Preparation of an official document, and the exercise of a false official document

All of the Prosecutor's appeals are dismissed.

1. As to the Prosecutor’s Grounds of Appeal

For reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted Defendants on the part of obstruction of performance of official duties by deceptive means, preparation and exercise of false official documents among the charges against the Defendants. Examining the reasoning of the lower judgment in light of relevant legal principles and records, 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 crime of obstruction of performance of official duties, preparation

2. As to the Defendants’ grounds of appeal

A. Legal principles on the crime of abusing authority and obstructing another’s exercise of rights

The crime of abusing authority and obstructing another’s exercise of rights refers to a public official’s exercise of his/her authority in a way of exercising official authority over matters falling under the general official authority by practically and specifically unlawful and unreasonable acts, thereby causing another person to practically perform an act for which he/she does not have any legal obligation or obstructing another person’s specific exercise of rights, and the occurrence of such result shall be caused by the act of abusing official authority. The term “ abuse of authority” means that a public official exercises his/her authority over matters falling under the general official authority and authority. Whether a public official’s exercise of authority constitutes abuse of authority ought to be determined by comprehensively taking account of whether a specific public official’s act was conducted in accordance with the purpose of granting his/her authority under the statutes, whether an act

Inasmuch as a public official’s act constitutes abuse of official authority, it cannot be deemed that the other party’s act constitutes “an act without any obligation.” Whether it constitutes “an act without any obligation” ought to be determined individually by examining whether the other party has a legal obligation to perform such an act separately from whether it has abused official authority. Where the other party to the abuse of official authority is a private person, barring any special circumstance, if the other party to the abuse of official authority does not have an obligation to respond to the ex officio, it may constitute “an act without any obligation.” However, in the event that the other party is a public official or an officer or employee of a public agency, etc. who is subject to certain public duties pursuant to statutes, whether it is not a duty to respond to the ex officio should be determined individually in accordance with the relevant statutes.

An administrative organization ought to respond to modern administration complicated, diverse, and cultural days, while realizing a request for democracy. Accordingly, an administrative organization needs to operate a uniform system structure efficiently, operate democraticly, and require close cooperation and reasonable coordination in order to achieve administrative objectives. Accordingly, a decision-making and enforcement of an administrative agency is ordinarily conducted through diverse preparation process and review, and cooperation with other public officials, departments, or relevant agencies. Such cooperation and exchange of opinions, etc. are necessary to enhance administrative efficiency, and may be performed not only between equal status but also between the supervisory organization and the supervisory organization and the supervisory organization. In such a relationship, it cannot be readily concluded that a public official listens to the request of the other party and performs an act in response to a request by a public official to either express or cooperate with the other party, barring any special circumstance. Ultimately, if a public official is an executive officer or employee of the relevant agency by abusing his/her official authority for a certain day, it is difficult to view that the other party is a public official or an executive officer or employee of the relevant agency and thus falls under the scope of its official duties and duty within 10 days, unless there are special circumstances.

B. Summary of abuse of authority and obstruction of another’s exercise of rights among the instant facts charged

On July 2015, Defendant 1, the head of ○○○○○, as a public official of Grade 6 affiliated with ○○○ Gun office and △△△△△△, designated 17 candidates eligible for promotion among 49 candidates included in the list of candidates eligible for promotion to Grade 5, and ordered the personnel committee to recommend them. Accordingly, Defendant 2, in order to have the said 17 candidates eligible for promotion in the personnel committee, the said 17 executive secretary was appointed as the recommended candidates for promotion, and the personnel committee passed a resolution by the personnel committee as it is, prepared a scenario to announce the result of the resolution by the chairman of the personnel committee, and then this was presented to Nonindicted 1 and Nonindicted 2, the head of the personnel committee, as the executive secretary.

