【Preliminary Crime against Defendant 1 and Defendant 3

Specific Economic Crimes Act (hereinafter "Special Economic Crimes Act") for 2

Violation of the Act on Aggravated Punishment, etc. (Embezzlement), Defendant 2, and criminal defendant

occupational embezzlement of the name of some preliminary offence against 10,

Part of the conjunctive crime against Defendant 2

part of the recognition against the defendant, defendant 2 and defendant 3

【Occupational Embezzlement】

(b) A perjury;

C. Violation of the National Intelligence Service Act (Partial change to Defendant 9)

crime that has been compelled to be constituted)

(d) Interference with business;

E. Violation of the Labor Union and Labor Relations Adjustment Act

(f) occupational embezzlement;

(g) Offering of bribe;

(h) Preparation of false official documents;

(i) Exercising any false official document;

(j) Violation of Information and Communications Network Utilization Promotion Act;

(Defamation)

Appellant 5, Defendant 7, Defendant 8, Defendant 9, Defendant 10, and Defendant 11

b)

Defendant 1, Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 10, Defendant 11, Prosecutor’s appeal against Defendant 1, Defendant 3, Defendant 4, Defendant 5, Defendant 10, and Defendant 11, and all remaining appeals against Defendant 2, Defendant 7, and Defendant 9 are dismissed.

The public prosecution against Defendant 8 is dismissed.

1. Judgment on Defendant 1’s grounds of appeal

A. Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss by National Treasury, etc.) (hereinafter "Special Crimes Aggravated Punishment Act").

1) The court of final appeal shall examine only the propriety of the final appeal within the scope of the grounds for final appeal, as a subsequent review of the final appeal judgment, which was subject to a review by the appellate court. As a result, the grounds other than the grounds for final appeal asserted by the appellant as the grounds for final appeal, or the matters determined by the appellate court as subject to a review by its authority, cannot be considered as the grounds for final appeal, and further inclusion of the grounds in the scope of the final appeal is contrary to the ex post facto review structure of the final appeal (see Supreme Court en banc Decision 2017Do1

2) Defendant 1’s grounds of appeal are not the grounds of appeal, or the lower court determined ex officio as the subject of judgment in this part of the facts charged against Defendant 1. Accordingly, Defendant 1’s grounds of appeal are not legitimate grounds of appeal.

B. The perjury part

Defendant 1 appealed against the entire judgment of the court below, but did not state the grounds for objection in the petition of appeal or the appellate brief regarding the perjury portion.

2. Judgment on Defendant 2’s grounds of appeal

A. Whether the authority to prosecute has been abused due to separate indictment

1) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives substantial disadvantage to a defendant, such exercise of the authority to institute a public prosecution may be denied by deeming that the abuse of the authority to institute a public prosecution is an abuse of the authority to institute a public prosecution. However, arbitrary exercise of the authority to institute a public prosecution ought to be limited to only a mere negligence in the course of performing his/her duties, and at least dolusiums are not sufficient (see, e.g., Supreme Court Decision 2018Do104

2) On the grounds indicated in its reasoning, the lower court determined that, even if the indictment against Defendant 2 was filed by dividing it into nine cases, such indictment does not constitute a case where the right to prosecution was significantly deviated from that of arbitrary exercise of right to prosecution.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on the abuse of authority to prosecute.

B. Whether legal principles concerning the meaning of a person under subparagraph 1 of Article 2 of the Act on Liability of Accounting Personnel, Etc. (hereinafter referred to as the "Act on Liability of Accounting Personnel").

The lower court determined that Defendant 2 constituted “a person who deals with the State’s accounting affairs” under Article 2 subparag. 1(k) of the Act on Liability for Accounting Personnel and other persons who deal with the State’s accounting affairs on the grounds as stated in its reasoning in each part of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) (limited to the part of the crime) against Defendant 2, and that the above Defendant satisfied the requirements for

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the meaning of a person under Article 2 subparag. 1 of the Act on Liability of Accounting Personnel

C. The part on violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) relating to the online activities of the NIS (hereinafter referred to as “the psychological leaflet”) under the control of the National Intelligence Service (hereinafter referred to as the “National Assembly Secretariat”) (name 1 omitted)

For the reasons indicated in its holding, the lower court convicted Defendant 2 of this part of the facts charged, on the premise that the total amount of the budget paid as the activity expenses of so-called “(name 2 omitted)” related to the psychological leaflets (name 1 omitted) falls under the amount of the national treasury’s loss.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the calculation of the amount of loss by the National Treasury

(d) Whether the recognition of reduction is illegal

For the reasons indicated in its holding, the lower court convicted Defendant 2 of occupational embezzlement on the ground of the reduction in the part of violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.) relating to Defendant 2’s activities.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on prohibition of analogical interpretation, which is the derived principle of no crime without the law

E. Part on the violation of the National Intelligence Service Act due to political involvement through a conference of 000000, an incorporated foundation (hereinafter “OO”)

For the reasons indicated in its reasoning, the lower court found Defendant 2 guilty of this part of the facts charged against Defendant 2 on the ground that Defendant 2 engaged in an act by ○○○○○.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the meaning of “participation in political activities” as prescribed in Article 9 of the former National Intelligence Service Act (amended by Act No. 12266, Jan. 14, 2014).

F. Part on the violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) relating to the activities of 000

For the reasons indicated in its holding, the lower court convicted Defendant 2 of this part of the facts charged on the premise that the total amount of the budget paid for the ○○ activities constituted the amount of the national treasury’s loss.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the calculation of the amount of loss by the National Treasury

G. Part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to the delivery of KRW 200 million to Nonindicted Party 1 by Cheongju (Name 2 omitted)

For the reasons indicated in its holding, the lower court found Defendant 2 guilty of this part of the facts charged, on the ground that, in collusion with the former president of Nonindicted Party 2, Defendant 2 used KRW 200 million of the special project cost, which is strictly limited within the scope of the NIS’s duty, for the purchase of souvenirs beyond the scope of the NIS’

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the legal nature of the State subsidy special project cost and the intent of

H. The portion of occupational embezzlement due to the delivery of KRW 50 million to Nonindicted 3, Cheongdae (name 3 omitted)

For the reasons indicated in its holding, the lower court convicted Defendant 2 of this part of the facts charged, premised on Defendant 2’s delivery of KRW 50 million to Cheongdae (name 3 omitted) Nonindicted 3.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

I. The part concerning the offering of bribe and the violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) due to the provision of KRW 100 million to Nonindicted 4 by a National Assembly member

1) On the grounds indicated in its reasoning, the lower court determined that this part of the indictment did not constitute a case where the right of prosecution was significantly deviates from that of arbitrary exercise of the right of prosecution.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on abuse of public prosecution rights.

2) On the grounds indicated in its reasoning, the lower court convicted Defendant 2 of this part of the facts charged on the premise that Defendant 2 provided KRW 100 million to Nonindicted 4 members of the National Assembly.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(j) Violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) and offering of bribe due to the presidential non-indicted 2's delivery of USD 100,000 to the president

The lower court found the Defendant guilty of this part of the facts charged on the grounds indicated in its reasoning.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(k) The portion on the preparation of false official document and the display of false official document

The lower court found the Defendant guilty of this part of the facts charged (excluding the part on acquittal in the grounds) on the grounds indicated in its reasoning.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on co-principal.

