[2] The method of proving that the defendant denies the intention, which is a subjective element of the elements of crime

1. Summary of the facts charged

Of the facts charged in the instant case, the alteration of official documents and the summary of the uttering of altered official documents are as follows.

From September 2008 to July 2012, the Defendant, as a public official belonging to Cheongju-si, worked with the waterworks headquarters ○○○, and was in charge of the supervision of design, construction, etc. concerning the “the project for modernization of the integrated water purification plant in Cheongju-si,” while working with the waterworks headquarters ○○.

With respect to the purchase of slot machines, which are the main equipment of the above business, the Defendant, after undergoing the internal review of the waterworks headquarters in Cheongju-si, and conducted a review on the purchase of slot machines, on April 15, 2012, the Defendant proposed a review report on the purchase of major equipment and materials (hereinafter “the review report of this case”), which presented the opinion that “the Defendant would be deemed desirable to take measures to ensure that slot machines will be supplied by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”)” (hereinafter “Nonindicted Co. 1). The Defendant obtained the approval of Nonindicted Co. 5, the final decision-making authority, upon receiving the interim decision of the head of the waterworks headquarters in charge of ○○ and the department in charge of public service, and Nonindicted Co. 2 and 3 of the department in charge of ○○ and the department in charge of accounting and accounting. Nonindicted Co. 1 is a company that has a patent technology of slot machines collected.

However, unlike the contents of the above review report, the Cheongju-si waterworks headquarters selected “Nonindicted 6 Co., Ltd.” as the subject of a negotiated contract, and the Public Procurement Service entered into a negotiated contract with Nonindicted Co. 6 Co., Ltd. on May 30, 2012 according to the above waterworks headquarters’s purchase request.

On March 8, 2013, when the Defendant had been working with the Cheongju-si Office △△△△△△△△△, the Defendant received a request from the auditor to submit data on the process of entering into a negotiated contract with Nonindicted Incorporated Company 6 in the course of audit on the “the actual condition of construction and management of infrastructure in the Chungcheong area” from the Board of Audit and Inspection on March 8, 2013. At around 11:00 to 12:00 on the same day, the Defendant sought the instant review report from the waterworks business headquarters ○○ and the office, and then removed three copies of the report presented to the Defendant. After which the Defendant removed the file of the said review report stored in the previously used computer, it is desirable to take measures to ensure that the Defendant can be supplied by Nonindicted Company 1 or any company (including regional companies) with the same technology as that of the previous user.” Then, the Defendant put the report into the direction to tear.

Accordingly, the Defendant, without authority, altered the instant review report, which is an official document in the name of ○○ and Nonindicted 2, 2, 3, 4, 4 in charge of accounting and Nonindicted 5, and the head of the Water Supply Business Headquarters, and submitted it to the auditor of the Board of Audit and Inspection who is aware of the fact that it was an official document that was duly formed.

2. The judgment of the court below and the gist of the grounds for appeal

(1) The lower court found the Defendant not guilty of all charges on this part of the facts charged on the ground that it is difficult to deem that the Defendant had a criminal intent to alter the review report in the name of Nonindicted 5 on the ground that (i) the preparing authority and the preparing authority of the instant review report was Nonindicted 5, the head of the waterworks project headquarters, the final approver, and (ii) the Defendant cannot be deemed to have altered the document in the name of Nonindicted 2, Nonindicted 3, and Nonindicted 4, who is not the preparing authority of the document, and (ii) the Defendant would have obtained approval if he revised the review report in this case and requested Nonindicted

The gist of the grounds of appeal by the prosecutor is that the defendant had a criminal intent to modify the review report by Nonindicted 5 to the head of the waterworks project headquarters, disputing the judgment of the court below on the above paragraph (2).

3. Judgment of the Supreme Court

A. The crime of altering official documents is established when a person without authority creates new probative value by making a change to the extent that it does not infringe the identity of the contents of documents already prepared by a public office or a public official for the purpose of uttering (see, e.g., Supreme Court Decision 2002Do7339, Dec. 26, 2003). The crime of altering official documents is established, barring special circumstances, where a public official in charge of the drafting of documents, assisting a final approving authority, does not follow lawful procedures on official documents completed with approval, and changes the contents thereof.

In a case where a criminal defendant denies his/her criminal intent, which is a subjective requirement for the constituent elements of a crime, the criminal intent cannot be objectively proved, and therefore, it is inevitable to prove it by means of proving indirect facts or circumstantial facts related to the criminal intent in light of the nature of an object. In such a case, what constitutes an indirect fact or circumstantial facts related to a crime ought to be reasonably determined based on normal empirical rule in a way that reasonably determines the connection status of the fact by using close observation or analysis (see, e.g., Supreme Court Decisions 2000Do329, Aug. 23, 2002; 2016Do15470, Jan. 12, 2017).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) The review report of this case is an internal document prepared in order to select a supplier of slots while promoting the project for modernization of the integrated water purification plant at the Cheongju-si Waterworks Headquarters. The Defendant, who was affiliated with the waterworks headquarters ○○○, drafted the said document and received Nonindicted 5’s final resolution from the head of the waterworks project headquarters around April 15, 2012 through the interim resolution of ○○ and the guidance division in charge of public duties. The Defendant stated in the review report that the collection machine is desirable to be supplied from Nonindicted Company 1.

(2) The waterworks business headquarters received review opinions from Nonindicted Co. 7, a company in charge of design services for the water purification plant before the aforementioned draft and approval, that “it is desirable to receive slotrs from Nonindicted Co. 1 or the transferred company with patent technology,” and based on that review was conducted by the supervision group and the internal review process within the business headquarters.

(3) However, even after the final decision, Nonindicted 5 was tried by the head of the Waterworks Business Headquarters, as seen above, whether it is adequate to select Nonindicted Company 1, a specific company, as the other party to a negotiated contract. Nonindicted 8, who operated Nonindicted Company 6, was also asked by Nonindicted 8, who had no patent, to demand the opportunity for Nonindicted 5 to change the opportunity for Nonindicted Company 6 to a non-patent-free regional company. After that, Nonindicted 5 instructed the Defendant to examine whether there is any legal or technical problem in selecting a non-patentd regional company as

(4) On May 30, 2012, the waterworks business headquarters selected Nonindicted Co. 6, who is not Nonindicted Co. 1, as a non-indicted Co. 1, and the Public Procurement Service entered into a negotiated contract with Nonindicted Co. 6 on May 30, 2012 upon the request of the waterworks business headquarters for the purchase of the water supply business headquarters.

(5) On March 2013, the Defendant: (a) replaced three pages of the instant review report, as indicated in the facts charged, to which Nonindicted Company 6 was requested to submit data on the process of entering into a negotiated contract with the Board of Audit and Inspection; (b) changed the “Nonindicted Company 1” as “an enterprise with technology equal to or higher than that of Nonindicted Company 1 or an enterprise with which technology equal to or higher than that of the said reporting was secured”; and (c) submitted the said documents to the Auditor of the Board of Audit and Inspection as if they were official documents duly formed.

(6) On the other hand, at the time of revising documents, the Defendant was affiliated with the △△△△△ branch of the Cheongju-si waterworks business headquarters, not the ○○ branch of the Cheongju-si, and Nonindicted 5 retired from the office of the head of the waterworks business headquarters. The Defendant did not report the changes in documents to the head of the Cheongju-si waterworks business headquarters.

C. Comprehensively taking account of the above facts, it may be acknowledged that the Defendant did not have the authority to revise the review report of this case in the same manner as the facts charged, and that there was an alteration without due process, while recognizing that the Defendant did not have the authority to do so. The following reasons are as follows: ① The review report of this case was revised from April 15, 2012, which was the final date of the final decision, about 11 months after the amendment. At the time of the amendment, the Defendant was not in charge of the work related to the water purification plant, and the Defendant was not in the position of the head of the Water Supply and Waterworks Business. In such a case, the Defendant shall be deemed not to have the authority to revise the review report of this case. ② The Defendant reviewed whether to select the local enterprise after the date of the final decision, and made the appearance as the appearance of the instant review report that was approved by the head of the headquarters after reviewing whether to select the local enterprise before the amendment of the review report of this case. However, the Defendant did not have the authority to revise the review report of this case.

In the instant review report, Nonindicted 2 and Nonindicted 3 did not raise an objection to the Defendant’s amendment of the review report, or did not deem that the Defendant was unaware of the alteration on the ground that the Defendant’s aforementioned act conforms with Nonindicted 5’s intent to the deliberation.

Nevertheless, the lower court erred 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 alteration of official documents, thereby adversely affecting the conclusion of the judgment, on the grounds that the Defendant had no criminal intent to alter documents in the name of Nonindicted 5, the head of the Waterworks Business Headquarters. The Prosecutor’s ground of appeal pointing this out is with merit, and all parts of the alteration of official documents and the display of altered official documents should be reversed.

4. Conclusion

The Prosecutor’s appeal is with merit, and this part of the judgment of the court below is reversed and remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)