On July 30, 2015, at the meeting of the personnel committee of ○○ Military on the ○○○ on July 30, 2015, Nonindicted Party 2 ordered 17 candidates included in the list of candidates in the list of candidates eligible for promotion according to scenarios to recommend certain 17 candidates eligible for promotion. The Chairperson Nonindicted Party 1 decided 1 to select the 17 candidates eligible for promotion as they are key positions in the operation of the military administration and therefore, it is important to meet with the appointment authority and support. The above 17 persons are the intention of Defendant 1, who is the head of ○○○○○, and must be decided as they are. Accordingly, the personnel committee decided 17 persons who are named as eligible for promotion, even though there is no specific basis to select the candidates eligible for promotion, unlike the order of the list

Accordingly, the Defendants conspired to commit an act without any obligation by abusing the authority to direct and supervise Defendant 1, who is the head of the Gun for the personnel affairs of local public officials belonging to ○○ Military, and by allowing the members of the personnel committee to decide in advance on the person selected according to Defendant 1’s will in violation of the procedures prescribed by the law.

C. Judgment of the Supreme Court

1) Details and legal principles of the statutes on the promotion of local public officials

A) According to the Local Public Officials Act, local public officials shall be appointed from among public officials of the immediately lower class in the same series of class except for promotion by promotion and promotion examination for public officials of Grade I, but shall be appointed from among persons who are in the order of high priority in the list of candidates for promotion (Article 39(3)), the head of a local government has the authority to appoint public officials under his/her control (Article 6(1)), and the appointing authority shall be prescribed by Presidential Decree.

Article 39(5) main sentence of Article 39(5). The appointing authority shall prepare a list of candidates for promotion by class according to the order of proof of work performance rating, career rating, and other capabilities (the main sentence of Article 39(5)). In promotion, the appointing authority shall undergo prior deliberation by the relevant personnel committee (Article 39(4)); the personnel committee shall administer the affairs such as “pre-determination of standards for preservation and management, standards for promotion and transfer;” “prior deliberation on promotion” (Article 8(1)2 and 3). Article 8(1)2 and 3. The members of the personnel committee shall be classified into “the so-called internal members appointed by the appointing authority from among the public officials of the relevant local government; the so-called “outside members”; the personnel committee shall have external members attend the meeting of the personnel committee (Article 7). Article 10(2)2 of this Decree provides that the external members shall be appointed at least 1/2 of the total number of members; the external members shall be at least 3 per cent of the number of candidates for promotion (Article 7(2).3).

According to the delegation of Article 31-2 (7) of the Decree on the Appointment of Local Public Officials, the Regulations on the Evaluation of Local Public Officials (wholly Order of Administrative Draft) shall be conducted by an evaluator and a person in charge of evaluation for each evaluation unit determined by the appointing authority, but among supervisors of the immediately higher level or the next higher level supervisor of the public official subject to evaluation, the person in charge of evaluation shall be designated by the appointing authority (the main sentence of Article 5 (1) and (2) from among supervisors of the immediately higher level, higher level supervisor or senior level supervisor of the public official subject to evaluation (the main sentence of Article 5 (1) and (2)), the evaluator and the person in charge of verification shall prepare and submit a list of evaluation units by evaluation unit to the Work Performance Evaluation Committee (Article 9 (1)), and the Work Performance Evaluation Committee shall review and determine the order and evaluation points of the public official subject to evaluation in accordance with the ratio of specific distribution in the work Performance Evaluation Table (Article 9 (3)).

B) According to the provisions of the Local Public Officials Act and subordinate statutes, the appointing authority of a local public official shall calculate the number of candidates to be promoted according to a certain standard, compile the results of performance rating, etc., and examine and determine whether to promote candidates in the order of high priority in the list of candidates to be promoted. However, it is not necessarily necessary to promote candidates in the order of high priority in the list of candidates to be promoted. However, since local public officials are given to the appointing authority a wide range of discretion to the extent that it is impossible to compare them with administrative disposition or disciplinary action against general public, so if there is evidence of assertion and proof that they are based on the grounds that are reasonable in light of social norms and are not contrary to the relevant provisions governing the qualification of the promotion, and rather reasonable in light of social norms (see, e.g., Supreme Court Decision 2015Du47492, Mar. 27, 2018). In particular, it is necessary to determine that any candidate more suitable for promotion among the candidates in the list of candidates to be promoted is more reasonable and unreasonable.