(c) Violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and the part concerning occupational embezzlement due to the misappropriation of funds related to the most business entity;

1) Article 7 of the Management of the National Funds Act provides that "the head of a central government agency shall transfer income under his/her jurisdiction to the National Treasury and shall not directly use such income, except as otherwise expressly provided for in other Acts." This may be evaluated as more concrete in terms of the budget totalism declared in Article 17 of the National Finance Act. Meanwhile, Article 2 subparagraph 2 of the Management of the National Funds Act provides that "revenue shall be paid or paid to the Fund as revenue under subparagraph 1 (a) of the same Article, such as tax, and subparagraph 1 (a) of the same Article provides that "national funds shall be paid as revenue or paid to the Fund" in accordance with statutes or contracts, etc., and it shall be prescribed by Presidential Decree as having the same value as cash and cash paid to the Fund (referring to funds under Article 3 (1) 2) (hereinafter referred to as "cash, etc."). According to Articles 5 and 6 of the same Act, revenue shall be collected or received as prescribed by statutes, and the head of a central government agency shall manage the affairs related to the collection and receipt of revenue.

In full view of the language and purport of the above statutory provisions, it is reasonable to view that the term “income under the jurisdiction prohibited by direct use” under Article 7 of the National Funds Management Act refers to the cash, etc. managed by the head of a central government agency through the collection and collection procedure as it was paid to the State in accordance with statutes or contracts

2) For the reasons indicated in its reasoning, the lower court: (a) the money (hereinafter referred to as “the instant virtual money”) which the most company established, managed, and operated by the NIS, was managed under the name of the profits from the lending business (hereinafter referred to as “proceeds from consultation”) and the “drawing money received from the NIS” (hereinafter referred to as “drawing money”) constitutes both the “drawing income” under which direct use is prohibited pursuant to Article 7 of the Management of the National Funds Act.

After finding that Defendant 2 used the funds relating to the most business entity, which is prohibited from direct use, for a business that does not fall under the scope of the NIS’s duties, it was found guilty of this part of the facts charged.

3) We examine the reasoning of the lower judgment in light of the aforementioned legal doctrine.

A) First of all, the profits from the consultation among the funds related to the most business entity of the NIS are the revenue that the NIS is actually punished in accordance with the lease contract, etc. and is the revenue under Article 7 of the Management of the National Funds Act.

B) Next, considering all of the health team, the process of the establishment and operation of the headquarters, the relationship between the headquarters and the headquarters, the actual management entity of the headquarters, and the method of managing the headquarters of the instant funds, it is reasonable to view that the instant funds are merely those different only from the formal entity or form of the custody, while maintaining the nature of the budget allocated to the NIS. Thus, it is difficult to regard the instant funds as the “annual funds” that should be incorporated into the “revenue” pursuant to Article 29(2) of the National Funds Management Act. Therefore, it is difficult to accept the judgment of the court below that the instant funds constitute the “competent revenue” under Article 7 of the National Funds Management Act.

However, even if the provisional revenue of this case does not correspond to the "competent revenue prohibited from direct use", the use of the provisional revenue of this case, which has the nature as the budget of the NIS for a purpose beyond the scope of the duties of the NIS, still constitutes a violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) and an occupational embezzlement crime. Examining the reasoning of the judgment below in light of the relevant legal principles and evidence duly admitted, the judgment of the court below which recognized Defendant 2's intention of unlawful acquisition on the premise that each business promoted by Defendant 2 in relation to this part of the facts charged was out of the scope

4) Ultimately, there is some inappropriate part of the lower court’s reasoning as to whether the instant provisional revenue constitutes “revenue under Article 7 of the Management of National Funds Act”. However, the lower court’s conclusion that found the Defendant guilty of this part of the facts charged is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on intent

(m) The part on violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) due to financial assistance related to the third labor union

For the reasons indicated in its reasoning, the lower court found Defendant 2 guilty of this part of the facts charged against Defendant 2, on the ground that Defendant 2 instructed financial assistance related to the third labor union.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(n) The remainder

Defendant 2 appealed to the entire guilty portion of the lower judgment, but did not state the grounds of objection in the petition of appeal or the appellate brief on the remainder.

3. Judgment on Defendant 3’s grounds of appeal

For the reasons indicated in its holding, the lower court affirmed the first instance judgment convicting Defendant 3 of the violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and the part concerning occupational embezzlement related to the activities, which are offline of the psychological leaflet, among the facts charged against Defendant 3.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding criminal intent and functional control over a co-principal, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations.

4. Judgment on Defendant 4’s grounds of appeal

Of Defendant 4’s grounds of appeal, the remainder of Defendant 4’s grounds of appeal, excluding the allegation of unfair sentencing, shall not be deemed a legitimate ground of appeal, since they were neither asserted as grounds of appeal nor considered as subject to

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. In this case where Defendant 4 was sentenced to a more minor sentence, the argument to the effect that the punishment is too unreasonable is not a legitimate

5. Judgment on Defendant 5’s appeal

Defendant 5 did not submit the appellate brief within the deadline for submitting the appellate brief, and did not state the grounds for the appeal in the petition of appeal.

6. Judgment on Defendant 6’s ground of appeal

For the reasons indicated in its reasoning, the lower court maintained the first instance judgment that convicted Defendant 6 of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of

7. Judgment on Defendant 7’s ground of appeal

A. The part on the violation of the National Intelligence Service Act due to the political involvement in the field politics, such as Nonindicted 5 and Nonindicted 6, regarding universal welfare debate and the assertion of the half-value registration fee in the field of camping.

For the reasons indicated in its holding, the lower court found Defendant 7 guilty of this part of the facts charged, on the ground that Defendant 7’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the requirements for the establishment of

B. The portion of occupational embezzlement due to reimbursement of expenses for public opinion poll

For the reasons indicated in its holding, the lower court found Defendant 7 guilty of this part of the facts charged, on the ground that Defendant 7’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the requirements for the establishment of

C. The part on the violation of the NISA due to Nonindicted 7’s political involvement in the documents related to “the actual state of the corrective operation and response direction for the Seoul Metropolitan City market” in relation to the documents

For the reasons indicated in its holding, the lower court found Defendant 7 guilty of this part of the facts charged, on the ground that Defendant 7’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the requirements for the establishment of

D. Part on the violation of the National Intelligence Service Act due to Nonindicted 8’s political involvement in the check on political activities

For the reasons indicated in its holding, the lower court convicted Defendant 7 of this part of the facts charged by deeming that Defendant 7’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the requirements for the establishment of

E. Violation of the National Intelligence Service Act due to the act of political involvement through ○○○○

For the reasons indicated in its holding, the lower court convicted Defendant 7 of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on prohibition of engaging in political activities and requirements for establishment of a

F. Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding the ○○○○ activities

For the reasons indicated in its holding, the lower court convicted Defendant 7 of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the calculation of co-principals and the

G. Whether the method of examining sentencing and determining sentencing is unlawful

1) Article 51 of the Criminal Act, which provides for the conditions of sentencing, is interpreted to be subject to the discretion of the court concerning the determination of punishment widely. Thus, in a case where the court of final appeal rendered a death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years pursuant to Article 383 subparag. 4 of the Criminal Procedure Act, unless it adjudicates on the grounds of appeal as to the propriety of the determination of punishment, the argument that the court of fact-finding misunderstandings the facts on the basis of the sentencing or did not properly examine the circumstances that are the conditions of the sentencing cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decisions 87Do1410, Jan. 19, 198; 90Do1940, Oct. 26, 199; 20208358, Sept. 3, 2020).

