The judgment of the court below which acquitted the charged facts of this case is erroneous in the misapprehension of legal principles as follows.

A. Violation of the Presidential Records Management Act

1) The assertion that the document management card of this case was created as the Presidential records as the “electronic records reported” or “record documents”

A) According to Articles 2 and 7 of the Presidential Records Management Act, Article 16 of the Public Records Management Act, and Article 16 of the Enforcement Decree of the Act on the Management of Public Archives, etc., it is interpreted that the creation and receipt of Presidential records as requirements for the management of public records does not mean “the completion” but are “production and possession by creation and receipt,” and thus, the lower court’s interpretation that the creation and receipt should be “the completion” as requirements for Presidential records goes beyond the bounds of the language and text.

B) In full view of Article 3 of the Presidential Records Management Regulations, which was a practical provision for the management of Presidential records around 2007, Article 65 of the former Enforcement Decree of the Public Records Management Act (wholly amended by Presidential Decree No. 19985, Apr. 4, 2007) and Article 4 of the former Enforcement Rule of the Public Records Management Act (amended by Ordinance of the Ministry of Public Administration and Security No. 136, May 4, 2010), etc., the Presidential records may be created not only in cases where the President approves, but also in cases where the Presidential records have been reported to the President. Thus, when the instant document management card, which was approved by attaching the file of the instant minutes, has been reported to the President, it was created with the electronic records as “reported electronic records.”

C) In full view of Articles 2 and 7 of the Presidential Records Management Act, Article 16 of the Public Records Management Act, and Article 16 of the Enforcement Decree of the Act on the Management of Public Archives, and Article 16 of the Public Records Management Act, etc. that “it is possible to manage the life cycle of documents from the creation of documents to the decision-making process in the distribution stage, and the preservation of records,” etc., the document management card of this case was created as the Presidential records by “the course document” and “the document at the interim stage of approval or report, reporting route, instructions, etc.” as “the course document” and “the document management card of this case was created as “the process document”. Therefore, by Defendant 2’s reporting or questioning the document management card of this case or by Defendant 1’s approval or confirmation, the document management card of this case was created as “the process document.”

2) The assertion that the document management card of this case was created as Presidential records as “refilled documents”

A) Even if the Presidential records are deemed to have been “production” only after the approval was made as in the original judgment, the determination that the elements of “an intention to form a public document with the effect of the approval” or “an intention to form a public document with the effect of the approval” should not be based on the legal basis, nor should it exceed the literal limit of the approval. At each approval date, it is de facto impossible to determine whether to approve the approval after examining the “record creation intention” or “an intention to form a public document” of the approval authority, and the decision-making by an administrative agency shall take precedence over the principle of public law, such as the fairness of administrative act, and so it is reasonable to deem that the approval takes effect once it has the form and procedure. In light of the fact that the “the authority to approve the documents posted by the person in charge” on the approval of the electronic document system (public notice of the Ministry of Government Administration and Home Affairs), in light of the fact that there is no need for the approval authority’s internal deliberation, it is reasonable to deem that the final consent management authority’s consent to the document of this case (including digital signature).

B) Even if the meaning of approval as stated in the judgment below is deemed to be “the act of digital signature, etc. on the basis of the intention of establishing a document as an official document, one of the “return” or “document processing” may first be determined in detail with respect to the document management card of this case where the person having authority to approve approval selects one of the “return” or “document processing” and selects “document processing”, and the type of “inspection, implementation, review, postponement, and suspension” shall be determined in detail. The choice of “document processing” is based on Non-Indicted 1’s intent to create records or “official document formation intention.” Non-Indicted 1’s former president was well aware of the fact that the document management card of this case, as well as the “inspection”, can be completed and processed, and the document management card of this case, as well as the document management card of this case, are transferred to the Presidential Archives. Thus, it is reasonable to view “document processing” with respect to the document management card of this case as the document management card of this case as the Presidential record.

C) Even if it is reasonable to deem that Nonindicted 1’s former president did not approve on the instant document management card, it falls under a document approved by Defendant 1 as the highest approving authority or interim approving authority of the assisting agency, and thus, the instant document management card was created by Presidential records.

(b) Points of damage to public electromagnetic records;

The file of the minutes of this case is not an abstract but an original copy; the files of the minutes of this case are completely different from the State original of the minutes of this case that were created as confidential from the NIS around January 3, 2008, the purpose of production is completely different; the Ministry of Unification inquiry reply and the statement made by the witness of the court below is clear that the contents of the Ministry of Unification inquiry reply and the statement made by the witness of the court below are as follows: “the removal of the extract actually prepared before receiving the decision is made, and it shall not be deleted without permission after the approval.” In light of the fact that the former president of the court below did not approve the final minutes, there is no reason to delete the history and progress in the case of confidential records, and there is no reason to delete the records with historical value, the document management card of this case cannot be deemed to have been deleted by legitimate authority.