2) Specific determination on the instant case

The head of local government shall not examine whether candidates are to be promoted or not in accordance with the results of prior deliberation and resolution by the personnel committee in the promotion procedure of public officials of Grade V in accordance with the promotion candidates list method, and finally determine the candidates to be promoted, but the act of inducing members of the personnel committee to decide on the candidates to be promoted through the executive secretary, clerk, etc. of the personnel committee under the name of "recommendation of candidates to be promoted" is not desirable in that it is not consistent with the purpose of the prior deliberation system of the personnel committee, but it cannot be viewed as "the act of inducing members of the personnel committee to decide on the specific candidates to be promoted". The detailed reasons are as follows.

A) The number of persons to be promoted in the promotion of local public officials is as a result of estimating and estimating vacancies based on the expected date of the promotion in the future, taking into account the annual retirement rate, anticipated number of persons to be increased, etc. As such, it cannot be readily concluded that the calculation of the number of persons to be promoted is unlawful solely on the ground that the results are somewhat different from the vacancy that occurred on the actual date of the promotion. This is because the discretionary determination by an administrative agency on the requirements necessary to forecast the uncertain situation that may occur in the future is considerably unreasonable (see, e.g., Supreme Court Decision 2016Du5490, Mar. 15, 2017).

B) The Local Autonomy Act clearly regulates matters to be deliberated and resolved by the personnel committee (Article 8(1)) and matters to be resolved by the personnel committee (Article 69(1)). On the other hand, Article 69(1) provides that disciplinary action shall be subject to prior deliberation and resolution by the personnel committee (Article 39(4)), and the appointment authority may determine and promote persons subject to promotion different from the results of deliberation and resolution by the personnel committee. Although Article 38-5 of the Decree on the Appointment of Local Public Officials provides that "the appointment authority shall comply with the results of prior deliberation or resolution by the personnel committee for promotion of public officials under his/her jurisdiction unless there are any special reasons, the appointment authority may exclude the appointment authority's personnel discretion because it is made without specific delegation of the parent law, and thus, it is premised on the fact that the appointment authority does not comply with the results of deliberation and resolution by the personnel committee, and thus, it should be understood to the effect that the appointment authority should respect the results of deliberation and resolution as much as possible.

Therefore, the final authority to determine the person to be promoted among the candidates included in the list of candidates for promotion has the authority to appoint the appointment authority.As long as the appointment authority is allowed to determine the person to be promoted and promote differently from the results of deliberation and resolution by the personnel committee, it cannot be deemed unlawful to present his opinion on the selection of the person to be promoted to the personnel committee in advance.

C) Even in cases where the appointing authority presents a specific person among the candidates included in the list of candidates eligible for promotion, the members of the personnel committee have the authority and duty to select and present to the appointing authority the specific candidates who are eligible for promotion at the personnel committee level by exercising their own authority for deliberation, and by deciding with the attendance of at least 2/3 of the members and with the consent of a majority of the members present. In particular, if external members whose status is guaranteed are at least 1/2 of the external members participating in the meeting where the appointment authority has decided to be eligible for promotion without deliberation, it cannot be deemed that the members of the personnel committee have exercised their authority passively, and that they do not have any obligation.

D) Nevertheless, the lower court upheld the first instance judgment convicting the part concerning the obstruction of exercising rights among the facts charged in the instant case. In so determining, the lower court erred by misapprehending the legal doctrine on the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and promoting local public officials, thereby failing to exhaust all necessary deliberations, which affected the conclusion

3. Conclusion

Therefore, the part of the judgment below regarding the crime of abusing authority and obstructing another’s exercise of rights is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor’s appeal is dismissed in entirety. It is so decided as per Disposition by

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge