules). Such information constitutes a draft (subparagraph 1), the opinion, modified contents of the opinion and instructions (subparagraph 2), and the contents of decision-making (subparagraph 3).

(2) The document management system of the Cheongdae e Support System shall be as stipulated by the Gu office management regulations, etc.

The purpose of the decision-making system is to make decisions within the agency through the exchange of opinions between the person who has the draft and the superior of the document preparation. The document management card consists of a part of the Cheongdae Integrated Work Management System, which accumulates and manages the process and results of the communication until it attains a certain purpose of business.

(3) Article 18 of the former Enforcement Decree of the Public Records Act provides that the meeting minutes shall be prepared when the president holds a meeting (Article 18(1)1), and the above meeting minutes shall include the name of the meeting, holding institution, date, time, and place, list of participants and associates, order of progress, agenda items, gist of the meeting, decision-making items, and details of voting (Article 2). As such, the meeting minutes shall be deemed as a document that contains objective information, such as the date, time, place, and the meeting held, the order of the meeting held, and the details of the meeting, and the intent of the approving authority to approve the meeting shall be deemed as an intention to peruse and confirm the contents of the meeting, not a dispositive and disposal intent, such as approval or permission.

(4) Nonindicted 1’s former president’s instructions attached to the instant document management card are “(the summary 2 omitted).” This is not contradictory to Nonindicted 1’s intent to read and confirm the contents of the instant minutes approved by the former president.

(5) Defendant 2’s duty is to correct any clerical error in the minutes of this case, prepare each week’s accuracy and degree of completion with respect to the contents that may cause misunderstanding, and then register them in the e-support system in the form of a conversation. Such duty arises on the basis of Nonindicted Party 1’s former president’s “Directions attached to the document management card of this case.” As such, the matters directed by the approving authority through the document management card are the basis for the follow-up business process, as well as the criteria for determining whether the documents approved by the re-preparation are appropriate.

(6) Article 6-3(4) of the former Business Management Regulations, which was in force at the time, stipulated that “a document management card shall be established by means of official documents, with the approval of the approving authority’s electronic text signature and processing date on the document management card concerned by means of the electronic text signature and processing date indicated by the approving authority.” The former president of Nonindicted Party 1 selected a “return order for the document management card of this case” and could return it to the originator without the creation of electronic text signature, but did not so, selected a “document processing” and “inspection” order and made it generated by the electronic text signature and processing date.

B) As above, the document management card of this case created by Presidential records was carried out on October 21, 2007 to Defendant 2, who was the draftr, and Defendant 2 did not select an item of "processing" as to the document management card of this case, and kept it in the document keeping, such as "Continuing review around January 30, 2008." Therefore, the document management card of this case constitutes the Presidential records produced and possessed by the presidential support agency.

5) Judgment on the unauthorized Destruction

When the head of the former Presidential Records Creation Agency intends to destroy the Presidential records whose preservation period has expired, he/she shall discard them after deliberation by the Committee (Article 13), and no one shall destroy, damage, conceal, destroy or leak the Presidential records without permission (Article 14), and there is a provision punishing a person who destroys the Presidential records without permission in violation of Article 14 (Article 30 (1) 1). Accordingly, the Presidential records created shall not be arbitrarily destroyed unless they are subject to the discard procedure prescribed by Article 13 of the former Presidential Records Act.

In the end of the term of office of Nonindicted 1, the record reclassification work for the transfer of archives was carried out at the Cheongbu Department as of the end of the term of office of the former president, and the process was conducted to make the test documents and the document management cards, etc. pertaining to duplicate documents or duplicate documents not recognizable in the e-mail item. However, the document management card of this case cannot be deemed as duplicate documents or the test documents. Therefore, if the Defendants deleted the information so that the e-support system would no longer recognize the document management card of this case, it constitutes the destruction of the presidential records, and the circumstances that the NIS created and preserved the “(name of minutes omitted)” do not constitute grounds to justify the act of destruction.

6) Sub-decisions

Nevertheless, the judgment of the court below that acquitted the facts charged in this part for the reasons stated in its holding is erroneous in the misapprehension of legal principles as to the creation of Presidential records and the establishment of official documents, which affected the conclusion of the judgment, and the grounds for appeal by the prosecutor

2. As to damage to public electronic records, etc.

A. Summary of the facts charged

The author of the document management card of this case, and the Defendants, the examiner, deleted the information corresponding to the document management card of this case from the e-support system document management card to delete the information corresponding to the document management card of this case in the e-support system, thereby preventing the e-support item from recognizing the document management card of this case, thereby nullifyinging the document management card of this case, which is an electronic record used by public offices.

B. The judgment of the court below

The lower court acquitted the Defendant of this part of the facts charged on the grounds that the instant document management card cannot be deemed electronic records used by public offices on the following grounds.

1) The file of the instant minutes is an extract before the final completion, and the Defendants prepared and supplemented the minutes of the instant minutes in accordance with the direction of the former president of Nonindicted Party 1, and there is no evidence to deem that the Defendants intended to destroy or leak the completed minutes.

2) The file of the instant minutes cannot be deemed as electronic records used by public offices, and the instant document management card, which forms an integral part with the file of the instant minutes, cannot be deemed as electronic records used by public offices. Therefore, even if Defendant 2 deleted information on the instant document management card, it cannot be deemed as invalid electronic records used by public offices, and there is no other evidence to acknowledge it.

1) Article 141(1) of the Criminal Act provides that a person who has damaged or concealed documents or other articles used by public offices or special media records such as electronic records shall be punished. “Documents and other electronic records used by public offices” include documents prior to the effect thereof as official documents (see, e.g., Supreme Court Decision 71Do324, Mar. 30, 1971); documents which did not undergo the procedure of receipt and approval; documents which were returned in the process of approval (see, e.g., Supreme Court Decisions 98Do360, Aug. 21, 1998; 80Do1127, Oct. 27, 1980; 2003Do3945, May 25, 2006).

2) As seen earlier in light of the aforementioned legal principles, the document management card of this case, attached with the instant meeting minutes, was scheduled to take follow-up measures pursuant to Non-Indicted. 1’s former president’s signature creation with the intent of approval, and the information recorded in the document management card of this case is the electronic records used by public offices. In full view of the fact that the information recorded in the document management card of this case is the basis for follow-up business operations, the document management card of this case constitutes “electronic records used by public offices.” Therefore, the deletion of basic information by the Defendants from recognizing the document management card of this case constitutes the crime of damage to public electronic records, etc. under Article 141(

3) Nevertheless, the lower court erred by misapprehending the legal principles as to electronic records used by public offices, which affected the conclusion of the judgment, on the grounds stated in its reasoning on different premises, and the grounds of appeal by the prosecutor pointing this out are with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Park Sang-ok

Justices Noh Jeong-chul

Justices Kim In-bok