(c) Any other assertion.

1) Admissibility of evidence of Defendant 2’s written statement by the prosecution on July 28, 2013 against Defendant 2

Defendant 2 received an investigation as a witness when the facts suspected of suspicion have not been confirmed in the prosecution around July 28, 2013. Thus, it does not need to give prior notice of the right to refuse to make statements even in such cases. Accordingly, even if Defendant 2 did not give notice of the right to refuse to make statements at the time of the preparation of the above written statement by the prosecution, the admissibility of the above written statement

2) Omission of factual determination, such as motive for crime

Although the lower court permitted the revision of the indictment to add the motive for committing the instant facts charged, it did not state the part concerning the motive for committing the instant facts when stating the summary of the facts charged, and omitted a fact-finding decision on the motive for committing the instant crime, the time of destruction of the instant document management card, which was approved by attaching the minutes of the instant case, and the series of acts by the Defendants with regard thereto.

2. Facts acknowledged by this court; and

According to the evidence duly adopted and examined by the court below and the trial court, the following facts can be acknowledged:

A. At the time of the instant inter-Korean summit, Defendant 1, who was the chief secretary of the Presidential Secretariat ○○○○○○○○○○○ at the instant conference, was present at the said conference, and Defendant 2, who was the chief secretary of the ○○○○○○○○○○○○○○○○○○○○○○, had prepared to take charge of recording the contents of the conference at the said conference, recorded the contents of the conference in advance, and was able

B. After the completion of the inter-Korean summits in this case, the recording file, which recorded the contents of the meeting, was provided to the NIS. On the basis of this, the staff of the NIS in charge of the preparation of the minutes of the meeting, and sent the minutes to the Defendants on October 5, 2007 (Evidence Record 481 pages, 5,814 pages).

C. On October 6, 2007, around 11:14, Defendant 2 perused the files of the transmitted minutes, and revised and supplemented them, and made the file of the instant minutes. After which, around 15:13, 207, Defendant 2 prepared the instant document management card in the e support system, which is the integrated business management system, and the title (title omitted) was “(title omitted)”; the subject name was “(title omitted); the subject name was “a business report”; the course was “Defendant 1 ○○○○○○○○○○○○○○○○○○○○○○” and “Nonindicted 1” were written in the “handling Opinion” column; and then, Defendant 2 approved the instant document management card around 16:34 on the same day, along with the file minutes of the instant case.

D. At around 16:41 on October 9, 2007, Defendant 1 perused the document management card of this case, which was approved by Defendant 2, and made a signature on the “processing Opinion” column, and then processed the document management card of this case. After which, at ○○○○○○○○○ and its affiliated departments, the document management card of this case reached the document issued by Nonindicted 4, who was in charge of prior and subsequent inspection of all approval and report documents sent to Nonindicted 1’s president, at around 16:43 on the same day, inspected the document management card of this case, and then moved the document management card of this case to the President on October 106:42, 207, which was approved by Nonindicted 1.

E. At around 22:55 on October 19, 2007, the president of Nonindicted Party 1 opened and confirmed the contents of the minutes of this case attached to the document management card of this case approved as above. At around 11:23 of the same month, on the 21st day of the same month, Nonindicted Party 1 entered “(processing Opinion 2 omitted)” in the “management opinion” column of the document management card of this case as “documents processing opinion.” On the screen of the approving authority’s selection of “documents processing”, the items were classified into “inspection” during inspection, enforcement, review, postponement, and suspension, and on the other day, around 11:56, the electronic files of this case were revised and supplemented to be stored in the e support system, and the electronic documents were recorded and attached to Nonindicted Party 1’s “(Personal Name 2 omitted).hwp” file, which is composed of Nonindicted Party 1’s perusal of the above items, and Defendant 1 and Nonindicted Party 24, who signed the document management card of this case.

Table contained in the text of the Act (Omission of any amended or supplemented content) 071020 Presidents

F. Defendant 2 confirmed the document management card of this case returned to himself and revised the minutes of this case, and requested the correction of the minutes to the NIS employee on October 22, 2007, when transmitting the revised minutes to the NIS employee on October 17:16, 2007. Defendant 2 sent the revised minutes files to the Defendants on October 24, 2007 (Evidence No. 481, 5,816 pages of the evidence record). Defendant 2 completed the minutes by correcting and supplementing the files received from an employee of the NIS employee from around that time to January 2, 2008, and by reporting them to the president of Nonindicted Party 1 before obtaining approval.

G. Defendant 2 provided a copy of the minutes in the form of paper in which the first degree secret is indicated to the NIS around January 2, 2008, while Defendant 2 is the completed minutes in the Cheongbu, and Defendant 2 prepared the final minutes through a self revision and supplementation based on the copy of the above minutes delivered by Defendant 2, and produced them as Class 1 confidential on January 3, 2008.

