1. Relevant legal principles

The term “when a public official compels another person to perform an act without any obligation” under Article 123 of the Criminal Act (hereinafter referred to as “the crime of abusing authority and obstructing another person’s exercise of rights”) means when the public official abused his/her authority and causes another person to perform an act without any obligation under the law. Therefore, even if a public official allows a working-level person to perform a fact-finding act with respect to matters belonging to his/her authority, this is merely the result of the public official’s performance of duties, and thus, it does not constitute a case where a public official causes another person to perform an act without obligation in principle. However, if the standards and procedures for performing his/her duties are specifically stated in the statutes and the standards for the performance of duties are applied to a working-level person who assists in performing his/her duties in violation of such standards and procedures, whether a person in charge of performing duties is a person who assists in performing duties in violation of such standards and procedures, and whether a public official has been granted a person with no obligation to perform duties in violation of such standards and procedures shall be determined individually by Supreme Court Decision 2013Do3715, Jan.

2. The judgment of the court below

The court below found that the defendant, who was the director general of the Ministry of Justice, ordered the non-indicted 1 in charge of the prosecutor's personnel management to prepare a personnel plan (hereinafter referred to as "personnel plan of this case") that is located in the △△△ Branch Office of the Public Prosecutor's Office (hereinafter referred to as the "△ Branch Office of △△), who was employed in the △△ Branch Office of the Public Prosecutor's Office (hereinafter referred to as the "△ Branch Office of △△), which is the branch office of the △△ branch office of the public prosecutor's office (hereinafter referred to as the "△ branch office of △△), who is the branch office of the △ branch office of the public prosecutor's office (hereinafter referred to as the "Do governor office of △), who is the branch office of the △ branch office of the △ branch office of the public prosecutor's office (hereinafter referred to as the "Do governor office of △ branch office"), which was located in the first half of 2015, was in violation of the principle of the prosecutor's personnel management.

3. Judgment of the Supreme Court

A. However, in light of the following circumstances revealed in the above legal principles, relevant statutes, records, etc., it is difficult to view that the Defendant had Nonindicted Party 1 prepare the instant personnel proposal and let Nonindicted Party 1 assist the Defendant perform a non-obligatory act in violation of the standards and procedures for the performance of duties to be observed by him/her. 1) The appointment and assignment of the public prosecutor shall be made by the President upon the recommendation of the Minister of Justice (Article 34(1) of the Public Prosecutor’s Office Act). Meanwhile, under Article 2 of the Government Organization Act, a subsidiary of a central administrative agency shall be appointed by the Minister of Justice (Article 34(1) of the Public Prosecutor’s Office Act), except as otherwise expressly provided for in the same Act and other Acts, and a central administrative agency may have a deputy head, deputy head, office head, office chief, and director general of the relevant agency to assist him/her. In addition, according to the organization of the Ministry of Justice and its affiliated agencies, the director general of the public prosecutor’s office shall have the authority of the Minister of Justice and assist the public prosecutor.

The transfer personnel to a public prosecutor shall be based on the principles and standards prescribed by relevant Acts and subordinate statutes, such as the Public Prosecutor's Office Act. However, the transfer personnel belongs to the authority of a personnel authority, and the public prosecutor requires high level of professional knowledge, job ability, and personality. As such, personnel authorities need to determine the transfer personnel in consideration of various circumstances, and have considerable discretion in making a decision thereon, unless it goes beyond the restrictions of Acts and subordinate statutes. A person in charge of working for assisting or assisting the public prosecutor in the performance of his/her duties according to the direction or delegation of a personnel authority may be deemed to have certain authority and role within the scope and discretion.

2) The Minister of Justice shall prepare a fair standard of evaluation in order to evaluate the performance and qualities of a prosecutor. The said standard of evaluation of qualities shall include loyalty, integrity, and friendlyness, etc. The Minister of Justice shall evaluate the prosecutor according to the above standard of evaluation, and reflect the results of the evaluation in personnel management, such as assignment, transfer, etc. (Article 35-2 of the Prosecutors' Office Act). The Prosecutor's Personnel Committee shall be established in the Ministry of Justice to deliberate on important matters concerning the appointment, transfer, and personnel management. The Prosecutor's Personnel Committee shall deliberate on matters concerning the principles of appointment, transfer, and criteria of the prosecutor (Article 35 of the Prosecutor's Office Act). The Ministry of Justice 00 countries established the principle of personnel management of the prosecutor's personnel committee in the form of data collection, "the principle of personnel management of the prosecutor's personnel committee", "the director general of the Ministry of Justice 00, director general of the prosecutor's office, the chief of the prosecutor's office, and the chief of the prosecutor's office, etc. shall establish a proposal of personnel management abroad.

On July 26, 2005, the system of posting time to the public prosecutor's personnel committee was the most recent time to be deliberated on by the public prosecutor's personnel committee. "At the time of deliberation, consideration is given to the desire of the public prosecutor's career examination by the public prosecutor's personnel committee, and the public prosecutor's career examination by the public prosecutor's office shall be replaced in principle, but the public prosecutor's office's career examination by taking into account some of his or her work performance and qualities so that he or she can take into consideration the desire of personnel management or future personnel management plan, and there was no relevant deliberation and resolution by the public prosecutor's personnel committee on August 17, 2015 in relation to the public prosecutor's personnel in the second half of 2015 of this case. The system of posting time to the public prosecutor's office did not place a career examination by the public prosecutor's office and served as a relatively high strength during the period of service by the public prosecutor's office.

It seems to be to consider the prosecutor's personnel desire.

However, even if the arrangement system of a public prosecutor by the time of the instant personnel proposal was maintained as one of the personnel standards or considerations, it is merely a fact that the career inspection by the public prosecutor is considered in the next time personnel management. In addition, in light of the relevant statutes, the placement system of the public prosecutor by the public prosecutor’s office is one of the various personnel standards or various considerations premised on relevant statutes or the matters to be deliberated and resolved by the public prosecutor’s personnel committee, and it cannot be deemed that the public prosecutor by the public prosecutor in charge of personnel management is the one to be observed in preparing a draft of personnel management by the public prosecutor, and it is difficult to find any grounds to regard that the public prosecutor unilaterally takes precedence over other personnel standards or various considerations.

3) As such, a broad discretion is recognized to transfer personnel of a prosecutor, and personnel standards also assumes that various standards and considerations should be comprehensively taken into account. In light of the circumstances such as that the transfer personnel of a prosecutor takes the assignment of a majority of personnel subjects and the workplace in a manner that sets out a work site in a lump sum, and affect mutual chains, a working-level officer who prepares a personnel proposal in accordance with the direction or delegation of a personnel authority has the discretion to prepare a personnel proposal by comprehensively taking into account the aforementioned various standards and considerations for all personnel subjects, and where each of such standards or considerations cannot be satisfied in the process, he/she shall be deemed to be able to apply by making a decision within the scope of the discretion.

Therefore, even if the content of the instant personnel plan re-transfers Nonindicted 2, a career inspector, who had been working in the △ branch office, which is the office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office

In addition, the fact that a person subject to personnel management has immediately submitted a written resignation cannot be recognized as contrary to the principles and standards of this case’s personnel management in the personnel management of this case.

Ultimately, even based on the facts charged in the instant case and the reasoning of the lower judgment, the Defendant’s preparation of the instant personnel proposal by Nonindicted Party 1 cannot be deemed as falling under “when the Defendant, in violation of the principles and standards of public prosecutor’s transfer personnel management as prescribed by the statutes, engaged in an act without any obligation” as referred to in the crime of abuse of authority.

B. Nevertheless, solely based on the circumstances stated in its reasoning, the lower court determined that the Defendant had Nonindicted Party 1 do an act for which he had no duty in the crime of abuse of official capacity, and found the Defendant guilty of the instant facts charged on this premise. In so determining, the lower court erred by misapprehending the legal doctrine on the crime

The error affected the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

Justices Ansan-chul

Jeju High Court Decision 201No. 50

Justices Kim Jong-hwan