2) The allegation in the grounds of appeal on this part is merely a misunderstanding of facts about the basis of sentencing, and thus, cannot be a legitimate ground of appeal in this case where Defendant 7 was sentenced to imprisonment with labor for a period of two years and six months. The Supreme Court decision cited in the grounds of appeal in the grounds of appeal differs from this case, and thus, it is inappropriate to

8. Determination on the public prosecution against Defendant 8

According to the records, Defendant 8's death on December 11, 2020 after the filing of the instant appeal is recognized. Thus, Defendant 8's public prosecution against Defendant 8 is dismissed pursuant to Articles 382 and 328(1)2 of the Criminal Procedure Act.

9. Judgment on Defendant 9’s grounds of appeal

A. The part on the violation of the National Intelligence Service Act due to the political involvement in the field politics, such as Nonindicted 5 and Nonindicted 6, regarding universal welfare debate and the assertion of the half-value registration fee in the field of camping.

For the reasons indicated in its holding, the lower court convicted Defendant 9 of this part of the facts charged, on the ground that Defendant 9’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the establishment of a public recruitment relationship without exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. The part on the violation of the NISA due to Nonindicted 7’s political involvement in the documents related to “the actual state of the corrective operation and response direction for the Seoul Metropolitan City market” in relation to the documents

For the reasons indicated in its holding, the lower court convicted Defendant 9 of this part of the facts charged, on the ground that Defendant 9’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

C. The part on violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) due to financial assistance related to the 3 labor union

For the reasons indicated in its holding, the lower court convicted Defendant 9 of this part of the facts charged, on the ground that Defendant 9’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment

10. Determination on Defendant 10’s grounds of appeal

For the reasons indicated in its holding, the lower court convicted Defendant 10 of the primary charge (excluding the part on acquittal in the grounds).

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the requirements for establishment of

11. Determination on Defendant 11’s grounds of appeal

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that found Defendant 11 guilty of primary charges.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment that affected the conclusion of the judgment.

12. Judgment on the grounds of appeal by the prosecutor

(a) Whether the first instance court measure on Amendments to Bill of Indictment is legitimate;

1) According to the records, the following circumstances are revealed.

A) On October 7, 2017, a prosecutor indicted Defendant 1 as a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) (Seoul Central District Court 2017Dahap1008), and indicted Defendant 2 and Defendant 3 as a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) (Seoul Central District Court 2017Dahap1008) relating to perjury and the online activities of the psychological leaflets on December 7, 2017 (Seoul Central District Court 2017Dahap1241).

B) On December 19, 2017, in the Seoul Central District Court case No. 2017Kahap1008, the prosecutor applied for the amendment of the indictment with respect to Defendant 1’s activities related to Defendant 1’s off-line of the deliberation leaflet in the facts charged of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.). The above court permitted the amendment of the indictment on the same day.

C) On December 31, 2018, the prosecutor filed an application for amendments to the indictment with respect to Defendant 1, Defendant 2, and Defendant 3 on the charge of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) on the charge of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.). The above court permitted amendments to the indictment on September 23, 2019, which added the budget useful crimes related to other pending issues, to the offline activities.

D) In rendering the judgment of the court of first instance on February 7, 2020, the above court revoked the decision to permit each amendment of the indictment on the ground that the crime of misappropriation of the budget related to the activities of the hearing leaflet was committed on the grounds that the crime of misappropriation of the budget related to the activities of the hearing leaflet was committed only among the pending issues, and is in the relation of a single comprehensive crime, and the crime of misappropriation of budget related to the online activities of the hearing leaflet is also in the relation of substantive concurrent crimes.

2) Examining the above circumstances in light of the relevant legal principles, we affirm the judgment of the court of first instance that revoked the decision to permit changes in indictment was justifiable. Contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the number of crimes,

(b) Whether the collection has been omitted;

1) The lower court, on the ground that it was not proven that the interests of the above Defendants were substantially attributed to the crime on the grounds as indicated in its reasoning, on the grounds that the violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and the part on occupational embezzlement in relation to Defendant 1, Defendant 2, and Defendant 3’s psychological leaflets on online and offline, did not impose an additional collection equivalent to the amount of the national

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on additional collection.

2) The lower court, on the ground that the part on the part of Defendant 2’s violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) relating to Defendant 2’s ○○○○○ activities, did not prove that the interest of the above Defendant was substantially attributed to the said crime on the grounds as indicated in its reasoning, and did not additionally impose

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on additional collection, thereby adversely affecting the judgment.

3) The lower court, on the ground that the part of the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to Defendant 2, Defendant 9, Defendant 10, and Defendant 11’s financial assistance related to the third labor union, did not prove that the above Defendants did not have proved that the interests of the crime actually accrue, on the grounds as indicated in its reasoning, did not additionally collect the amount equivalent

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on additional collection.

C. The part on the violation of the National Intelligence Service Act due to Defendant 2, Defendant 4’s production team, “(the program name 1 omitted),” “(the program name 2 omitted),” and abuse of authority against Nonindicted 9 and Nonindicted 10

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of violating the National Intelligence Service Act due to abuse of authority, thereby adversely affecting the judgment.

D. The part regarding interference with each of the business of Defendant 2, Defendant 4 with Nonindicted 9, Nonindicted 10, Nonindicted 11, and Nonindicted 12

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted this part of the facts charged.

Examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of interference with business, thereby adversely affecting the judgment

E. Defendant 5

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted Defendant 5 on the ground that it is difficult for Defendant 5 to recognize the functional control over the part of the crime after his resignation at the ○○○○○○○○○○○○○○○○○○○○○ Chairman

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the renunciation of conspiracy and functional control in the blanket crime, thereby adversely affecting the judgment.

F. The part on Defendant 2’s budget diversion related to Defendant 2’s ○○ activities

For the reasons indicated in its holding, the lower court acquitted Defendant 2 of all charges on the grounds that it is difficult for Defendant 2 to recognize the functional control of the above Defendant’s act on the part of the crime after resignation from the president of the State Agency, among the violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.) and the ancillary charges (Embezzlement).

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the renunciation of conspiracy and functional control in the blanket crime, thereby adversely affecting the judgment.

G. The part concerning the violation of the National Intelligence Service Act by abuse of authority against Defendant 2, Defendant 7, and Defendant 9, excluding the part concerning the abuse of authority against Nonindicted 14 related to Nonindicted 13 and the part concerning the abuse of authority against Nonindicted 15 and Nonindicted 7 to the employees of the NIS related to Nonindicted 2, Defendant 7, and Defendant 9

1) A) The crime of abusing authority and obstructing another’s exercise of rights (hereinafter “the crime of abusing authority and obstructing another’s exercise of rights”) is established when a public official consigned to exercise ex officio and specifically an ex officio exercise of official authority with respect to matters belonging to general official authority and authority. The term “the abuse of authority” in this context refers to cases where a public official unlawfully and wrongfully exercises his/her authority with respect to matters belonging to general official authority and authority, i.e., when a public official formally and externally exercises his/her authority, or where he/she appears to perform an act other than legitimate authority. In order for a public official to be deemed a matter belonging to the general official’s authority and authority, legal basis related thereto is necessary. Although there is no express provision, the legal basis is not necessarily required, but rather, it is interpreted as falling under the official’s authority and authority. In cases where it is deemed sufficient to cause the other party to perform a work or interfere with his/her rights, it is also included in the general official authority and authority stated in the crime of abusing authority in the crime of abusing authority.

"When a public official has another person perform an act without any obligation" in the crime of abuse of authority means when a public official abused his/her official authority to cause another person to perform an act without any obligation under the law. Therefore, even if a public official allows a person in charge of business to perform a fact-finding act assisting the performance of his/her official authority with respect to matters belonging to his/her official authority, this is merely a result of the performance of his/her official’s duties, and thus, it cannot be deemed a case where a public official does not perform an obligation in principle. However, if the standards and procedures for performance of official duties are specifically stated in the statutes and the standards and procedures for the performance of official duties are granted to a person in charge of business and are given a unique authority and role to participate in the procedures for application of the standards and procedures for performance of official duties, it constitutes "where a person in charge of business has assisted another person to perform an act without any obligation" (see, e.g., Supreme Court Decision 201Do13766, Feb. 10, 2011).

B) The NIS, as a direct subordinate organization of the President, plays a role in supporting the presidential administration (Article 2 of the National Intelligence Service Act). The duties of the NIS, such as collecting, preparing, and distributing information that it performs as an intelligence agency, are difficult to be subject to surveillance or check by other national agencies due to the need for maintaining security and the unique characteristics of the method of performing such duties, etc. In addition, the NIS needs to maintain its internal and strict direction system to ensure the smooth performance of its duties. In addition, the NIS has the authority to investigate crimes, etc. prescribed by the National Security Act, which may involve the exercise of compulsory power against each individual (wholly amended by Act No. 17646, Dec. 15, 2020) prior to the enforcement of the current National Intelligence Service Act (wholly amended by Act No. 17646, Dec. 15, 2020). If it is abused due to the legal status and influence of the NIS, the de facto nature of duties, and the method of performing duties, etc., it infringes fundamental rights of the people throughout political information and development of national security.

Upon the amendment of the former National Security Planning Act (amended by the National Intelligence Service Act on January 21, 1999) by Act No. 4708, Jan. 5, 1994, Article 11(1) prohibiting the abuse of authority by the head, Deputy Director, and other employees of the National Security Planning Department (Article 11(1)) of the said Act and a provision punishing the abuse of authority by the head, Deputy Director, and other employees of the National Security Planning Department (Article 19(1) of the said Act) may also be deemed as an anti-sexual action based on such historical experience in the event of a violation of the said provision. In light of the legislative history of the said provision that maintains its content up to the current National Intelligence Service Act, the purport of the provision on punishment for the abuse of authority under the National Intelligence Service Act is to prevent any violation of the authority and rights of other institutions, organizations, or citizens by abusing the authority assigned to him.

Therefore, the establishment of a crime of violation of the National Intelligence Service Act due to abuse of authority should be determined by comprehensively taking into account not only the legal principles applied to the crime of abuse of authority but also the legislative process and purport of the above separate penal provision, the legal status and influence of the NIS, the peculiarity of the duties and the method of performing such duties in charge of the NIS, the strict direction system of the NIS itself.

2) The lower court acquitted all of the charges on the following grounds.

A) As to Nonindicted 1’s abuse of authority in this part of the facts charged, Nonindicted 2 and Nonindicted 7’s act of Nonindicted 1 and Nonindicted 2’s order for Nonindicted 2 to look at the trends of the head of the local government from the right of view to the government policy, etc., and to make a report thereon (related to the violation of the NIS’s Act due to the abuse of authority against Nonindicted 2 and Nonindicted 7), Nonindicted 2, Defendant 7, and Defendant 9’s employees to gather information on political rights, such as right to exit, etc. regarding various elections, and to prepare a logic to respond to Nonindicted 2’s order for Nonindicted 3 to take advantage of such order (the part concerning Nonindicted 2’s order to take measures for election) by Nonindicted 1 and Nonindicted 2’s order (the part concerning Nonindicted 2’s order to remove Nonindicted 3’s order from Nonindicted 1 and Nonindicted 3’s order to take advantage of their respective political authority).

B) In this part of the facts charged, the NIS employees specified as the party to abuse of authority are co-offenders who participated in the political involvement of Defendants 2, 7, and 9, and it is difficult to regard them as victims of a crime of violating the NISA due to abuse of authority (hereinafter “the second judgment”).

C) Even if each of the instant orders belongs to the general duties and authority of the NIS personnel, Defendant 2 does not constitute a case where: (a) as to the collection, preparation, and distribution of domestic security information that belongs to the duties of the NIS personnel, Defendant 7 and Defendant 9 assist the NIS personnel, who are working-level personnel, in performing their duties; and (b) the standards and procedures for the performance of duties to be observed are specifically stated in the statutes; and (c) the standards and procedures for the performance of duties to be observed by the working-level personnel are specifically stipulated in the statutes; and (d) their own authority and roles to be involved in the procedures are granted to them, they do not constitute a case where they assist the performance of duties in violation of such standards and procedures. Ultimately, each of the instant orders does not constitute “when they cause them to perform an act without any obligation” (hereinafter referred to as “decision 3”).

3) However, it is difficult to accept such determination by the lower court for the following reasons.

A) First, examining the following circumstances revealed by the reasoning of the lower judgment and the evidence duly admitted, in light of the legal doctrine as seen earlier, each of the instant orders was deemed to have satisfied the form of exercising official authority on matters pertaining to the general authority and authority of the actors in a formal and external manner.

(1) It is reasonable to view that the actors of each of the instant instructions have a general authority to have the other party conduct an unobligatory act upon abuse.

Pursuant to Article 3(1)1 and 3(1)3 of the former National Intelligence Service Act (amended by Act No. 11104, Nov. 22, 2011; Act No. 12266, Jan. 14, 2014; hereinafter referred to as the "former National Intelligence Service Act"), the NIS shall perform its duties such as collecting, preparing and distributing domestic security information (such as anti-government uniforms, counter-terrorisms and international criminal organizations), and investigation into crimes under the National Security Act. Defendant 2, the president of the NIS, has the authority to take charge of the duties of the NIS and direct and supervise its employees (Article 7(2) of the former National Intelligence Service Act); Defendant 7 and Defendant 9, the title of the title of the title of the title of the title of the title of the title of the NIS, who assist the president of the NIS, have the authority to instruct and supervise the employees of the NIS in charge of the above duties; Defendant 2, the title of the title of the title of the title of the title of the title of the National Security Service.