H. As seen earlier, the document management card of this case was in a state of being processed in parallel with Defendant 2, and Defendant 2 was able to select the items of the e support system structure, and register the document management card of this case. However, Defendant 2 did not select the items of the e support system, and Defendant 2 did not process the document management card of this case as the “contincing review” on January 30, 2008.

I. Meanwhile, from the beginning of 2007, the Ministry of Justice formed TF on the transfer of records and the transfer of records. Since Article 16(2) of the Act on the Management of Presidential Archives enacted on April 27, 2007 provides that "the head of the Presidential records creation institution intends to transfer Presidential records to the competent record repository, he/she shall classify and transfer the relevant Presidential records as to whether they are open to the public." Thus, while carrying out the work of "record Re-classification" related to the transfer of Presidential records, he/she reviewed whether the records are appropriate, whether they are transferred, and whether they are subject to transfer, and divided the period of time into the first to the third to the third to the third to 1). After such reclassification, the work of making certain document management cards, such as the test documents, document management cards corresponding to duplicate documents, etc., could not be recognized in the e-support system was conducted until around February 2008, which was the end of the term of office of Nonindicted Party 1, the method was that Nonindicted Party 3’s “the administrative document management Information” was deleted.

(j) On February 14, 2008, around 11:30, the URL of the e support system was changed to a temporary screen to the effect that “it shall not be allowed to temporarily access due to the transfer of e-support data, etc. to the records management system,” rather than the log screen that is changed, the general users became one who is unable to access by the e-support system.

(k) On February 14, 2008, Defendant 2 linked to the e support system and prepared a e-mail report (hereinafter referred to as “the e-mail report of this case”) as “(the e-mail omitted)” (hereinafter referred to as “the e-mail report of this case”), and attached the file of the minutes approved by the former president of Non-Indicted 1 as “(the e-mail name 3 omitted).hwp” (hereinafter referred to as “the e-mail report of this case”), and registered Non-Indicted 1 as the receiver. The contents of the e-mail report of this case are as follows.

Table contained in the text of this case < The contents of this case Meo Report>

T. From February 14, 2008 to February 15, 2008, from 17:00 to 2:00, a copy of the data data of the e support system was reproduced to the e support system (hereinafter “e support system”) 3). The e support system under the e support system was moved to 4) around February 18, 2008.

(m) As a result of the prosecutor’s search and seizure of the Presidential Archives conducted from August 16, 2013 to November 14, 2013, the document management card of this case and the instant domain report were not found among the Presidential records transferred to the Presidential Archives at the end of the participating government’s term of office, and the document management card of this case and the instant domain report of this case were not discovered. In the process of analyzing the sealed support system, the tracking of the deletion of the instant document management card and the instant domain report were discovered.

3. Judgment on violation of the Presidential Records Management Act

A. As to the Presidential records creation requirements

As the court below duly acknowledged, ① since the production entity of Presidential records is a certain “institution,” it is difficult to view it as “production” merely by simply preparing or proposing a document management card in the form of an electronic document. It can be evaluated as Presidential records if it can be seen that it was created by each institution meeting the requirements of the subject (the President, assistant agency, advisory agency, and security service of the President, and presidential agency). ② It is meaningful that electronic documents are established as official documents and that it was produced by an institution. At the same time, there is a requirement that electronic document is established as official document. Thus, in the case of an electronic document in the form of which the approval authority is planned as document management card of this case, it is difficult to view the “production” of the relevant institution as “making approval” and “the content of the document creation” as “the content of the document creation is difficult to be seen as being in accordance with the principle of no punishment without law,” and it is difficult to see that the “record production authority’s “making approval” in the immediately preceding stage of production and the content of the document creation.”

1) The lower court cited “production or receipt has been completed” as a requirement for Presidential records, and deemed that the part related to “production” among them is “production requirements” and the term “production” in itself is merely deemed to have been expressed in terms of the concept of starting and finishing the creation. Therefore, it is difficult to view such expression as exceeding the meaning of the language of “production by creation or receipt” under Article 2 subparag. 1 of the Presidential Records Management Act.

2) The content of the Act on the Creation of Presidential Records, which is the date and time of destroying the Presidential records without permission as stated in the instant facts charged, is as follows.

A) Under Article 7(1) of the former Presidential Records Management Act (amended by Act No. 1009, Feb. 4, 2010; hereinafter “Presidential Records Act”), Article 7(1) of the same Act provides that “The President and the head of an institution that creates Presidential records shall create and manage all the processes and results related to the President’s performance of duties as records.”

B) Under Article 16(1) of the former Act on the Management of Public Archives (amended by Act No. 11391, Mar. 21, 2012; hereinafter “Public Records Act”), Article 16(1) of the same Act provides that “public institutions shall prepare measures necessary for the management of records based on the process of performing their duties so that all the process and results of performing their duties can be created and managed as archives in order to perform their duties in an efficient and responsible manner.”

C) Article 16 of the former Enforcement Decree of the Public Records Act (amended by Presidential Decree No. 20741, Feb. 29, 2008; hereinafter “Enforcement Decree of the Public Records Act”) provides that “A public institution shall manage the matters of correction, personal information, matters to be reported by the performance of duties, review matters, etc., including the records officially approved or received, as records.”

D) Article 4 of the former Enforcement Rule of the Public Records Act (amended by Ordinance of the Ministry of Public Administration and Security No. 136 of May 4, 2010) provides that “A person with the discretionary authority shall grant the production registration number to the records approved or reported to him/her after the approval or report is completed.”

E) Article 3 of the Presidential Records Management Regulations, which was a practical regulation on the management of the Presidential Records around 2007, provides that “records created or received by the President and the Presidential Secretariat, etc. in relation to their duties,” other than “records created or received by the President”, and Article 65(1)6 of the former Enforcement Decree of the Public Records Act (wholly amended by Presidential Decree No. 19985, Apr. 4, 2007; Presidential Decree No. 20191, Jul. 26, 2007; Presidential Decree No. 20191, Apr. 6, 2007) provides that “records created or received by the President and its auxiliary agencies” (Article 28(1)2 of the former Enforcement Decree of the Public Records Management Act) shall be the scope of the presidential-related records, and Article 65(1) of the former Enforcement Decree of the Public Records Act (wholly amended by Presidential Decree No. 19985, Jul. 4, 2007).

3) Each of the provisions of paragraphs (d) and (e) as mentioned in the above 2-D and (e) shall be distinguished from the approval and report by stipulating that the approval and report are “scheduled or reported.” Therefore, it is difficult to deem that the said provision alone does not constitute “the creation of Presidential records directly when reported to the President.”

4) In addition, the provisions of paragraphs (a) through (c) of the above 2 are merely providing “the President and the head of the Presidential records creation institution with the obligation to create and manage all processes and results related to the performance of the duties of the President as records,” or providing “a public institution with the obligation to prepare measures necessary for the management of records based on the process and results of the performance of duties so that they may be created and managed as records” or “a public institution with the obligation to keep the details of revisions and records, etc. generated in the course of approval or the obligation to manage them as records” and “information, etc., such as documents at the interim stage of report or report, the course of report or instructions, etc.,” as “a curriculum document,” and it does not define the production requirement to the effect that they are created as Presidential records by “other means such as report, letter, etc.,” and it is difficult to view that each of the above provisions has reached the conclusion that “all process documents are created as Presidential records regardless of whether or not they are re-produced.”

5) Meanwhile, in the e support system, it is possible to report to an addressee using the “mail report” function. Unlike the document management card, the addressee does not have to obtain approval since only simple opinion registration is possible without the concept of document processing. However, in light of the fact that the document management card selects “return” or “document processing” and then it is possible to obtain approval, one of the “inspection, implementation, review, postponement, suspension,” among the “document processing”, it is reasonable to see that the document management card in this case is a document management record of the nature expected to obtain approval. Thus, the document management card in this case is created as a Presidential record that should be “determination.”

6) Although the case where the document management card and the document file attached thereto are transferred to the Presidential Archives and preserved even though the approving authority did not grant the final approval after the return and re-examination of the document management card for which approval was scheduled, it cannot be deemed that all the documents transferred to the Presidential Archives have been transferred after a strict examination as to whether they are the Presidential records. However, such circumstance alone alone does not mean that the document reported was created as the Presidential records even if it was the archives scheduled for approval. In other words, the requirement for creation as the Presidential records is an area where normative determination should be made in consideration of the overall content, purport, and the literal meaning of the relevant provision, and it is not determined in light of the actual management status of the Presidential Archives.

In addition, according to the statement at the court of the court below held by the non-indicted 6, who promoted the affairs of drafting, promoting, and organizing the policies of the participating government while working in the office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Do governor, and carried out the affairs of collecting and transferring the Do governor to the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of the Office of Do governor, it can be recognized that the periodicals published by the office of the Office of the Office of the Office of the Office

Therefore, even if there are cases where the document management card, which has been closed and processed back to the reporter without obtaining approval, was transferred to the Presidential records, all document management cards cannot be deemed to have been created as Presidential records at the time when the President reported to the President.

B. As to the meaning of “decision” by the approving authority on the document management card

The following circumstances are acknowledged by the court below's duly admitted and investigated by the court below, i.e., "a statement of intent to approve or approve the contents of the approving authority by examining or approving the agenda submitted by a superior who has the authority to make a decision," and ii) the document management card is established as an official document and at the same time the document management card is created as an archives created by the relevant agency, and at the same time, the document management card is created as an official document. In light of the following circumstances recognized by the evidence duly adopted and investigated by the court below and the trial court, the document management card is approved by the document management card, and the document management card is approved by the approving authority to establish the document management card as an official document." The judgment of the court below to the same purport is just, and there is no error of law by misunderstanding facts or misunderstanding of legal principles as alleged by the public prosecutor.

1) As seen earlier, the term “approval” means to grant permission or approval by examining the agenda submitted by a superior who has the authority to make a decision, and the meaning of “permission” in this context is “permission to act or perform a work,” and the prior meaning of “approval” is “taking any fact,” and in the public law, the term “approval” is defined as “approval or consent by the State or a local government to perform a specific act by another agency or an individual.” In full view of the fact that the term “approval” is defined as “approval or consent by the State or a local government to perform a specific act by another agency or an individual,” the term “in granting approval” can be deemed as an element of resolution.

2) Since the “authors’ intention to create records” or “authors’ intention to establish official documents” can be sufficiently determined in accordance with the form and content of approval externally expressed, it cannot be deemed impossible to determine whether the “record creation intention” or “authors’ intention to establish official documents.”

3) The prosecutor argues that the decision-making of an administrative agency should take precedence over the principle of public law, such as the impartiality of the administrative act, and therefore the approval shall take effect once it has the form and procedure. However, the fairness of the administrative act generally refers to the "it is recognized as effective once against the other party and interested parties until the cancellation by the competent administrative agency, except where the defect in the administrative act is grave and obvious, even if there is a defect in the administrative act, and it is a problem concerning the validity after the administrative act is established. Therefore, it cannot be viewed as a legal principle that can be referred in relation to the establishment of approval.

4) In addition, the prosecutor asserts that “the document written by the person who has the authority to approve shall be signed by the person who has the authority to approve the document written by the person who has the authority to approve” with respect to the approval in the specification of the electronic document system of the administrative agency. However, since the above notification merely provides the method of approval in the electronic document system, the meaning of approval as a requirement for the creation of Presidential records may not be determined on the basis of the provision on the method of approval in the electronic document system. In addition, the above notification provides that “the document written by the person who has the authority to approve shall be returned without the approval.” This assumes that the person who has the authority to approve the document written by the person who has the authority to approve shall not give the written approval or approve the document written by the person who has the authority to approve it, and the opposite concept of approval is presumed to be premised on “the person who has the authority to approve the document returned to the person who has the authority to approve it, and thus, it is difficult to accept the foregoing assertion that the above provision on the definition of approval also is a prosecutor’s expression of consent or approval for the document written approval.

C. Whether the document management card of this case was created as Presidential records

In light of the following circumstances acknowledged by the court below and the court below's duly adopted and examined evidence, the court below's decision to the same purport is just and there is no error of law of misunderstanding of facts or misunderstanding of legal principles, as otherwise alleged by the prosecutor, since the document management card in this case was produced as Presidential records and there is no other evidence to acknowledge it.

1) As seen earlier, in light of the nature of document management card, the document management card of this case falls under a document that is scheduled to be approved, and is created into Presidential records with the approval of the approving authority.

2) With respect to the document management card of this case, where one of the “return” or “processing of Documents” is first selected and the “processing of Documents” is selected, five types of “inspection, implementation, review, postponement, and interruption” can be determined. This is merely an expression of future business performance direction, etc. as to the document management card which was approved, and it should be determined whether there is “record creation intention” or “official document formation intention” in light of whether there is separate opinions or review instructions in the processing column. Thus, it cannot be deemed that the document management card of this case was created as a document or established as an official document merely by selecting one of the “inspection, implementation, review, postponement, and suspension.” Therefore, it cannot be deemed that the selection of “the document management” is necessarily premised on “the intention of creation of records” or “the intention of establishing official document.”

3) As to the instant document management card, Nonindicted 1’s former president stated the item of “inspection” in the “document processing” column as “(processing Opinion 2 omitted)” and attached a file containing specific review instructions, etc., the purport is that “(the content omitted).” As such, it is clear that the content of Nonindicted 1’s handling opinions and attached files, as indicated by the former president, is that the instant document management card and the file files attached thereto are incorporated into an official document without the consent or consent on the establishment of the instant document management file as they are.

In addition, the phrase “inspection” of “documents processing” means “to read and confirm the contents of the report,” and the phrase “re-examination” means “to supplement or re-examine and report the contents of the report,” 11). In addition, Nonindicted Party 1 demanded that the former president correct and supplement the minutes files of this case and re-examine them to the e-support system, and stated the reasons. Even if the re-examination was not carried out, it should be deemed that the re-examination on the document management card of this case was directed.

4) In a case where the document management card was generally re-processed in the e support system due to the content error and returned to the drafter, the originator shall revise the content, re-designated the route to the superior, and then report it to the next route. However, Defendant 2 did not complete the process of re-reporting and re-determineing the document management card of this case, which was carried out under the e support system, according to the purport of the re-examination order issued by Nonindicted 1. Therefore, the document management card of this case, as long as the document management card of this case did not approve the approval and final completion of the content, is not deemed to have been created as the Presidential record.

5) 검사는 피고인 1의 결재는 보좌기관의 수장 또는 중간결재권자의 결재에 해당하므로 결국 이 사건 문서관리카드는 ‘결재권자의 결재’가 있는 경우에 해당한다고 주장하나, ① 대통령에게 보고하는 경우 행정관리체계에 따라 ◇◇◇◇◇◇◇, ☆☆☆☆, ▽▽▽▽을 거쳐 보고하게 되어 있는데, 피고인 1은 중간검토자로서 최종검토자의 편의를 고려하여 상행처리 또는 하행처리를 하는 것일 뿐인 점(증거기록 4,876쪽 내지 4,877쪽), ② 결재란 해당 보고서를 공문서로서 성립시켜 완성하고자 하는 최종결재권자의 권한에 해당하는 점을 종합하여 보면, 피고인 1이 ‘열람’ 처리를 하여 공소외 1전 대통령에게 상행처리한 것만으로 이 사건 문서관리카드의 결재가 있었다고 보기 어려워 대통령기록물로 생산되었다고 할 수 없다.

4. Judgment on damage to public electromagnetic records, etc.

In light of the following circumstances acknowledged by the court below and the court below, i.e., (i) it is reasonable to deem that the file of the minutes of this case was an abstract before the completion as a correction or supplement, and (ii) the minutes were completed through the correction or supplement, and there is no evidence to deem that they were either destroyed or divulged without keeping the completed minutes, the file of the minutes of this case is no longer “electronic records used by public offices” and (iii) the document management card attached with the file of the minutes of this case cannot be deemed as “electronic records used by public offices.” Thus, the document management card of this case cannot be deemed as “electronic records used by public offices,” and even if Defendant 2 deleted information on the document management card of this case, it cannot be deemed as null and void, unless there is any evidence to acknowledge otherwise.

Although this part of the judgment of the court below is somewhat inappropriate, it is just in the conclusion that the document management card of this case cannot be seen as electronic records used by public offices, and there is no error of misunderstanding of facts or misunderstanding of legal principles that affected the conclusion of the judgment, as alleged by the prosecutor.

5. Determination on other arguments

A. Determination on the admissibility of Defendant 2’s written statement by the prosecution on July 28, 2013

1) Legal principles

If documents or documents stating the suspect's statement are prepared in the course of investigation in the investigative agency, they cannot be viewed differently from the suspect interrogation protocol even if they were in the form of "written statement, written statement, or written statement". Meanwhile, the suspect's right to refuse to make statements guaranteed by the Criminal Procedure Act is based on the right to refuse to make self-incrimination, which is disadvantageous to himself/herself, guaranteed by the Constitution, and thus, if the investigative agency does not notify the suspect of the right to refuse to make statements in advance while questioning the suspect, the suspect's statement should be denied even if it is acknowledged as unlawful collected evidence (see Supreme Court Decision 2008Do8213, Aug. 20, 2009).

In addition, it is reasonable to view that the status of a suspect subject to notification of the right to refuse to make statements by an investigative agency is recognized when an investigative agency actually conducted an act of commencing an investigation by deeming that the person subject to investigation is guilty of a crime even before the investigative agency takes a formal procedure for acceptance of the case, such as preparing a written statement of offender (see, e.g., Supreme Court Decisions 2000Do2968, Oct. 26, 2001; 2010Do8294, Nov. 10, 201). In particular, the content of the statement made by the person subject to investigation is not merely about a third party crime, but it is about a crime jointly related to himself/herself and a third party, or about a third party's suspected criminal fact, and thus, the investigation agency should notify the person subject to investigation of the right to refuse to make statements in advance before it hears the statement (see, e.g., Supreme Court Decisions 2008Do7098, May 28, 2009>

(ii) the facts of recognition

According to the records, the following facts are recognized.

A) On October 17, 2012, at the Seoul Southern District Prosecutors’ Office, a written accusation was received in the name of the democratic integrated party against Nonindicted 7, 8, and 9 in the name of the Seoul Southern District Prosecutors’ Office (Evidence Records 8,995 pages). On December 6, 2012, an additional accusation was received against Nonindicted 7, 8, and 9 in the Seoul Central Prosecutors’ Office where the said case was investigated (Evidence Records 9,011 pages).

B) On January 14, 2013, Defendant 2 appeared and stated as a witness to the Seoul Central District Public Prosecutor’s Office on the case under the Public Official Election Act against the above Nonindicted 7 and two others, as follows.

본문내 포함된 표 ① “국정원에서 회의록을 만든 후 당시 피고인 1 ◎◎◎◎과 공소외 10 ▽▽▽▽을 거쳐서 공소외 1 대통령님께 보고드린 것으로 알고 있다. 또한, 공소외 1 대통령님께 올라가는 모든 문서를 사후에라도 반드시 전자결재시스템으로 보고하게 되어 있어 국정원에서 만든 남북정상회담 회의록 파일을 첨부하여 보고하였다. 대통령께서 회의록을 보시고 회의록은 국정원에서 보관하도록 한 후 전자결재시스템에 있는 회의록 파일은 없애도록 지시하였다.”(증거기록 8,821쪽) ② “공소외 1 대통령이 전자결재시스템에 있는 대화록을 없애도록 한 이유는 대통령실 기록이 대통령기록관으로 이관되는데, 이러한 경우 다음 정부가 정상회담 등 필요할 경우에 참고하기 굉장히 어렵다. 따라서 다음 정부에서 필요하면 참고하라는 취지로 국정원에서 회의록을 비밀로 보관하고, 전자결재시스템상 보고된 대화록 파일은 보안상 이유로 삭제하도록 한 것이다.”(증거기록 8,821쪽 내지 8,822쪽) ③ “공소외 1 대통령께 보고한 남북정상회담 대화록은 국정원에 보내졌는지 아니면 청와대에서 파기되었는지는 잘 모르겠으나, 문서로든 파일로든 청와대에 남겨지지 않은 것이 확실하다.”(증거기록 8,822쪽) ④ “당시 나의 관심은 대통령 지시에 따라 청와대에 남북정상회담 회의록이 남지 않도록 하는 것이었기 때문에 국정원 대화록이 문서로든 전자시스템으로 보고된 파일로든 청와대에 남겨지지 않은 것은 확실하다.”(증거기록 8,822쪽) ⑤ “공소외 1 대통령이 전자결재시스템 보고상에서 첨부되어있는 (회의록 명칭 생략)을 삭제하라고 지시한 것은 2008. 1. 중순 이후경인 것으로 기억하고, 삭제하는 조치는 그 지시가 있던 무렵인 것 같다.”(증거기록 8,823쪽 내지 8,824쪽) ⑥ “저희(○○○○○○○○실)와 ▷▷▷▷비서관실 모두에 (회의록 명칭 생략)을 전자결재시스템에서 삭제하라는 지시가 갔을 것으로 생각된다.”(증거기록 8,824쪽)

C) On July 2, 2013, at the plenary session of the National Assembly, “the proposal to request the submission of data on the preservation of national records, such as the minutes of the second South and North Korean summit and the recorded records,” passed on July 10 of the same year. On July 10 of the same year, the House Steering Committee passed the “the proposal on the perusal, etc. of the data on the second South and North Korean summits submitted by the National Record Board” and designated five members of the said Committee as inspection committee, respectively, who belong to the said Committee and five members of the Democratic Party, to peruse the relevant data on the minutes of the second South and North Korean summits held in the year 2007 (the 10 pages of evidentiary records, 2,438 pages of the trial records).

D) On July 15, 2013, July 17, 2017 of the same year, the above viewing members conducted preliminary perusal of the materials selected by the National Archives at the Presidential Archives located in the National Archives, based on the results of major key search at the National Archives, but did not find the above minutes. On July 19, 2013 from July 19, 2013 to July 21, 2013, the National Assembly Steering Committee searched the above minutes again, but did not find.

E) On July 22, 2013, the House Steering Committee concluded that “the National Recording Board does not hold the second South and North Korean summit meeting minutes.”

F) On July 25, 2013, the Seoul Central District Public Prosecutor’s Office received a written accusation against “Incompetence of the name of the defendant,” stating that all the defendant who participated in the act, such as concealment, destruction, deletion, theft, etc. of the South-North Korean summit, which was a presidential record, shall be accused of the crime, such as “Violation of the Act on the Management of Presidential Archives.”

사) 당시 대통령기록관 ♤♤♤♤♤과장으로 근무하고 있었던 공소외 11은 2013. 7. 26. 『피의자 성명불상자에 대한 대통령기록물관리에관한법률위반 등 피의사건』에 관하여 참고인으로 출석하여 “2013. 7. 15.부터 2013. 7. 22. 13:00경까지 국회의원들이 국회의결을 거쳐 대통령기록관에서 2007년 남북정상회담 관련 대화록을 찾기 위해 대통령기록물을 열람하였으나 대화록이 검색되지 않았다”고 진술하였고(증거기록 56쪽 내지 57쪽), 당시 대통령기록관 ♤♤♤♤♤과에서 근무 중이었던 공소외 12는 2013. 7. 27. 위 피의사건에 관하여 참고인으로 출석하여 “국회의원들의 4차례에 걸친 검색 결과 2007. 남북정상회담 관련 대화록 또는 회의록, 회담록 등은 발견되지 않았다.”는 취지로 진술하였다(증거기록 126쪽).