Considering the duty to obey an official order of his superior in the course of performing his duties and the strict command system of the NIS, the authority and authority of the above Defendants and their accomplices may be deemed sufficient to allow the employees of the NIS to perform an act without any duty if they are abused for unjust purposes, etc., even if the said Defendants and their accomplices do not legally enforce force.

(2) It is reasonable to deem that each of the instant instructions pertains to matters falling under the general duties and authority of the NIS staff, who is a nominal actor.

(A) Defendant 2, while holding office as the president of the NIS, stipulated that he is against the government policy at a meeting of executive officers, etc., or that the non-cooperative person and organization in the performance of the state policy are "pro-North Korea forces (pro-North Korea forces) or those having their influence (hereinafter referred to as "pro-North Korea forces, etc."), and ordered Defendant 2 to take active measures to check and check them.

Each of the instant instructions was embodied in the information collection or check-up direction of the head of the NIS. In other words, Defendant 2 et al. concluded that the head of the NIS’s direction is a person suspected of having been suspected of having a pro-North Korean force, etc., such as the head of the camping district local government, Nonindicted 13, Nonindicted 8, and Nonindicted 22, etc., and on the pretext of taking the check-up measures against them, it can be deemed that the head of the NIS’s instruction was ordered to collect relevant information and prepare or implement countermeasures against the said person.

The above title was merely a surface of the NIS's Direction Division, although it was merely a surface.

Even when determining whether each of the instant instructions can be seen as an ex officio exercise of that actor’s authority in a formal and external manner, consideration may be given to the determination.

(B) At the same time, North Korea also has the nature of an anti-state organization that takes measures to rescue our liberal democracy system by taking advantage of the dialogue and cooperation for the peaceful unification of the fatherland (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008). Considering the status of North Korea and the circumstances where the above NIS commander command each of the instant orders were carried out for the sake of the instructions of this case, each of the instant orders is formally and externally ordered to check the forces leading anti-government organizations, and thus, it can be deemed that Defendant 2 et al. exercised the authority to collect domestic security information on the anti-government, counter-government, counter-government, and anti-government activities against the violation of the National Security Act.

(3) It is reasonable to deem that each of the instant instructions satisfied the external appearance of the NIS’s instructions on the performance of duties.

(A) Each of the instant orders was issued to the person in charge of practice through the official chain of command of the NIS, which is based on the position of the president of the NIS.

The head of the NIS, who implemented the instant direction, could not be specifically aware of what intention or purpose the Head of the NIS directed him/her to collect, analyze, and establish strategies. Even if the head of the NIS could have suspected of the intent or purpose of participating in the politics of the NIS at the time of receiving the instant instruction, such circumstance alone does not necessarily lead to the change in the appearance of each of the instant instructions.

(B) Article 3(1)1 of the former National Intelligence Service Act and Article 2 subparag. 2 of the former Regulations on Planning and Coordination of Information and Security Services (amended by Presidential Decree No. 25751, Nov. 19, 2014; hereinafter referred to as the “former Regulations on Planning and Coordination of Information and Security Services”) do not clearly limit the scope of “subject to collection of information” only for “sectors of information to be handled by the NIS (public service, counter-government uniforms, counter-terrorisms, and international criminal organizations)” and “purposes to deal with information (the purpose of ensuring national security from acting in danger of anti-state activities, etc.). In addition, at the stage of collecting information, it is difficult to clearly determine whether the relevant information constitutes security information, and the collection of security information can be completed by combining various information collected at different times.

The NIS has been engaged in broad information collection activities in various domestic fields, regardless of specific suspicions, such as the uniforms of government, etc., prior to the occurrence of the instant case, on the grounds of the abstract and comprehensive basis of the scope of duties as above, and the peculiarity of security duties, etc., on the grounds of the existence of the abstract and comprehensive basis of the foregoing scope of duties and the characteristics of security duties. Aside from the legitimacy and feasibility of the foregoing activities, the NIS has been actually engaged in the collection of domestic security information in such a way as well as the recognition of the scope of duties of the NIS’s working-level officers. Thus, each of the instant instructions can be considered when determining whether the external appearance of the exercise of authority is determined.

(4) It is difficult to readily conclude that each of the instant instructions constitutes an act of political involvement, and even if Defendant 2, etc. had the objective of political participation at the time of performing each of the instant instructions, it does not necessarily mean that the said instructions did not have an ex officio exercise based on the above purpose, etc., insofar as they fall under the performance of duties.

The contents and methods of each order of this case alone are as follows: "Act supporting or obstructing the formation or joining of a political party or political organization" under each subparagraph of Article 9 (2) of the former National Intelligence Service Act (Article 9 (2) of the National Intelligence Service Act; "Act disseminating opinions or facts that praise or slander any specific political party or political person by taking advantage of his position in supporting or opposing such political party or political person; "Act disseminating opinions or facts that praise or slander any specific political party or political person"; "Act supporting or obstructing the collection of donations on behalf of any specific political party or political person; act using or allowing the State, local government or government-invested institution (or public institution under the Act on the Management of Public Institutions) to use funds of the State, local government or government-invested institution (Article 9 (2) of the former National Intelligence Service Act; Act No. 4); act of demanding an election campaign for a specific political party or specific person; act of demanding his/her employees or other public officials to do any of the acts referred to in subparagraphs 1 through 4; or act of giving compensation or disadvantage in relation to such acts.

The issue of whether each of the instant instructions constitutes a "act of participating in the above "political activities" or an act of preliminary preparation therefor is a matter that can only be seen by considering the circumstances, including not only the objective content of the relevant instructions, but also the status of a person subject to collection or check of information and the details of past activities in the relevant instructions.

The NIS employees in receipt of each of the instant instructions were in the position to follow the instructions, barring any special circumstances, if such instructions are formally and externally when performing their duties. Although Defendant 2, etc. falls under the scope of duties in a formal and external manner, where Defendant 2, etc. orders the NIS employees to engage in acts beyond the scope of authority with the purpose of substantially participating in political activities, it shall be materials to determine whether such hidden purposes, etc. of Defendant 2, etc. constitute abuse of authority, and it shall not be deemed that there was no exercise of authority based on such findings.

B) As to the second judgment, it is reasonable to view that the employees of the NIS who complied with each of the instant orders is the other party to abuse of authority. The reasons are as follows.

(1) Since "the person, who is the object of the violation of the National Intelligence Service Act due to abuse of authority, refers to all others other than the offender and the accomplice, not only subordinate public officials of the offender, but also other public officials may be included in such a violation. However, as seen earlier, since the authority of each of the instant instructions is sufficient to allow the other party to perform an act for which the latter does not have any duty, the personnel in charge of the NIS, who received each of the instant orders, may become the counter-party to the abuse of authority.

(2) A co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through a functional control based on the intent of co-processing and the common intent. While a co-principal may be held liable for a crime even if he/she did not directly share part of the constituent elements among the co-offenders, in full view of his/her position, role, control or influence over the progress of the crime, etc. in the entire crime, it should be recognized that he/she has a functional control through an essential contribution to the crime, rather than a mere conspiracy (see, e.g., Supreme Court Decision 2007Do4702, Oct. 26, 2007). However, even if a person in charge of the state affairs who has complied with the orders of each of the above cases did not obey the direction of the command of the NIS, it is difficult to view that each of the above co-offender did not constitute a crime of abuse of authority and thus, he/she did not constitute an abuse of authority.

C) Examining the following circumstances revealed through the reasoning of the lower judgment and the evidence duly admitted and investigated, in light of the legal doctrine as seen earlier, it is reasonable to deem that Defendant 2, etc. directly performed the instructions through each of the instant instructions constituted a case where the said executive officer had a person in charge of the NIS, who directly performed the instructions, do not have any legal obligation, and it is not merely a case where the said executive officer had the person in charge of the NIS perform a fact-finding act assisting the performance of duties.

(1) At the time of each of the instant instructions, the standards and procedures for performing duties to be followed by the NIS practitioners were stipulated in statutes.

Article 3(1)1 of the former National Intelligence Service Act and Article 2 subparag. 2 of the former Regulations on Planning and Coordination of Information and Security Services provide that “All public officials shall observe Acts and subordinate statutes and perform their duties in good faith.” Article 56 of the State Public Officials Act provides that “All public officials shall perform their duties in kind and fairly as servants of all citizens.” According to Article 3(1)1 of the former National Intelligence Service Act and Article 3 subparag. 2 of the former Regulations on Planning and Coordination of Information and Security Services, the staff of the NIS shall only deal with domestic information on “the national security”, “the anti-espionage or other anti-state activity forces and their subordinate members to ensure the national security from doing harm to the country” (Article 11), and “the government uniform, anti-government uniform, counter-terrorism, and international criminal organization” (Article 17). Article 56 of the former National Public Officials Act prohibits the delegation of the NIS’s duties by Presidential Decree No. 2101, Mar. 14, 201).

Such provisions can be deemed to stipulate the standards and procedures for the performance of duties to be followed by the personnel in charge of the NIS practice.

(2) The NIS also applied the standards for performance of duties to the personnel in charge of the NIS and was given a unique authority and role to participate in the procedure, and the performance of each of the instant instructions cannot be deemed as merely an act of supporting the performance of duties by the NIS commander.

Considering that the duties of the NIS, such as the contents of the standards and procedures for performing duties to be followed by those in charge of the NISs, and the collection, compilation, and distribution of domestic security information, and investigation into crimes provided for in the National Security Act, may infringe on the fundamental rights of the people by itself, it is reasonable to deem that the performance of each of the orders in this case was given a unique authority and role to apply the standards for performing duties and to participate in the procedures by properly selecting the subjects and methods of collection, analysis, etc. of information to be performed by each of them. In addition, in light of the progress of the performance of each of the orders in this case, it cannot be deemed that the performance is merely a fact assisting the performance of duties by the NISs.

(3) The actors of each of the instant orders had the executive officers in charge of the NIS perform their duties beyond the scope of legitimate duties in violation of the standards for performance of duties.

The actors of each of the orders of this case carried out the collection, analysis, and preparation of countermeasures against information irrelevant to national security in violation of the duty of political neutrality, duty not to infringe on the privacy and freedom of the people, duty not to observe the law, duty not to perform duties fairly, and duty not to perform duties.

Furthermore, considering the overall circumstances, such as the purpose of the NIS commander’s direction, the status of those subject to information collection, and the details of their activities, the act of the NIS staff in accordance with each of the instant orders is merely an act of formulating and implementing measures to check and pressure political parties and civilians, and the preparation of an election strategy for the ruling party, and thus, it can be deemed that such act goes beyond the legitimate scope of duties of the NIS staff under Article 3 of the former NISA.

D) Nevertheless, the lower court determined otherwise, and did not examine the remaining requirements for the establishment of the crime in this part of the facts charged, such as whether it constitutes abuse of official authority, and concluded the aforementioned facts charged as not guilty. In this regard, the lower court erred by misapprehending the legal doctrine on the violation of the National Intelligence Service Act by abusing official authority, thereby failing to exhaust all necessary deliberations. The Prosecutor’s ground of appeal assigning this error is with merit.

H. The part on the violation of each National Intelligence Service Act due to the abuse of authority by Defendants 7 and 9 against the persons related to Nonindicted 24, including Nonindicted 23, etc.

The lower court, on the grounds indicated in its reasoning, acquitted this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of violating the National Intelligence Service Act due to abuse of authority, thereby adversely affecting the judgment.

I. The part on the violation of the National Intelligence Service Act due to the attempted abuse of authority by Defendants 2, 7, and 9 against Nonindicted 25

The lower court, on the grounds indicated in its reasoning, acquitted this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of violating the National Intelligence Service Act due to abuse of authority, thereby adversely affecting the judgment.

(j) The part on the violation of the National Intelligence Service Act due to the abuse of authority against the figures belonging to the enterprise groups, enterprises, and economic organizations in relation to the funding of remuneration organizations by Defendants 2, 7, and 9

The lower court found the Defendants not guilty of this part of the facts charged on the ground that the above Defendants’ request for financial assistance to the Korean Federation of Economic Entrepreneurs, which is a private company or an economic organization, constitutes a tort using the status of staff members of the NIS, but it does not constitute an unlawful exercise of matters belonging to the general authority and authority of staff members of the NIS, i.e., abuse of authority.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the crime of violating the National Intelligence Service Act by abusing official capacity

The Supreme Court considers that a public official’s act of abusing his/her position constitutes an abuse of official authority, unlike the case where he/she illegally or unlawfully exercises his/her authority over matters falling under general official authority, is not subject to punishment for a crime of abusing official authority (see, e.g., Supreme Court Decisions 90Do2800, Dec. 27, 191; 2007Do9139, Apr. 10, 2008; 2018Do14303, Aug. 29, 2019). Interpretation of the aforementioned “illegal act of abusing his/her position” constitutes an abuse of official authority is an extended interpretation or analogical interpretation beyond the possible scope of the language and text, and thus, constitutes a violation of the principle of no punishment without the law. It is difficult, however, to deem that a public official has committed an unlawful or unreasonable act against a person who is likely to suffer disadvantage due to the exercise of his/her authority beyond his/her authority and authority, thereby impairing the freedom and rights of an individual.

C. Violation of the National Intelligence Service Act and violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation) due to Defendant 7’s political involvement in relation to the distribution of synthetic photographs

For the reasons indicated in its holding, the lower court acquitted Defendant 7 of this part of the facts charged on the ground that Defendant 7’s functional control over this part of the crime was not recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment

another. The part concerning the offering of bribe to Nonindicted 26 (Name 11 omitted) by Defendant 2

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted Defendant 2 and Nonindicted 26 of this part of the facts charged, on the ground that the receipt of KRW 120 million between Defendant 2 and Nonindicted 26 was merely an internal distribution of the money acquired by the accomplices in the crime using the NIS budget through public offering.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the

(m) The part on Defendant 2’s violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 14 with respect to Nonindicted 13’s transfer by Defendant 2

1) Where a number of acts falling under the name of the same crime continues to be conducted with a single and continuous criminal intent for a certain period and where the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime. In such a case, the statute of limitations shall run from the time the final criminal act was completed (see, e.g., Supreme Court Decision 2002Do2939, Oct. 11, 2002).

The purpose of the crime of abuse of authority under the Criminal Act is to protect the national legal interest, which is a fair exercise of State function, and also the crime of violation of the National Intelligence Service Act by abuse of authority is also the same. Therefore, with respect to the abuse of authority committed by an employee of the NIS for a certain period of time in the course of a series of performance of duties concerning the same case, even if the other party is several, a single comprehensive crime may be established. However, depending on whether the crime of abuse of authority constitutes a single and continuous crime, the completion of the statute of limitations and the scope of res judicata effect may vary depending on whether each crime of abuse of authority is concurrent crimes. Thus, the establishment of a single comprehensive crime in individual cases ought to be determined by thoroughly examining whether the crime of abuse of authority is identical to the person subject to the execution of duties, the attitude and motive of the crime, the interval between the crimes,

2) The lower court: (a) on the premise that “where multiple victims are forced to commit an act for which they did not have any obligation by abusing their official authority or interfere with the exercise of their rights, the victim’s intent is single and even if the method of crime is identical, since each victim’s legal interests are independent, they cannot be understood as an inclusive crime and should be viewed as constituting an independent crime by each victim; (b) on the part of Defendant 2’s taking advantage of Nonindicted 20, Nonindicted 21, and Nonindicted 14 as to the violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 13 due to the abuse of authority against Nonindicted 20, Nonindicted 21, and Nonindicted 14, the lower court deemed that the crime was committed independently by each victim of the above abuse of authority; and (c) on the basis of such determination of the number of crimes, the lower court determined that Nonindicted 14 was in a substantive competition relationship with Defendant 2, etc. on the ground that the National Intelligence Service was acquitted on July 13, 2010.

3) However, we cannot accept the above judgment of the court below as it is.

A) According to the record, the following facts are revealed.

(1) On September 2009, Defendant 2 instructed Nonindicted 27 (name 1 omitted) to install the so-called "(name 1 omitted)" (name 1 omitted) with the top priority in dealing with the matters under the command of the NIS as a result of the development of the pro-North Korean forces under the (name 1 omitted). Nonindicted 27 ordered Nonindicted 28 (name 12 omitted) to establish a team (name 1 omitted) and (name 2 omitted) with Nonindicted 28 (name 1 omitted) in accordance with the foregoing order.

(2) Around July 2010, Defendant 2 instructed the former meeting of the head of the department to find out Nonindicted 13’s illegal acts or irregularities, and Nonindicted 27 instructed Nonindicted 28 to the same effect at the meeting of the head of the bureau and the head of the group (title 1 omitted) around that time.

(3) Around that time, Nonindicted 28 instructed Nonindicted 14, the head of the (Name omitted 1 omitted), the head of the (name omitted), to know Nonindicted 13 closely about Nonindicted 13, and Nonindicted 14, around July 13, 2010, established a phased internal investigation plan for Nonindicted 13 through a report on the title “Nonindicted 13’s internal investigation plan for the crime of illegal activity in connection with the inter-party 13,” and reported it to Defendant 2 via Nonindicted 27.

(4) Since then, Nonindicted 28 directed Nonindicted 20 of the team leader (name omitted 2 omitted) Nonindicted 28 of the (name omitted ) team leader Nonindicted 20 of the (name omitted 13) team leader of Nonindicted 21 of the team team (name omitted 2 omitted) to inspect Nonindicted 13’s trends through Internet search results or monitoring of Nonindicted 13’s surrounding figures from April 111, 201 to May 12, 201, and prepared a report prepared in detail.

B) Examining the foregoing facts in light of the legal principles as seen earlier, since both Defendant 2 and Nonindicted 28’s act against Nonindicted 14, Nonindicted 20, and Nonindicted 21, who are his accomplices, was about the same subject of information collection as Nonindicted 13, and continued to be a single and continuous criminal intent, it is reasonable to deem that the crime of violation of the National Intelligence Service Act was committed on the ground of one’s abuse of authority by combining the above act with respect to the above act. Thus, the period of termination of the crime by the above act should be deemed to be “ around May 12, 2011, when Nonindicted 21 completed the implementation of the instructions given by Defendant 2, etc.” As such, the prosecution against Nonindicted 28, who is his accomplices on May 4, 2018, which was seven years after the statute of limitations expires (Seoul Central District Court Decision 2018Da4666), the statute of limitations against Defendant 2 was suspended (Article 253(2) of the Criminal Procedure Act), and the statute of limitations against Defendant 2165.

C) Nevertheless, the lower court determined otherwise by deeming that the statute of limitations has expired for the part on the violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 14 with respect to Nonindicted 13, upon Defendant 2’s acceptance. In so determining, the lower court erred by misapprehending the legal doctrine on the violation of the National Intelligence Service Act by abuse of authority and the blanket crime, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal pointing this out

n. The part concerning Defendant 2’s violation of the National Intelligence Service Act due to the abuse of authority against the employees of the NIS related to Nonindicted 15 and Nonindicted 7

1) The lower court acquitted all of the charges on the following grounds.

A) Defendant 2’s act of Defendant 15 and Nonindicted 7 directed to monitor the trend of Nonindicted 15 and Nonindicted 7 constitutes the exercise of authority that belongs to the general authority and authority of the president of the NIS, and Defendant 2’s act of Defendant 2, who instructed the foregoing, constitutes an unlawful act other than justifiable authority, even though it is difficult to deem that Nonindicted 15 met North Korea-related persons or that Nonindicted 7 met the executive officers of the Japan Association 29.

B) However, Defendant 2’s collection of domestic security information that belongs to the NIS’s duties and investigation into crimes provided for in the National Security Act (title 12, 13, 14, 15 omitted) is limited to the act of having Nonindicted 30, Nonindicted 31, Nonindicted 32, and Nonindicted 33, a public official in charge of the performance of his duties, do not constitute a case in which a person in charge of the performance of his duties assists the performance of his duties in violation of the standards and procedures for the performance of duties, although the standards and procedures for the performance of duties are specifically stipulated in the statutes and the person in charge of the duties are granted a unique authority and role to apply the standards and procedures for the performance of duties and participate in the procedures. Ultimately, Defendant 2 does not constitute “when a person in charge of the above NIS performs an act without any obligation”.

2) First, we examine the part on the violation of each National Intelligence Service Act due to the abuse of authority against Nonindicted 30, who is (name 16 omitted).

Examining the reasoning of the lower judgment in light of the record and relevant legal principles, it is reasonable to view that Nonindicted 30, who is a public official (name 16 omitted), was involved in the crime of abuse of authority by Defendant 2, etc. as an accomplice by assisting (name 17 omitted) Nonindicted 30, who was in charge of the most business management, etc. (name 17 omitted) and contributing to the inherent contribution to the order by accepting the instructions, such as conduct and surveillance, without any reasonable ground by Defendant 2, and delivering them to the subordinate. Therefore, there is sufficient reason to view that he/she participated in the crime of abuse of authority by Defendant 2, etc. as an accomplice. Therefore, there is some inappropriate part of the lower judgment’s reasoning, but the lower court’s conclusion that acquitted Defendant 2 of this part of the facts charged is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on

3) Next, we find it difficult to accept the judgment of the court below on each part of the violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 31, Nonindicted 32, and Nonindicted 33, (name 13, 14, and 15 omitted).