H) On July 28, 2013, the prosecutor summoned Defendant 2 as a witness for the suspected case, including the violation of the Presidential Records Management Act, and drafted a written statement. At the time, the prosecutor attended the case of violation of the Public Official Election Act against Nonindicted 7, etc. as a witness on January 14, 2013 and February 4, 2013, and investigated the details of the statement. Defendant 2 was examined into the background of the report and approval of the minutes of the instant case against Nonindicted 1, and whether Nonindicted 1’s instructions to delete the instant document management card, and whether Defendant 1 et al. were aware.

I) On October 5, 2013, the prosecutor summoned Defendant 2 as the suspect in the case against the Presidential Records Management Act and drafted an interrogation protocol. On November 15, 2013, the prosecutor brought the instant prosecution against Defendant 2, and stated in the facts charged as follows: “The instant document management card, which is a presidential record, was destroyed without permission in collusion with Defendant 1, and simultaneously invalidated the instant document management card, which is an electronic record used by public offices.”

3) Determination

Examining the above facts in light of the legal principles as seen earlier, the following determination may be made.

Defendant 2 stated in the facts charged of this case on January 14, 2013, and thereafter, the second inter-Korean conference minutes were nonexistent in the Presidential Archives. In such a situation, Defendant 2 received a written charge of violating the Presidential Records Management Act on July 25, 2013, and the written charge against Defendant 2 on July 28, 2013, at the time of the preparation of Defendant 2’s statement as to “Defendant 2’s document management card, which was an electronic record, was destroyed without permission and at the same time, destroyed the document management card, which was an electronic record, used by public offices, and was investigated whether Defendant 1 was aware of the fact that Defendant 2 knew of the deletion of the document management card of this case. Accordingly, it is reasonable to deem that Defendant 2 had been guilty of a crime, such as violation of the Presidential Records Management Act, and thus, Defendant 1 and Defendant 2 had the status of criminal suspect at the time of investigation.

Therefore, even if Defendant 2’s statement was prepared by the investigative agency in the form of the protocol of statement as above, since it has the nature of the protocol of examination of suspect as a document stating Defendant 2’s position at the time of the preparation of the protocol of statement, Defendant 2’s statement on the facts charged of this case, which was written without notifying the right to refuse to make a statement, should be denied as illegally collected evidence.

4) Sub-committee

In the same purport, the judgment of the court below which did not recognize admissibility of the prosecutor's protocol on July 28, 2013 against Defendant 2 is just, and there is no error of misconception of facts or misunderstanding of legal principles as alleged by the prosecutor.

B. As to the assertion that there was an omission of a factual judgment on motive for crime, etc.

Article 325 of the Criminal Procedure Act only provides that "if the defendant's case is not a crime or there is no proof of a criminal fact, the defendant shall be sentenced to the judgment of innocence, and no content shall be decided in the judgment of innocence." Thus, when the court below judged that there is no proof of a criminal fact in the facts charged of this case, it is not necessary to judge all the facts related to the motive for the crime specified in the indictment, the time of the act of destroying the document management card of this case, the series of acts by the defendants, etc., and it is necessary to determine whether there is proof of a criminal fact. Thus, the judgment of the court below does not contain any error as alleged by the prosecutor.

6. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jae-won (Presiding Judge)

Note 1) Evidence Records 871 pages, 1,075 pages, 5,706 pages, 6,985 pages, etc.

2) The former president, before Nonindicted 1, established in his private house to secure his right to peruse the Presidential records, and was recovered from the Presidential Archives around July 19, 2008.

Note 3) Examination of Nonindicted 3’s suspect (Evidence Record 6,459 to 6,460 pages)

4) Nonindicted 5’s interrogation of the administrative secretary of the △△△△△△△ Office (Evidence record 6,402 pages).

5) In the case of the instant document management card, it was impossible to recognize it from the e support system because information on the instant document management card was deleted from the e support system’s domains.

6) On July 26, 2007, the Enforcement Decree of the Presidential Records Management Act (Presidential Decree No. 20191, July 28, 2007) was deleted.

Note 7) Evidence Record 4,883 to 4,899 pages

Note 8) If there is an error in the form or processing of the report, the method of returning it to the originator (Evidence Record 4,881 pages).

9) See, e.g., evidence list 881-3, 881-4

10) Nonindicted 6’s protocol of examination of witness at the lower court (see, e.g., 1,968 through 1,970 of the trial record).

Note 11) Evidence records 4,880 pages