A) Examining the following circumstances revealed through the reasoning of the lower judgment and the evidence duly admitted in light of the legal doctrine as seen earlier, Defendant 2 may be deemed to have caused Nonindicted 31, Nonindicted 32, and Nonindicted 33 to perform an act without any obligation.

(1) The standards and procedures for performing duties to be followed by the above officials in charge of the NIS affairs have been specifically stipulated in the statutes.

Articles 7, 11, and 17 of the Constitution of the Republic of Korea that provide for the duty of service to the entire people of the public, the duty of equality of the people, and the duty of fair performance of the duties of public officials under Articles 56 and 59 of the State Public Officials Act; Articles 3(1)1 of the former National Intelligence Service Act; Article 2 subparag. 2 of the former Regulations on Planning and Coordination of Information and Security Affairs; Article 31(2) of the former Regulations on Security; Article 9 of the former National Intelligence Service Act that prohibits the NIS employees from participating in political activities, which provide for the scope of persons subject to identity investigation; Article 31(2) of the former Regulations on Security; Article 31(2) of the former Regulations on Security; and Article 9 of the former National Intelligence Service Act that prohibits the NIS employees, such as Nonindicted 31, 32, and 33, from engaging in the duties

(2) The above personnel in charge of the NIS also applied the standards for the performance of duties and was given the unique authority and role to participate in the procedure, and it cannot be deemed that the acts of Nonindicted 31, Nonindicted 32, and Nonindicted 33 are merely an act assisting the performance of duties by the NIS commander.

Considering that the duties of the NIS, such as the contents of the standards and procedures for the performance of duties to be followed by those in charge of the NIS, and the collection, compilation, and distribution of domestic security information, and the investigation into crimes as prescribed by the National Security Act, may infringe on the fundamental rights of the people, it is reasonable to deem that the duties of the NIS have been granted to those in charge of the NIS who implemented orders, such as the collection, surveillance, etc. of information to be carried out by Defendant 2, by properly selecting the subjects and methods of their duties, and by applying the criteria for the performance of duties and the unique authority and role to participate in

In fact, the act of Nonindicted 31, Nonindicted 32, and Nonindicted 33’s non-indicted 15 or non-indicted 7’s non-indicted 15 or non-indicted 7 in itself constitutes an act that infringes on the fundamental rights of the above persons, and the legal responsibility therefrom may be imposed directly on the above working-level personnel of the NIS. However, such an act is not merely an act of supporting the performance of duties by the head of the NIS. Moreover, a report that was made based on the information collected through the non-indicted 31, Nonindicted 32, and Nonindicted 33’s non-indicted 15 or non-indicted 7 may not be deemed to have been an act of assisting

(3) Defendant 2 had the NIS staff, a working-level employee, perform an act beyond the scope of legitimate duties in violation of the standards and procedures for the performance of duties.

Defendant 2, who is a working-level officer, committed a violation of the duty not to infringe on the people’s privacy and freedom of privacy, etc., and led Nonindicted 15 or Nonindicted 7 to the police and to report the result thereof.

Furthermore, in full view of the overall circumstances, such as Nonindicted 31, Nonindicted 32, and Nonindicted 33’s failure to conduct, monitoring, and reporting, etc., the act can be deemed to have exceeded the legitimate scope of duties of the NIS as stipulated under Article 3 of the former NISA, including the inspection of civilians and political persons and their reports, and the collection, preparation, and distribution of domestic security information, investigation of crimes as stipulated under the National Security Act, etc.

B) Nevertheless, the lower court determined otherwise by deeming that Defendant 2 did not constitute a case in which Nonindicted 31, Nonindicted 32, and Nonindicted 33 had Nonindicted 3 do an act for which he did not have a duty, and thus, acquitted Defendant 2 of each part of the violation of the NISA due to the abuse of authority against Nonindicted 15, Nonindicted 31, Nonindicted 32, and Nonindicted 33 regarding Nonindicted 7, and Nonindicted 33. In so determining, the lower court erred by misapprehending the legal doctrine on the violation of the NISA by abuse of authority, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal

C. Existence of admissibility of the output of this case

The lower court, on the grounds indicated in its reasoning, determined that the evidence produced by the prosecutor alone cannot be admitted as evidence of the output documents of this case.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on admissibility of evidence, thereby adversely affecting the judgment.

(p) The part on Defendant 2’s budget diversions for remodeling construction of the building (name omitted)

For the reasons indicated in its holding, the lower court acquitted all of the part on violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to embezzlement, which is the primary charge, and the part on violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to breach of trust

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the intent of unlawful acquisition

C. Defendant 2’s use of the budget related to the Korean school fund funds

For the reasons indicated in its holding, the lower court acquitted all of the part on violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to embezzlement, which is the primary charge, and the part on violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to breach of trust

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the intent of unlawful acquisition

(r) The part on Defendant 7’s budget diversion pursuant to Defendant 7’s financial assistance related to the third labor union

The lower court, on the grounds the grounds indicated in its reasoning, acquitted Defendant 7 of both the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) and the part concerning the occupational embezzlement, which are the ancillary charge, on the ground that Defendant 7’s conspiracy and conspiracy on this part of the crime was not proven.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(s) Of the primary and preliminary facts charged against Defendant 10, each portion arising from the delivery of KRW 20 million to Nonindicted 34 on December 19, 2011.

The lower court, on the grounds indicated in its reasoning, acquitted all of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on joint principal offenders, thereby adversely affecting the conclusion of the judgment.

(t) The remainder

Of the judgment below, the prosecutor filed an appeal on the whole part of Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 7, Defendant 9, Defendant 10, and Defendant 11. However, the rest of the judgment is not indicated in the petition of appeal or the appellate brief.

13. Scope of reversal

The part of the lower judgment, which received the Prosecutor’s argument in the grounds of appeal, or the part of the lower judgment, which is a single crime, that is, the part against Defendant 2, Defendant 7, and Defendant 9, should be reversed for the violation of the National Intelligence Service Act and the part of acquittal and acquittal due to abuse of authority against the employees of the NIS. The lower court deemed that the part which found Defendant 2, Defendant 7, and Defendant 9 guilty constituted concurrent crimes under the former part of Article 37 of the Criminal Act and rendered a single sentence, and thus, the part of the lower judgment against Defendant 2, Defendant 7, and Defendant 9 (including the part of

14. Conclusion

Therefore, among the judgment below, the part of conviction against Defendant 2 (including the part of acquittal in the grounds of appeal) and the part of acquittal against Defendant 7 due to abuse of authority against the NIS employees, the part of acquittal against Defendant 7 (including the part of acquittal in the grounds of appeal), and the part of acquittal against Defendant 9 due to abuse of authority against the NIS employees, and the part of acquittal against each of the violation of the NIS by abuse of authority against the NIS employees of the NIS employees are all reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal against Defendant 1, 3, 4, 5, 6, 10, and 11, the prosecutor’s appeal against Defendant 1, 3, 4, 5, 10, and 11, and the remaining appeals against Defendant 2, 7, and 9 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant