(b) coercion;

(c)Violation of the Act on Testimony, Appraisal, etc. before the National Assembly;

Special Prosecutor (For the Defendants)

All appeals by the special prosecutor on the remainder of Defendant 2, Defendant 5, and Defendant 6 are dismissed.

1. Judgment on Defendant 1’s grounds of appeal

(a) Authority to investigate and institute public prosecution by the special prosecutor;

The lower court determined that the facts charged with Defendant 1 are included in the special prosecutor’s investigation under Article 2 subparag. 15 of the Act on the Appointment, etc. of Special Prosecutor for the Purpose of Finding the State Farm Team by civilians, including the largest room of the Park Jong-gu Government (hereinafter “Special Prosecutor Act”).

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the scope of the authority of the special prosecutor prescribed by the Special Inspection Act.

B. Cheongdae documents submitted at the lower court’s trial on admissibility and probative value 1)

The lower court determined that the evidence was admissible as it was not illegally collected, since the special prosecutor violated the Presidential Records Management Act (No. 1352~1406, No. 1352, No. 1406, hereinafter referred to as the Cheongdae documents) or by divulging a secret in the line of duty, which was submitted by the special prosecutor to the lower court after being transferred to the prosecution or directly by the Cheongdae, and thus, cannot be deemed to have been collected by divulging a secret in the line of duty.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding presidential records, relation to performance of duties, leakage, leakage of contents, and the crime of divulgence of official secrets, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2) Documents on the National Intelligence Service Information Report

The lower court determined that the foregoing evidence was not unlawfully collected since Nonindicted 1 kept by the former Minister of Culture, Sports and Tourism (hereinafter referred to as the “Arts. 1”) and voluntarily submitted to the special prosecutor, and Nonindicted 2, who was the chief secretary for the education and culture of the Presidential Secretariat (hereinafter referred to as the “chief secretary for the education and culture of the Presidential Secretariat”), received from Defendant 1 and transmitted by facsimile to the culture and tourism.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of 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, contrary to what is alleged

3) Statement on Nonindicted 3’s preparation of prosecutor’s protocol, suspect interrogation protocol, and Nonindicted 3’s legal statement in the lower court

The fundamental principle of the Criminal Procedure Act adopts the principle of partyism and the principle of court-oriented trials that the substantive examination of a prosecuted case must be conducted by means of attack and defense activities of both the public prosecutor and the defendant in the open court, and the principle of direct examination and the principle of trial-oriented trials that the recognition of facts charged should be based only on the evidence directly examined in the presence of a judge. Accordingly, after the institution of a public prosecution, all the authority of criminal procedures concerning the case belongs to the court of the lawsuit where the case is presided over the case, and the suspect who is the subject of an investigation exercises the right of defense in the position of the defendant as the party to the case as the same as the public prosecutor (Supreme Court en banc Decision 2009Do7436 Decided October 22,

4. 28. See, e.g., Supreme Court Decision 2009Do10412 Decided 28.

Examining in accordance with the basic principles of the Criminal Procedure Act, the first instance court rendered a judgment of innocence against the defendant, and appealed by the prosecutor, and then the investigative agency summoned the person who may be examined as a witness on the appellate trial date to the investigation agency without any special circumstance, and the protocol of statement or the protocol of suspect examination prepared by the investigative agency is inadmissible unless the defendant gives consent to the admissibility of evidence. The same applies to the case where the witness, etc. later appeared as a witness in the court and subsequently recognized the authenticity of the above protocol of statement and the defendant is given an opportunity to cross-examine the defendant, even if the witness, etc. were given an opportunity to cross-examine the defendant. In a case where the witness, etc. made a statement unfavorable to the defendant with the same purport as the above in the court without any admissibility, whether the witness, etc. should be considered as evidence of guilt should be determined carefully by comprehensively taking into account the details of the protocol prepared by the investigation agency prior to the examination of witness and its possibility to have influenced the witness’

The protocol of statement and protocol of interrogation of Nonindicted 3, which the special prosecutor submitted as evidence at the lower court, was sentenced to the first instance judgment, and the special prosecutor appealeded to the effect that the lower court’s non-guilty portion against the Defendants, and the prosecutor summonedd Nonindicted 3 as witness or suspect during the investigation process of other cases while the trial was pending in the lower court. According to the above legal principles, Defendant 1 did not agree to the admissibility of the above protocol of statement and protocol of interrogation of suspect as evidence. Accordingly, the above protocol of statement and protocol of interrogation of suspect in this case are inadmissible. Accordingly, the lower court erred by misapprehending the legal doctrine on the protocol of statement and protocol of interrogation of suspect as evidence.

However, in the reasoning of the judgment, the court below merely admitted Nonindicted 3’s testimony in the court below as evidence, but did not consider the above protocol of statement and the protocol of interrogation as evidence for conviction. In light of the contents of Nonindicted 3’s statement in the court below’s court hearing and the circumstances surrounding the statement, etc., the admissibility and probative value can be acknowledged in Nonindicted 3’s statement in the court below’s court hearing.

Therefore, the lower court did not err by misapprehending the legal doctrine on admissibility and probative value, contrary to what is alleged in the grounds of appeal.

C. The legal doctrine on abuse of authority and obstruction of another’s exercise of rights in relation to exclusion of support from the culture and arts community 1)

The crime of abusing authority and obstructing another’s exercise of rights is established when a public official actually and specifically commits an unlawful or unjustifiable act in the form of exercising official authority concerning matters falling under general official authority.

The term "the abuse of authority" means that a public official exercises his/her authority in an unlawful and unjustifiable manner with respect to matters belonging to the general authority.

The criteria for determining whether a specific official’s act constitutes abuse should be determined by comprehensively taking into account whether a specific official’s act was conducted in accordance with the purpose for which the official authority was granted under the relevant statute, whether a specific official’s act was necessary and reasonable in light of the situation where the official act was performed, whether the exercise of authority satisfies the legal requirements that allow the exercise of authority (Supreme Court Decisions 2006Do339 Decided February 22, 2007; 2012.

1. Supreme Court Decision 2010Do11884 Decided 27, 201

B) The judgment of the court below

Defendant 1 as the Chief Secretary of the Office of the President (hereinafter referred to as the "Chief Secretary of the Office of Secretary") and the culture and arts community has reached an coordinate, and thus it is necessary to correct it. "The former President of the Office of Education (hereinafter referred to as the "former President")."

Accordingly, according to the purport, the Office of the Chief Secretary of the Office of the Office of the Office of the President (hereinafter referred to as the "Chief Secretary of the Office of the Office of the Office of the President") and the Office of the Chief Secretary of the Office of the Education and Arts, etc., and the Office of the Culture and Arts Promotion (hereinafter referred to as the "Arts and Arts Fund") ordered individuals and organizations applying for governmental support, such as the Culture and Arts Promotion Fund (hereinafter referred to as the "Arts and Arts Fund"), to exclude the application of support to various projects of the Arts Council, the Korean Film Council, and the Publication Promotion Agency of the Republic of Korea (hereinafter referred to as the "Arts and Arts Council"), to intervene in the selection process of the Person responsible for the Arts Council, on the grounds of the ideological inclination, political opinions, etc., and to which they were carrying out various projects of the Arts Council, the Film Council, the Korean Film Council, and the Publication Promotion Agency (hereinafter referred to as the "Arts and Arts Council"). In addition, these instructions were given a specific order to exclude the application of support.

Defendant 1’s above orders are contrary to the principles of cultural state, freedom of expression, equality, and the basic ideology of the Framework Act on Culture, such as diversity, autonomy, and creative creation of culture, which are the basic principles of the Framework Act on Culture, and thus are contrary to the Constitution and laws.

In the Culture and Arts Promotion Act, the regulations on the deliberation on support for projects for the Culture and Arts Promotion Act, the regulations on the deliberation of support for the Culture and Arts Promotion Act, the Promotion of Motion Pictures and Video Products Act (hereinafter referred to as the “Art. Video Act”), the Motion Pictures Promotion Regulations, the Publishing Industry Promotion Act, etc., the Government did not directly provide support for culture and arts, and had the Arts Council and the Film Council established separately under the relevant Acts and subordinate statutes decide on the matters concerning support without being subject to external interference in the course of performing their duties. The Publication Promotion Agency entrusted the implementation of projects for the selection and distribution of excellent books for the purpose of raising the desire for both publication and improving the people’s reading culture. This is an institutional device for realizing the above constitutional principles. Defendant 1’s foregoing instructions intervene in the process of determining whether to support the Arts Council, the process of determining whether to support the Film Council, the selection of the members responsible for the Arts Council, and thus infringe on the independence of the members of the Arts Council and Film Council, and do not fall under the scope of legitimate command and

Therefore, Defendant 1 abused the authority of the president, chief secretary, chief secretary, chief secretary, senior secretary general, senior secretary general, and minister of culture, sports, etc. in collusion with former president, chief secretary general, senior secretary general, senior secretary general of culture, sports, etc.

C) Judgment of the Supreme Court

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding abuse of authority and obstructing another’s exercise of rights, which constitutes the elements of establishment of the crime of abusing authority and obstructing another’

2) Legal principles as to whether a person has caused another person to perform an non-obligatory act

The crime of abusing authority and obstructing another’s exercise of rights is not immediately established solely with the fact that a public official abused his authority. The abuse of authority and obstructing another’s exercise of rights ought to result in the actual act of causing another person to perform an act that does not have any legal obligation, or obstructing another person’s specific exercise of rights, and the occurrence of such result ought to be caused by the act of abusing authority

4. Supreme Court Decision 2002Do3453 Decided October 11, 2012, and Supreme Court Decision 2010Do12754 Decided October 11, 2012, etc.

The phrase “allowing another person to perform an act that does not have an obligation” and “a person to interfere with another person’s exercise of rights” mean the result, which is an objective constituent element under Article 123 of the Criminal Act, that is, the crime of abusing official authority and obstructing another person’s exercise of rights. This is a separate element for establishing a crime that is distinct from “a public official’s abuse of official authority.” Therefore, it cannot be deemed that the act committed by a public official constitutes abuse of official authority and that the other party constitutes “an act that does not have an obligation.” Whether an abuse of official authority constitutes “an act that does not have an obligation” should be determined individually by examining whether the other party has a legal obligation to perform such an act, separately from whether the abuse of official authority was abused. If it is recognized that the abuse of official authority was unlawful that the abuse of official authority would immediately constitute an act that does not have an obligation, it would result in denying the identity of the requisite for establishing the crime, which is “when the exercise of rights was obstructed,” and it would also be contrary to equity.

Where the other party to abuse of authority is a private person, barring special circumstances, if the other party to the act of abuse of authority does not have an obligation to respond to the ex officio, so if he/she causes him/her to perform a certain act, he/she may fall under "when he/she causes him/her to perform a non-performance of obligation." However, in cases where the other party is a public official or an executive or employee of a public institution, etc. being assigned a certain public duty pursuant to statutes, whether he/she is not obligated to perform

An administrative organization must respond to the modern administration complicated, diversified, and specialized in day, while realizing a request for democracy. Accordingly, an administrative organization needs to have a uniform system structure and operate efficiently, operate in a democratic manner, and require close cooperation and reasonable coordination in order to achieve administrative purposes. 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 or exchange of opinions may be conducted not only between equal status but also between the supervisory organization and the responsible supervisory agency and the responsible supervisory agency. In this regard, it cannot be readily concluded that one party listens to the request of the other party and performs an act of responding to the request by either disclosing his opinion or cooperating with the other party, barring special circumstances.

Ultimately, if a public official abused official authority to allow a person to perform a certain act, and the other party is a public official or an executive or employee of a related agency, it is difficult to view that the case falls within the scope of duties in the form, content, etc., unless there is a violation of the principles, standards, procedures, etc. that should be observed in the course of performing duties in accordance with the statutes and other related regulations, barring special circumstances.

B) Based on its reasoning, the lower court determined that each of the acts listed in the column of "an act for which the public official of the Arts Council, the Film Council, and the Publication Promotion Agency (hereinafter referred to as "the crime list") in the attached table of crime No. 1, 2, 3, and 4 of the lower judgment was “an act for which the public official of the Arts Council, the Film Council, and the Publication Promotion Agency, who conspired with Defendant 1, etc., did not have any obligation” (hereinafter referred to as "each of the acts in this case") constitutes "an act for which the public official did not have any obligation."

(2) According to Articles 1, 3, and 51 of the Act on the Management of Public Institutions, the liability management system and autonomous operation of public institutions shall be guaranteed, and the head of the competent agency may supervise public corporations and quasi-governmental institutions only when statutes specifically stipulate the details and scope thereof so that autonomous operation of public corporations and quasi-governmental institutions may not be infringed.

Article 20 of the Culture and Arts Promotion Act provides that the Arts Council shall be established to support projects and activities for the promotion of culture and arts. Article 30 of the Culture and Arts Promotion Act specifically specifies the duties of the Arts Council.

The Arts Council shall be comprised of not more than 15 members commissioned by the Minister of Culture, Sports and Tourism from among those with abundant expertise and experience in culture and arts and with good reputation (Article 23). Members shall not be subject to any external instruction or interference during their term of office, and shall faithfully perform their duties for the diversity and balanced development of culture and arts (Article 29), and employees shall have a secretariat to assist the affairs of the Arts Council (Article 33). In light of the aforementioned legal provisions, employees of the Arts Council are deemed to belong to the Secretariat. In light of the aforementioned legal provisions, employees of the Arts Council are obliged to perform duties to assist the purpose and duties of the Arts Council prescribed by the aforementioned Act, and to perform duties assisting the members

Article 4 of the Motion Pictures and Video Act provides that the Film Council shall be established in order to improve the quality of motion pictures and promote Korean motion pictures and film industry. Article 14 specifically specifies the function of the Film Council. The Film Council shall be comprised of nine members comprised of nine members, who are appointed by the Minister of Culture, Sports and Tourism, from among those with abundant expertise and experience in the film arts, film industry, etc., taking into account the balance between performance, age, expertise, etc. (Article 8). Members shall not be subject to any instruction or interference in the performance of duties during their term of office (Article 13). A secretariat shall be established to assist the duties of the Film Council

Article 16 of the Publishing Industry Promotion Act provides that the Publication Promotion Agency shall be established in order to efficiently support the promotion and development of the publishing industry. Article 16-4 provides for the duties of the Publication Promotion Agency in detail.

In light of the contents of the aforementioned statutes related to the Arts Council, Film Council, and Publication Promotion Agency, employees of the Arts Council, Film Council, and Publication Promotion Agency have the legal duty to guarantee the independence of members of each of the above corporations in the performance of their duties and to assist each corporation in carrying out their business purposes autonomously. Therefore, if a person exceeds the scope of duties prescribed by such statutes or causes another person to engage in any conduct in a violation of the duties prescribed by the statutes, such act may constitute “when a person causes another person to engage in an act without any obligation” as prescribed by Article 123

Examining the reasoning of the lower judgment and the contents of the aforementioned legal principles and relevant provisions in light of the evidence duly admitted, the act of the culture and tourism public official to deliver an order of exclusion to the Arts Council, Film Council, and Publication Promotion Agency employees, the act of suspending business progress among each of the acts in this case, the act of assigning an order of exclusion to the Arts Council, the act of assigning an order of exclusion to the Arts Council, and the Arts Council employees until the implementation of the policy of exclusion of exclusion of support, the act of emphasizing the disadvantageous circumstances to the persons subject to exclusion of support, the act of transmitting the policy of exclusion of support to the Deliberation Committee members, the act of constituting the Deliberation Committee members to facilitate the duties of exclusion of support, the act of transmitting the matters to the Deliberation Committee members by excluding the persons subject to exclusion from support from the agenda, the act of delaying the examination of the Committee plenary meeting, the act of discovering the name of exclusion from support from support, the act of presenting opinions to the Deliberation Committee members, the act of presenting the reduction proposal in accordance with the direction, and the act of not notifying the employees and employees of the Arts.

Since it is in violation of the obligations under the law and regulations, it constitutes "when it makes another person perform an act without any obligation."

Therefore, the lower court did not err by misapprehending the legal doctrine on the act of obstructing the exercise of abuse of authority and thereby adversely affecting the conclusion of the judgment, contrary to what is alleged in the grounds of appeal, which found the Defendant guilty of this part of the facts charged by deeming each of the above acts as non-obligatory.

(3) However, it is difficult to accept the judgment of the court below as it is with respect to each of the acts in this case, which caused the delivery of various lists and the report on the progress of the public offering project from time to time.

According to the reasoning of the judgment of the court below, the employees of the Arts Council, the Film Council, and the Publication Promotion Agency sent the list of candidates for the responsible review committee members, the applicants for the public recruitment project, and the list of persons who passed the deliberation at each stage, as stated in the relevant column, to the public official in the culture and tourism, who does not have any obligation to be in charge of the affiliated organizations 1, 2, 3, and 4 of the list of crimes.

For the following reasons, the lower court determined that allowing the employees of the Arts Council, the Film Council, and the Publication Promotion Agency to commit the above acts by Defendant 1, etc. constituted “when having the employees of the Arts Council, the Film Council, and the Publication Promotion Agency engage in a non-obligatory act.” There is no direct statutory basis for the employees of the Arts Council, the Film Council, and the Publication Promotion Agency to send the above list to the Culture Council and to report the situation of the progress of deliberation at any time during the public recruitment projects. The above acts with Defendant 1, etc. against the employees of the Arts Council, the Film Council, the Film Council, and the Publication Promotion Agency who conspired with Defendant 1, etc. are unconstitutional and illegal acts as long as they were committed for the purpose of excluding the support to the specific persons on the grounds that they did not exercise legitimate supervisory authority over the projects of each of the above corporations, but that they engaged in political inclinations or critical activities with the government. The employees of the public officials or related agencies do not have any duty to comply with illegal official orders, thereby allowing the employees

However, in light of the legal principles as seen earlier, it cannot be readily concluded that the employees of the Arts Council, the Film Council, and the Publication Promotion Agency did not have any direct legal basis for sending the above list to the Culture Council, or that the instruction of the public official of the Culture Council who conspired with Defendant 1, etc. was unlawful, and thus, the act of Defendant 1, etc.’s order to the employees of the Arts Council, the Film Council, and the Publication Promotion Agency was an abuse of official authority. However, in determining whether the employees of the Arts Council, the Film Council, and the Publication Promotion Agency did not have any duty under the said instruction, the determination of whether the employees did not have any duty under the said order shall be made independently by the employees. As seen in the lower court, since the employees of the Arts Council, the Film Council, and the Publication Promotion Agency received supervision over the proper performance of business, the employees of the Arts Council have a duty to cooperate by reporting the progress of support projects, etc., and the employees of the Arts Council, other than the employees of the Arts Council, and Nonindicted 5, etc. of this part of the list of applicants for Publication was difficult.

The lower court should have determined whether the employees of the Arts Council, the Film Council, and the Publication Promotion Agency sent a list to the Culture Council in terms of business cooperation or exchange of opinions, etc., and reported the status of business progress to the Culture Council, what is the grounds therefor, and whether the act of sending a specific list as a day without any obligation under the instant facts charged and reporting the situation of the progress of deliberation are different from the act previously committed, by examining whether the act of reporting the specific list was in violation of the Acts and subordinate statutes, etc.

Nevertheless, the lower court, without examining and determining the above matters, determined that the aforementioned facts constituted a case in which the said facts constituted a case in which a person was immediately forced to perform a non-obligatory act, by misapprehending the legal doctrine on the non-obligatory act of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights, and

3) Where the number of crimes and accomplices continue to engage in several acts or conduct falling under the same criminal name for a certain period under the single and continuous criminal intent, and where the legal benefits from such damage are the same, each of them shall be punished by a single comprehensive crime. However, where the unity and continuity of criminal intent are not recognized or the method of committing a crime is not the same, each of them constitutes a single concurrent crime (see, e.g., Supreme Court Decisions 2005Do4051, Sept. 30, 2005; 2018Do10779, Nov. 29, 2018).

B) On the following grounds, the lower court recognized that Defendant 1 committed joint principal offenses with respect to the whole of the crime, on the following grounds: (f) of the crime of the lower judgment’s criminal facts2: (i) the deliberation on the support of the Culture and Arts Fund; (ii) the exclusion of the support of the Arts Promotion Project in 2015; and (iii) the exclusion of the exclusion of the support of the Arts Promotion Project in G; and (iv) the exclusion of the exclusion of the exclusion of the support of books from exercising one’s authority and obstructing another’s exercise of rights; and (iv) on that premise, determined that all of the crime of abusing authority and obstructing another’s exercise of rights was committed in accordance with Defendant 1’s instructions, “the details of the measure taken and management measures taken by Defendant 1; (iv) the implementation plan for the promotion and support of the sound culture and arts ecosystem; and (v) the direction of exclusion of the exclusion of the support was made by delivering a list of applicants for the public project, and thus, constitutes a blanket crime, since the legal interest protected by each project is the same.

C) Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, it is difficult to accept the lower judgment as it is.

Although the crime of abuse of authority and obstruction of another’s exercise of rights was committed according to “the details of the measures taken by the organization in question and the management plan,” “the promotion and support plan for the healthy culture and arts ecosystem,” and “the detailed implementation plan for the promotion of sound culture and arts ecosystem,” it was separately implemented by each institution through different public institutions, such as the Arts Council, Film Council, and Publication Promotion Agency. The projects implemented by the public institutions are different from the project executor, based statutes, the purpose of raising the fund, the purpose of the fund, the management and operation of the fund, the process of the establishment and implementation of the project plan, the procedure of application, examination and selection of the project, and the procedure and selection criteria for each project executor are different. In light of these circumstances, it is difficult to recognize the unity and method of crime committed by each project executor and each annual project with the approval of the Minister of Culture and Sports. Therefore, even if considering the circumstances cited by the lower court, it cannot be deemed a crime of interference with the exercise of rights as a whole.

In addition, the crime of abusing authority and obstructing another’s exercise of rights is an offense premised on the existence of official authority. Since official authority is either granted or deprived by the State’s exercise of power, if a public official retires from public office upon the order of the State, the relevant official’s retirement goes out of his/her duties and is publicly announced externally. Since Defendant 1 retired from public office on February 2, 2015, no such official authority exists thereafter, barring any special circumstance to deem that Defendant 1 continued to exercise substantial influence, etc., the crime committed before his/her retirement should be deemed not be held liable as an accomplice with respect to the crime after his/her retirement. The lower court should have deliberated on the foregoing circumstances, and have determined the scope of Defendant 1’s public invitation and functional control over the crime.

Nevertheless, solely on the basis of the foregoing circumstances, the lower court recognized the entire part of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights as a single comprehensive crime, and determined that Defendant 1 constituted joint principal offenders with respect to the whole of the foregoing facts. In so determining, the lower court erred by misapprehending the legal doctrine regarding

D. While the proviso of Article 68 of the State Public Officials Act does not apply to a public official of Grade 1 in relation to the demand for resignation of a public official of Grade 1 in the culture, sports, and tourism, he/she shall not be subject to leave of absence, demotion, or dismissal against his/her will pursuant to the proviso of Article 68 of the State Public Officials Act, a person who has the authority to appoint a public official of Grade 1 shall not be allowed to dismiss the public official of Grade 1 at the time of his/her dismissal, and shall have objective and reasonable grounds. Whether the public official of Grade 1 has objective and reasonable grounds for dismissal should be determined by taking into account the contents and nature of his/her duties, and circumstances leading to ex officio dismissal (see, e.g., Supreme Court Decisions 2001Du8902, May 17, 2002; 205Du

2) The lower court determined as follows. The submission of this letter of resignation, which is a public official of Grade I, Nonindicted 6, Nonindicted 7, and Nonindicted 8 (hereinafter “Nonindicted 6, etc.”) who is the public official of Grade I, was dismissed against his will substantially. Defendant 1 conspired with the former president, Defendant 5, etc. for the submission of the above letter of resignation on the ground that Nonindicted 6, etc. was the part of Nonindicted 1, the president of the Culture and Arts Council, who was a passive part of the enforcement of the order of exclusion from the provision of the above subsidies, and that he was also passive for the enforcement of the above order of exclusion from the provision of the subsidies. Defendant 1, etc. by abusing official authority, constitutes a case where Defendant 6, etc. caused Nonindicted 6, etc. to perform an act without any duty.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the status and dismissal of Grade 1 public officials, ex officio abuse of authority and non-performance of duties as stated in the crime of obstruction of another’s exercise of official right, or by exceeding the bounds of the principle of free evaluation of evidence in violation of

E. Perjury under the main sentence of Article 14(1) of the Act on Testimony, Appraisal, etc. before the National Assembly (hereinafter “National Assembly Testimony Act”) is an element for prosecution for accusation under Article 15 of the same Act. The National Assembly may establish a special committee by resolution of the plenary session, and if constituting a special committee, the period of its operation shall be fixed, and the period may be extended by resolution of the plenary session.

Where a special committee continues to exist until the expiration of the term of its activities, and the system and wording review was requested to the Legislation and Judiciary Committee pursuant to Article 86 of the National Assembly Act or a report on examination was submitted pursuant to Article 66, the relevant agenda is deemed to continue to exist until the plenary session passes a resolution at the plenary session (Article 44 subparag. 1, 2, and (3) of the National Assembly Act) and the special committee files an accusation against a witness on suspicion of perjury belongs to the activities of the special committee. Therefore, under Article 15 of the National Assembly Testimony Act of the National Assembly, an accusation against a witness should be filed during the period (including cases deemed to continue to exist) in which the committee continues to exist (see Supreme Court en banc Decision 2017Do14749, May 17, 2018). The lower court determined as follows.

1. On January 15, 2017, a document reported to the Speaker of the National Assembly on January 12, 201 can be deemed as a review report under Article 66 of the National Assembly Act, and even after the lapse of January 15, 2017, the term of activities of the State Council, the foregoing review report remains valid until January 20, 2017, when the agenda included in the review report was resolved at the plenary session. Since Defendant 1’s accusation against Defendant 1 was made on January 17, 2017, the foregoing accusation is lawful. 3) The allegation in the grounds of appeal disputing the determination of the lower court’s fact-finding, which actually belongs to the judgment of the fact-finding court, is disputing the lower court’s determination on the selection and probative value of the evidence and probative value. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine related to accusation under the National Assembly Testimony Act

Meanwhile, Defendant 1’s assertion that the above evidence was not presented is not a legitimate ground for appeal, since it was not related to the matters that Defendant 1 asserted as the grounds for appeal at the original trial or the lower court decided as the subject of judgment ex officio (see Supreme Court en banc Decision 2017Do16593-1, Mar. 21, 2019, etc.).

2. Judgment on Defendant 2’s grounds of appeal

A. The lower court, on the following grounds, determined that Defendant 2 conspiredd with other accomplices, including Defendant 1, and participated in the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights, and that Defendant 2 participated in the crime through functional control.

(1) At the time of Defendant 2’s appointment as the chief secretary general around June 2014, Defendant 2 prepared a plan and a scheme for the exclusion of support for a strike, etc. from the cultural and artistic circles, etc. in the Cheongbu pursuant to Defendant 1’s instruction. Defendant 2 was the chief secretary’s duties to ensure that the exclusion of support for a strike, etc. is made in the future. After that, in the process of performing his duties as the chief secretary general, Defendant 2 was aware of the fact that there was a review of the list to select the person eligible for exclusion of support at the request of the chief secretary office in the office of the Cheongbu, and thus, he can be deemed to have participated in the crime of this part of the facts charged through functional control.

(2) Defendant 2, with respect to the crime of refusing to request the △△△△△△△△△○○○○○○○○○○○○○○○, was committed by mutual recognition and sharing of the △△△△△△△△△△△ program at the general screening hall, including Defendant 1 and his co-offenders. Defendant 2, with respect to the crime of refusing to request the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, a functional control is recognized, such as strengthening mutual resolution among co-offenders through the joint response of the office chief secretary office and the principal secretary office to block the above △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and Defendant 2, with Defendant 1, etc., committed a combination of criminal intent by recognizing

B) The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding conspiracy and functional control in a collaborative crime, or by exceeding the bounds of the principle of free evaluation of evidence contrary to logical and empirical rules

2) Cheongdae documents submitted at the lower court’s trial on admissibility and probative value

The lower court determined that the evidence was admissible on the ground that the documents submitted by the special prosecutor to the lower court after being transferred by the special prosecutor via or directly from the prosecutor’s office cannot be deemed as having violated the Presidential Records Act or as having been collected by divulgence of public secrets.

Examining the reasoning of the lower judgment as seen above 1. B. 1) in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the Presidential Records Act and the crime of divulging official secrets, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal

B) On March 25, 2015, the part written out as "in the course of the meeting of the Chief Secretary General of the Office of Secretary General (hereinafter referred to as "the actual expenses")" among the results of the meeting.

On March 25, 2015, the lower court determined that the part, as the result of the meeting of the plenary session (Evidence No. 1385, No. 1385) on March 25, 201, stating “in the process,” was admissible as evidence in writing, which proves the fact itself stated as above.

According to the reasoning of the lower judgment, the lower court did not err in its judgment by using this part of the statement as hearsay evidence or by proving the authenticity of the content of the statement, contrary to what is alleged in the grounds of appeal.

C) On March 9, 2015, the implementation of the direction of the chief secretary and the countermeasures (drafts)

According to the records, Defendant 2 consented on March 9, 2015 during the fifth trial of the lower court to use the documents as evidence for the implementation of the instructions and measures (Evidence No. 1383, No. 1383) of the chief secretary secretary’s non-compliance with the instructions and measures (Evidence No. 1383). The lower court adopted the said documents as evidence on the same date. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

D) The written statement of Nonindicted 3, the protocol of interrogation of Nonindicted 3, the protocol of interrogation of Nonindicted 3, and the protocol of interrogation of Nonindicted 3, the protocol of interrogation of Nonindicted 3, the protocol of interrogation of the court below, and the protocol of interrogation of Nonindicted 3, as seen above, included the contents unfavorable to Defendant 2 as to the facts charged in this case, and Defendant 2 did not agree that the above protocol of interrogation and the protocol of interrogation of the suspect were admitted as evidence in this case. However, in the reasoning of the judgment, the court below merely admitted Nonindicted 3’s written statement and the protocol of interrogation of the defendant were admitted as evidence, and did not use the above protocol of interrogation and the protocol of interrogation as the ground for finding the guilt. Since the admissibility and probative value can be acknowledged in Nonindicted 3’s written statement and the protocol of interrogation of the suspect, contrary to what is alleged in the grounds of appeal, the court below erred by misapprehending the legal principles on admissibility and probative value, etc., or exceeding the bounds of the principle

3) Abuse of official authority

The lower court determined that the crime of abusing authority and obstructing another’s exercise of rights was established as a substantial unlawful act committed by Defendant 2, in collusion with the former president, Defendant 1, etc., on matters belonging to the general authority of the president, the chief of the secretary general, the chief of the secretary general, the chief of the secretary general, and the minister of the culture, Sports and Tourism, etc. regarding

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the subject and scope of general authority and authority, failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

The lower court determined that Defendant 2 constituted joint principal offenders on the premise of the recognition of the entirety of the charges of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights as a single comprehensive crime, such as deliberation on support of literature and art fund, and the exclusion of support for art films in 20

However, as seen in the above 1. C. 3, the entire crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights in the above part cannot be deemed an inclusive crime. In addition, barring any special circumstance to deem that Defendant 2 continued to exercise a functional control over the crime publicly recruited after his retirement from May 2015, Defendant 2 should not be held liable as an accomplice for the crime after his retirement, unless there are any special circumstances to deem that Defendant

After examining the above circumstances, the lower court should have determined the scope of Defendant 2’s solicitation and functional control.

Nevertheless, the lower court recognized the entire part of the crime of abusing authority and obstructing another’s exercise of rights as a single comprehensive crime, and determined that Defendant 2 constituted a joint principal offender with respect to the whole of the above crimes on the premise thereof, erred by misapprehending the legal doctrine regarding blanket crimes and joint principal offenders, and by

B. Violation of the National Assembly Testimony Act

The lower court determined as follows. Defendant 2 testified to the effect that Defendant 2 did not exist in the inspection of the state administration in 2016 on October 13, 2016 of the Educational, Cultural, and Tourism Tourism Committee’s culture, sports and tourism commission, etc.; Defendant 2’s oath on October 13, 2016 at the inspection of the state administration in the year 2016, was involved in or was not in the preparation of the black list; and Defendant 2’s testimony to the effect that he was a chief secretary at the first hearing on November 30, 2016, and was not engaged in any business affairs under his jurisdiction; and he was not aware of such facts. Defendant 2’s testimony to the effect that he testified constitutes perjury against memory. The oath on October 13, 2016 at the inspection of the state administration also affects the inspection of the state administration.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belong to the free judgment of the lower court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding false statements and oath, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3. Judgment on Defendant 3’s grounds of appeal

A. The lower court determined as follows. Defendant 3, as the chief secretary of the Presidential Secretariat, assisting the president in the duties of the president in relation to Nonindicted 9, directly delivered the former president’s order to submit a letter of apology to Nonindicted 9, to the Minister of Culture, Sports and Tourism, and Nonindicted 9, and Defendant 3’s functional control over the crime of abusing authority and obstructing another’s exercise of rights is recognized. Defendant 3’s functional control over the crime of abusing authority and obstructing another’s exercise of rights is recognized, since the former president’s order to submit the said letter of resignation, Defendant 3’s order to submit the said presidential order to the Minister of Culture, Sports and Tourism, and the submission of a letter of resignation to Nonindicted 9 is an act that falls under the general duties and authority of the president, the chief secretary of the B/L, and the Minister of Culture, Sports and Tourism. Accordingly, Defendant 3 in collusion with the former president, and thus, constitutes a crime of abusing authority and obstructing another’s exercise of rights as to the general duties of the president and the chief secretary of the B/L.

2) Examining the reasoning of the lower judgment in light of the evidence duly admitted, contrary to what is alleged in the grounds of appeal, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights, the joint principal offender

B. Abuse of official authority and obstruction of another’s exercise of rights regarding exclusion of support for culture and arts community

The lower court determined as follows. Defendant 3’s act, as the chief of the teaching place, is recognized as an unjust entry, such as the support deliberation of the literature and art fund, the reduction of subsidies for the Dol International film festivals, the exclusion from support to the person responsible for the management of the Dolan International Film, and the solicitation and functional control over the crime related to the book in 2015. Defendant 3’s act constitutes an abuse of official authority in collusion with the former president, the chief of the secretary general, the chief of the secretary general, and the chief of the teaching place.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding ex officio of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and functional control, or by exceeding the bounds of the

2) As seen in the above 1.c. 2(b) as seen in the above, it did not err by misapprehending the legal doctrine regarding the non-obligatory of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights, deeming that the lower court’s act of having Defendant 3 send various lists among the non-obligatory acts as stated in this part of the facts charged, and that the remaining acts except for having Defendant 3 report on the progress of deliberation at any time during the public contesting project constituted “when the lower court committed an act without any obligation.

However, the determination that the act of sending various lists and of having reported the progress of deliberation from time to time during the process of a public contest constitutes “where a person does not have any obligation” is erroneous in the misapprehension of legal principles as to non-performance of the duty of abusing authority and obstructing another’s exercise of rights, and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Judgment on Defendant 5’s grounds of appeal

A. Demanding abuse of authority and obstruction of another’s exercise of rights and resignation of a Grade 1 public official

The lower court determined that Defendant 5’s demand for resignation of the public officials of Grade I in collusion with Defendant 1, etc. constitutes the crime of abusing authority and obstructing another’s exercise of rights.

1. As seen in the above 1. D, the lower court did not err in its judgment that found the Defendant guilty of this part of the facts charged, by misapprehending the legal doctrine regarding the status and dismissal of Grade 1 public officials, abuse of authority and abuse of authority and obstructing another’s exercise of rights as stated in the State Public Officials Act, and non-performance of obligations, etc.

The lower court determined that the crime of abusing authority and obstructing another’s exercise of rights was established for ordering the Minister of Culture, Sports and Tourism to refrain from providing support to Nonindicted 10 and Nonindicted 11 to point out the unfavorable circumstances against a person subject to exclusion of support on the ground that the order was an unlawful and unfair measure that does not fall under the scope of the right to direct and supervise the Publication Promotion Agency.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on ex officio and non-obligatory obstruction of another’s exercise of rights, or by omitting judgment.

B. Violation of the National Assembly Testimony Act

On December 15, 2016, the lower court determined that Defendant 5’s testimony to the effect that there was no separate report on 'booming fact' by attending the fourth hearing on December 15, 2016, which was held by Defendant 5 as a witness, and that it constitutes perjury by a false statement contrary to memory.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on perjury, intentional act, etc., omitting judgment, or exceeding the bounds of the principle of free evaluation of evidence in violation

5. Judgment on Defendant 6’s grounds of appeal

(a) Joint principal offender of the crime of abusing authority and obstructing another;

1) The lower court determined as follows. Defendant 6, as the chief secretary of the office of political affairs, examined those subject to exclusion by receiving the list of candidates for the members of the Arts Council responsible deliberation committee (hereinafter referred to as the "members of the office of political affairs"). Defendant 4, who is the chief secretary of the office of political affairs, was in charge of the implementation of a non-governmental subsidy scke team and the preparation of documents, "the details of measures taken and management plan" as the result thereof, and requested Defendant 7, who is the chief secretary of cultural and sports affairs (hereinafter referred to as the "chief secretary of cultural affairs") to examine and select the list of exclusion by the provision of subsidies in accordance with the projects, such as the Culture and Arts Fund. In light of these circumstances, Defendant 6 said that Defendant 7, the senior secretary of political affairs, the secretary of political affairs, requested Defendant 7, who is the chief secretary of the office of political affairs, to be in charge of the provision of subsidies to the members of the office of political affairs. In view of these circumstances, Defendant 1 may be deemed to have participated in the functional control and conduct.

2) The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the intent to jointly process a co-principal, functional control of a functional act, and the crime of abusing authority and obstructing another’s exercise of rights, or by exceeding

B. As seen in the number of crimes and the charges of accomplices, as seen in the above 1. C. 3, illegal interventions, such as the deliberation on the support of the Culture and Arts Fund, exclusion from the support of the Arts and Arts Promotion Project in 2015, and exclusion from the provision of island-related support cannot be deemed a single comprehensive offense. Therefore, the lower court should have deliberated and decided on the scope of Defendant 6’s solicitation and functional control over the conduct, by comprehensively taking into account the circumstances in which Defendant 6 was assigned from the communication secretary to the position as a secretary in charge of party affairs, and specific acts that may be seen as

Nevertheless, the lower court recognized the entire part of the crime of abusing authority and obstructing another’s exercise of rights as a single comprehensive crime, and determined that the joint principal offender is established under the premise thereof, by misapprehending the legal doctrine regarding the single comprehensive crime and joint principal offender, and by failing

6. Judgment on Defendant 7’s grounds of appeal

A. The lower court determined that Defendant 7 conspiredd with Defendant 1 and Defendant 2 to commit an unfair act, such as the provision of the Culture and Arts Fund support deliberation, and that Defendant 7’s crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights, on the grounds that Defendant 7’s delivery of Defendant 6’s “the content of the measures taken and the management plan” from Defendant 6, and Defendant 7’s explanation of the content, Nonindicted 12, as a secretary of communication, in the project of

the court determined that the act constitutes section 1.

2) The allegation in the grounds of appeal in this part is the purport of disputing the fact-finding and judgment of the lower court, and is practically disputing the judgment on the selection and probative value of evidence belonging to the lower court’s free judgment. While examining the reasoning of the lower judgment in light of 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, contrary to what is alleged in

B. The lower court determined as follows. Defendant 1’s order: (a) the head office and the principal office of the △△△△△△△△△△△△△△△△ Group refused to request the exhibition of the △△△△△△△△△△△△△△△△△; (b) Defendant 2, the chief officer of the △△△△△△△△△△ branch, in consultation with the senior secretary in charge of communication, consulted on the issue of screening the △△△△△△△△△△△△△△△△△△△△△△, which is considered as the senior secretary, and shared the report on the promotion of the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, which was considered as the senior secretary in charge of the △△△△△△△△△△△ branch; and (c) jointly responded to Defendant 2’s implementation of the △△△△△△△△ policy, including Defendant 7’s decision on the exclusion of exclusion of the △△△△ branch.

2) The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the conspiracy and functional control of the crime of abusing authority and obstructing another’s exercise of rights, or by exceeding the bounds of the free evaluation

C. As seen in the number of crimes and accomplice’s charges, as seen in the above 1. C. 3, illegal interventions, such as the deliberation on support of the Culture and Arts Fund, exclusions from support of the artistic film in 2015, and exclusions from support of books cannot be deemed as a single comprehensive offense of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights. The lower court recognized the entire part of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights against Defendant 7 as a single comprehensive offense of

7. Determination on the grounds of appeal by the special prosecutor

(a) coercion;

The crime of coercion is a crime that interferes with the exercise of a human right by violence or intimidation or has another person do an act that is not obligated to do so. Here, intimidation refers to objectively restricting the freedom of decision-making or notifying a harm and injury likely to cause such a threat to interfere with the freedom to enforce the will. For such a intimidation to be recognized, there must be a concrete threat of harm and injury to the extent that may be considered possible. When an actor makes a demand to the other party based on his occupation or status, whether the act constitutes a threat of harm and injury as the means of coercion ought to be determined by taking into account not only the offender’s position but also the content and developments leading up to the act and behavior, the situation at the time of the demand, and the character, career, and mutual relationship between the offender and the other party, whether the other party has the awareness that the act was a threat of harm and injury if the other party refuses to comply with the demand, and whether the offender and the other party can reasonably have perceived or anticipated the harm and injury that may be likely to act as the other party (see, e.g., Supreme Court en banc Decision 2018Do18).

The first instance court found the Defendants not guilty on the grounds that there was insufficient proof that the Defendants informed of harm and injury likely to be frighten to the extent that they limit the freedom of decision-making of the other party or interfere with the freedom of decision-making or interfere with the execution of decision-making, taking into account the following: (a) the specific situation at the time when the request for resignation or the order for exclusion of assistance was made with respect to each part of the facts charged in the instant case; (b) the details of the demand and statement; (c) the position, career, resignation or exclusion of the requesting party and the other party; and (d) the background leading up to the selection of a specific person or a specific organization

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding intimidation in the crime of coercion, or by exceeding the bounds of the principle of free evaluation of evidence.

B. Abuse of official authority and obstruction of another’s exercise of rights 1) The selection of a member of the Arts Council’s responsibility review committee against Defendant 6

The lower court determined that there was no evidence to readily conclude that Defendant 6 was aware of, or was involved in, the fact that, prior to Defendant 4’s receipt of the list of candidates for the members of the Arts Council, Defendant 6 instructed the Arts Council to exclude a specific person from the selection of a candidate based on political inclinations, etc. from among candidates for the members of the responsible deliberation committee, Defendant 6 was aware of, or participated in, the list of candidates for the members

The allegation in the grounds of appeal in this part is the purport of disputing the fact-finding and judgment of the lower court, and is practically disputing the lower court’s determination on the selection and probative value of evidence, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the records, the lower court’s determination deviates from the bounds

No error may be found.

2) The lower court determined that Nonindicted 2-1-2-5-2-6-1-2-6-2-6-2-8-2-6-2-8-2-8-2-1-2-3-2-8-2-1-2-3-2-4-2-8-2-1-2-3-2-8-2-3-2-4-1-2-3-2-3-2-4-2-8-2-1-2-3-2-4-2-1-2-3-2-4-2-3-2-4-2-4-1-2-3-2-4-2-5-2-1-2-1-2-4-2-6-2-1-2-6-1-2-8-2-1-2-3-7-14-2 and-4-15-14-6-2-14-7-2 and 14-15-2

In addition, the lower court determined that it is insufficient to recognize that Nonindicted 16 emphasized and delivered to the Review Committee members any unfavorable circumstance in relation to Defendant 1’s business from 24, 25, 27, 40 through 45, 47, 59, 106 through 114, 116 through 134, and 191 through 195, among the facts charged regarding unjust interventions, such as the support for the Culture and Arts Fund, to the effect that Nonindicted 16 took advantage of the circumstances unfavorable to the Review Committee members.

B) The allegation in the grounds of appeal in this part is purporting to dispute the fact-finding and judgment of the lower court, and is practically disputing the lower court’s determination on the selection and probative value of evidence belonging to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence

3) The lower court determined as follows. Defendant 2, Defendant 5, and Defendant 6 participated in the process of ordering and approving a plan or functional control of a functional act in the process of: (a) Defendant 2’s postponement of deliberation on the support project for the exclusive use of art films by the Film Council was on April 24, 2014, which was before Defendant 5 was appointed as the chief secretary of political affairs or Defendant 5 was appointed as the minister of culture, Sports and Tourism; and (b) Defendant 2, Defendant 5, and Defendant 6 participated in the process of excluding support for the five exclusive use of art films, including the ▽▽▽▽▽▽▽▽△△△△, based on the new examination criteria set up by the Film Council; and (c) Defendant 2, Defendant 5, and Defendant 6 participated in the process of

It is insufficient to prove that this part of the facts charged is the relation between abuse of authority and obstruction of another’s exercise of rights and a single comprehensive crime, such as the deliberation on support of the Culture and Arts Fund, which found guilty.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding blanket crimes and joint principal offenders, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

4) Defendant 6’s refusal to request the ○○○○○○○ △△△△△ Party screening, reduction of subsidies for △△ International film festivals, and exclusion from the assistance of the Director General of the △△△

The lower court determined that Defendant 6, who was a party secretary, did not have engaged in the solicitation and participation in the promotion of the △△△△△△△’s motion picture festivals support or the exclusion of support for film theaters, such as a lawsuit, by means of sanctions against the refusal of the △△△△△△△△△△, in the OO, and that this part of the facts charged did not constitute a crime of abuse of authority or obstruction of another’s exercise of rights, such as deliberation on the support of the

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding blanket crimes and joint principal offenders, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

C. Violation of the National Assembly Testimony Act

On December 15, 2016, the lower court determined that it is difficult to readily conclude that Defendant 5 testified as a perjury when he was present as a witness at the fourth hearing for the special assistance of the State around December 15, 2016, and Nonindicted 26’s remarks by Nonindicted 26 Chairman on the dismissal of Nonindicted 25 Members.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine regarding the violation of the National Assembly Testimony Act, or by exceeding the bounds of the principle of free evaluation of evidence

D. The special prosecutor filed an appeal against the remaining portion of the conviction, but there is no indication in the petition of appeal or the grounds of appeal as to the appeal.

8. Scope of reversal

Of the guilty portion of the lower judgment, the part of the lower judgment regarding Defendant 1 and Defendant 3’s act of ordering them to send various lists related to the exclusion of support from the culture and arts community, abuse of authority and obstruction of use of rights, Defendant 1, Defendant 2, Defendant 6, and Defendant 7 to report the progress of deliberation during the public offering project, unjust intervention of the part concerning exclusion from support from the culture and arts community, such as deliberation on the grant of the Culture and Arts Fund, in 2015, and the part concerning exclusion from the grant of support from the arts film in 2015 should be reversed. The grounds for reversal of each part of the lower judgment should also be reversed pursuant to Article 392 of the Criminal Procedure Act, since the aforementioned part of the lower judgment is common to the part of the crime of abusing authority and obstruction of use of rights against Co-Defendant 1 and 3, Defendant 4, Defendant 7, Defendant 2, Defendant 5, and Defendant 6 of the Criminal Act. In the end, the part of the lower judgment’s conviction should also be reversed.

9. Conclusion

The remaining grounds of appeal are omitted. Of the judgment of the court below, the part against Defendant 1, Defendant 3, Defendant 4, and Defendant 7 and the part against Defendant 2, Defendant 5, and Defendant 6 guilty (including the part on acquittal of the grounds) are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The special prosecutor’s appeals on the remainder of Defendant 2, Defendant 5, and Defendant 6 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by Justice Jo Hee-de on admissibility of evidence, a separate opinion by Justice Park Sang-ok on the crime of coercion’s abuse of rights and obstructing another’s exercise of rights, and a dissenting opinion by Justice Park Jung-hwa, Justice Min You-sook, Justice Min You-sook, Justice Kim Seon-soo, and Justice Noh Jeong-hee on the crime of coercion, and a concurrence with the Majority Opinion by Justice Park Jung-hwa

10. Concurrence by Justice Jo Hee-de regarding admissibility of evidence

A. The lower court found the Defendants guilty of the crime of abusing authority and obstructing another’s exercise of rights on the grounds that the special prosecutor adopted the Cheongdae documents submitted to the lower court by the special prosecutor as evidence, and based on the contents indicated in the Cheongdae documents, and acknowledged that the former president or Defendant 1, etc. made an instruction and statement in the presidential secretary meeting (hereinafter referred to as “number expenses”) and in the Cheongdae documents, the former president or Defendant 1, etc. were guilty of the crime of abusing authority and obstructing another’s exercise of rights. However, since the Cheongdae documents were collected without following due process, it should be deemed that they were inadmissible, and the said evidence obtained therefrom should also be deemed as inadmissible. The lower court recognized the Defendants of the crime of abusing authority and obstructing the exercise of rights by using the Cheongdae documents

Therefore, it is difficult to agree with the majority opinion that held that the Cheongdae documents are admissible as evidence.

B. Relevant legal principles 1) The principle of exclusion of illegally collected evidence

Article 308-2 of the Criminal Procedure Act provides that "Any evidence obtained without following due process shall not be admitted as evidence" as the title "excluding illegally collected evidence". This is to stipulate the principle of exclusion from illegally collected evidence in order to realize the constitutional ideology of guaranteeing fundamental human rights of the people by preventing illegal acts in the investigation process, including illegal seizure and search, and preventing recurrence.

In addition, in cases where evidence is collected based on an illegal act that does not comply with due process, the admissibility of secondary evidence acquired based on such evidence as well as the relevant evidence should also be denied (see Supreme Court Decision 2010Do2094, Mar. 14, 2013). 2) Guarantee of fairness in the performance of duties by a prosecutor or a special prosecutor.

Article 195 of the Criminal Procedure Act provides that "Any investigator, police officer, senior superintendent, superintendent general, superintendent, superintendent, superintendent, and superintendent shall investigate any criminal facts and evidence when he/she believes that there is a suspicion of a crime." Article 196 of the same Act provides that "The investigator, judicial police officer shall be instructed by a prosecutor with respect to all investigations as a judicial police officer." Article 195 of the same Act provides that "The judicial police officer shall comply with the direction of a prosecutor." In addition, Article 246 of the same Act provides that "the prosecution shall be instituted by a prosecutor."

Article 4 of the Public Prosecutor's Office Act provides for detailed authority and duties concerning the organization of the public prosecutor's office and investigation procedures of the public prosecutor's office, and Article 8 of the National Assembly Act provides that "the Minister of Justice shall generally direct and supervise the public prosecutor's office as the chief supervisor of the public prosecutor's office, and shall direct and supervise the public prosecutor's office, and shall direct and supervise only the Prosecutor's office with respect to specific cases." Article 12 (3) of the same Act provides that "the term of office of the Prosecutor's office shall be two years, and the public prosecutor shall not be reappointed." Article 65-2 (2) 1 of the National Assembly Act provides that "the public prosecutor's office shall require a personnel hearing of the National Assembly against the candidate of the National Assembly."

Article 2 (1) 1 of the Act on the Appointment, etc. of Special Prosecutors provides that "the case that the National Assembly has resolved at the plenary session that requires the investigation of the special prosecutor for political neutrality, fairness, etc." shall be subject to the investigation of the special prosecutor, and Article 6 of the same Act provides that "the special prosecutor shall maintain neutrality and perform his/her duties independently." In addition, Articles 7, 8, and 9 of the Criminal Procedure Act and the Public Prosecutor's Office Act apply mutatis mutandis to the special prosecutor and the special prosecutor's report.

Article 1 of the Special Inspection Act, which applies to this case, provides for the matters necessary for the appointment and duties of the special prosecutor who has an independent position for the purpose of ascertaining the truth of the case of the last secretary-general, etc., and Article 5 provides that "the special prosecutor shall maintain political neutrality and perform his duties independently." In addition, Articles 6, 7, and 8 provide that the Criminal Procedure Act and the Public Prosecutor's Office Act apply mutatis mutandis to the special prosecutor and the special prosecutor's office.

As above, the legal system of the Republic of Korea, including the Constitution and the Criminal Procedure Act, grants strong authority to conduct an investigation and prosecution to a public prosecutor, and to institute and maintain an investigation and prosecution by a public prosecutor in order to ensure the fair exercise of the authority vested in the public prosecutor is an institutional guarantee so that the public prosecutor’s authority may be exercised without interference with the President as much as possible with the Minister of Justice where the public prosecutor’s office is affiliated. In addition, the fairness of such duties is equally applied to the special prosecutor or the special prosecutor’s assistant, and as seen above, the special prosecutor’s political neutrality and independence of the duties are guaranteed by the law. 3) The admissibility of evidence collected by the public prosecutor or the special prosecutor’s authority should be lawfully exercised in accordance with the procedure stipulated in the Criminal Procedure Act, the Constitution, and the Criminal Procedure Act. As such, as prescribed in the relevant Act and subordinate statutes, the public prosecutor or the special prosecutor summonss a suspect and the witness obtained by the public prosecutor or the special prosecutor’s office based on the warrant issued by the public prosecutor and the special prosecutor’s authority, regardless of the authority and evidence.

It should be considered that there is no admissibility.

If such act of the President, the Presidential Secretariat, or the Executive Bureau is permitted, the possibility of abusing certain persons or senior public officials to be punished for political retaliation by taking advantage of the strong administrative power of the President, the Secretariat, and the Executive Bureau receiving their instructions may not be ruled out. This is because it substantially infringes upon the special prosecutor’s duties, duties, fairness, and political neutrality to be exercised fairly in accordance with the law, and the special prosecutor’s authority to perform duties independently and independently, and thus is in violation of the above law, and thus, cannot be permitted.

C. Determination

1) On March 10, 2017, the former president was removed from office by the Constitutional Court’s impeachment. On May 10, 2017, the former president was appointed by the President on the 19th President on May 10, 2017. The President Park Jae-in, who was the first task of the 100th National Assembly, analyzed the status of the 10th National Assembly movement and thoroughly maintained public prosecutions in cases where he was prosecuted by forming the Switzerland team for each Ministry as the first task of the 100th National Assembly task, and requested the investigation agency to investigate the past history of the National Assembly's political opening of the National Assembly, etc., and requested the investigation agency to make the current status of the Switzerland Team's political opening of the National Assembly, etc. and the investigation agency related to the 2017th National Assembly members, including Nonindicted Party 27, which was the 2017 Ministry members of the Ministry of Patriots and Veterans Affairs.

2) The lower court recognized the following evidence. (A) On August 10, 2017, the files (Evidence No. 1352-1379, No. 1402-1406, evidence No. 1352-1406, evidence No. 1352-2, and the results of the conference and the conference-based files, which were found in the official database of the presidential secretary No. 2 attached to the presidential secretary No. 2, were stored in the joint database of the computer, as they were sent by the planning secretary from the planning secretary at the office No. 2 assistant secretary at the time of the former president. The present presidential secretary provided the relevant file to the prosecutor, and the prosecutor provided the special prosecutor with a copy of the file output, and the special prosecutor submitted them as evidence to the lower court.

B) Documents found as a result of the plenary session held by the senior secretary general (Evidence Nos. 1381, 1382, 1384-1401, and 1384-1401, and documents found in the form of paper documents on March 9, 2015 (Evidence No. 1383, No. 1383) and on July 14, 2017 (Evidence No. 1383, No. 1383) were prepared after the completion of the plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s plenary session’s st.

C) The documents of the meeting of the secretary of the office for the secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office (Evidence No. 1380, No. 1380), the planning secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary of the office for secretary

D) Statement, protocol of examination of suspect, and court statement

The public prosecutor of the Seoul Central District Public Prosecutor’s Office investigated the alleged suspicion of the so-called “The Doluri case” that the Presidential Secretariat had Nonindicted 28 of the Korean Economic Association grant subsidies to the remuneration civic group, and prepared a written statement or an examination of suspect regarding Defendant 3, Defendant 4, Defendant 6, and Nonindicted 29 of the former presidential secretary, Nonindicted 30 of the former presidential secretary, Nonindicted 29 of the former presidential secretary, Nonindicted 2, and Nonindicted 31 of the former presidential secretary on policy adjustment. The special prosecutor submitted the above written statement and the examination of suspect to the court below as evidence. In addition, in the court below, the examination of witness was conducted with the content of the Cheongdae documents.

3) The present presidential secretary directly provided the documents of the Cheongdae and the documents of the Cheongdae, the protocol of interrogation, the protocol of interrogation, and the admissibility of the legal statement, within the presidential secretary office, to the public prosecutor or the special prosecutor, and the special prosecutor submitted them to the lower court. In addition, under the premise that the documents of the Cheongdaedae are admissible, the lower court adopted the documents of the Cheongdae and the written statement and the protocol of interrogation of the Defendants and relevant witnesses as evidence, and examined the witnesses in the court, and examined the contents of the Cheongdae documents to the witness.

Based on the facts, the former president was detained by the Constitutional Court’s ruling of impeachment, and the former president was already pending in the appellate court.

In this case with respect to the Defendants, documents from Cheongdae, which recorded the statements made by the former president and Defendant 1 in the office expenses of the former president and in the office expenses of the former president, were used as evidence of guilt. The current office staff appointed by the former president, who was appointed after the impeachment of the former president, provided documents from Cheongdae to the special prosecutor for whom the prosecution was maintained against the Defendants, and the special prosecutor submitted as evidence to the lower court cannot be permitted to infringe on the special prosecutor’s fairness, political impartiality, and independence in the special prosecutor’s duties by interfering with the special prosecutor’s investigation and the right to maintain public prosecution that should be maintained political neutrality and fairness. After the special prosecutor instituted a public prosecution and the first instance court acquitted the Defendants, the presidential office assisting the former president, who is the highest power of the Republic of Korea, was actively affiliated with the office of the former president, or the president who was the minister of the Republic of Korea, to provide large number of documents and expenses as evidence for conviction to the special prosecutor in order to determine the Defendants, because it ought to maintain the fairness and independence of the special prosecutor’s authority, and intentionally intervene in the political impartiality.

B) Therefore, the Cheongdae documents are inadmissible as it constitutes illegally collected evidence, which is not in compliance with the lawful procedure, and it is not admissible as evidence. The interrogation protocol, statement, and court statement of the Defendants and witnesses based on such evidence are not admissible as secondary evidence. Nevertheless, the lower court used the Cheongdae documents and the above evidence based thereon as evidence of conviction, and it seems that many facts charged that were found not guilty in the first instance court due to such evidence were altered in the lower court’s conviction.

C) Therefore, the lower court erred by misapprehending the legal doctrine on the principle of exclusion of illegally collected evidence under Article 308-2 of the Criminal Procedure Act, thereby adversely affecting the conclusion of the judgment.

D. Conclusion

In this regard, the lower judgment convicting Defendant of the crime of abusing authority and obstructing another’s exercise of rights cannot be reversed. Moreover, the part on the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights and the part on the crime of concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, among the lower judgment, the part on Defendant 1, 3, 4, and 7 and the guilty part on Defendant 2, 5, and 6 (including the part on acquittal of the reasoning) of the lower judgment should be reversed

As above, I express my Concurrence with the Majority Opinion that the judgment of the court below should be reversed, but with different reasons for reversal.

11. Concurrence by Justice Park Sang-ok regarding the crime of abusing authority and obstructing another’s exercise

A. The Majority Opinion determined that: (a) unilaterally excluding government subsidies, such as literature and art funds, which are stipulated in the Act, without following the normal procedure prescribed in the Act, on the grounds that a specific individual or organization has a political or ideological inclination different from that claimed by the government in the area of culture and arts; (b) or that a specific individual or organization has expressed an opposing or critical position against the government’s policies, or that they are sharing political or ideological inclinations with the government; (c) is contrary to the principle of a cultural state adopted by the Constitution, the freedom of political expression, and the principle of equality; and (d) is in violation of individual statutes, such as the Framework Act on Culture that embodys the above constitutional principles; and (e) ordering and approving the Defendants to exclude support to a specific individual or organization; and (e) determined that the employees of the Arts Council, Film Promotion and Publication Promotion Agency did not perform some duties due to the Defendants’ abuse of authority. However, the Majority Opinion’s grounds and conclusion are inconsistent with the principle of no punishment without law and the basic principles of criminal law regarding criminal system and constituent elements.

B. Requirements for organizing crime of abusing authority and obstructing another’s exercise of rights

In order to satisfy the constituent elements of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights under Article 123 of the Criminal Act, all of the facts that a public official abused his authority and caused another person to commit an act not obligated

However, since the crime of abusing authority and obstructing another’s exercise of rights is the constituent elements of a broad broad interpretation, such as “ex officio, abuse,” and “duty,” the principle of strict interpretation and the principle of minimum infringement should be observed in accordance with the principle of no punishment without law, which is the major principle of criminal law declared in Article 13 of the Constitution, when interpreting and applying the same. On the premise of this, we examine the nature and nature of the crime of abusing authority and obstructing another’s exercise of rights.

C. Breach of duty under the Constitution and the execution of policy and abuse of official authority

The abuse of official authority refers to the exercise of authority by a public official illegally and unreasonably with respect to matters falling under general official authority (see Supreme Court en banc Decision 2018Do13792, Aug. 29, 2019). The Majority Opinion determined that the Defendants’ instructions given to employees of the Arts Council, Film Council, and Publication Promotion Agency are unconstitutional in violation of the principles of a cultural state, the freedom of expression, the principle of equality, and the fundamental ideology of the Framework Act on Culture, contrary to the basic principles of cultural diversity, autonomy, and creativity of culture, which are the fundamental principles of the Framework Act on Culture, based on the following: (a) whether a specific public official’s act of abuse of authority was conducted in accordance with the purpose of granting official authority; (b) whether a specific public official’s act of performing his/her duties was necessary and reasonable when considering the circumstances where his/her duties were performed; and (c) in this case, whether an order given by the

Considering that the abuse of authority by the Defendants is not only the specific duties prescribed by the law, but also the authority pertaining to matters falling under the general authority and authority, the logic of the majority opinion that the exercise of authority constitutes an unlawful and unjustifiable exercise of authority because it is a duty that does not comply with the basic ideology of the Constitution or the legislative purpose of a specific Act without specifying the violation of any legal obligation. In particular, in the case of a high-ranking public official whose scope of general authority and authority is wide, the scope of application of the crime of abusing authority and obstructing another’s exercise of

The criminal facts of the crime of abusing authority and obstructing another’s exercise of rights, which the court below acknowledged, are excluded from the scope of support by ordering the employees of the Arts Council, Film Council, and Publication Promotion Agency, and the Culture and Arts Promotion Act, the Motion Pictures and Video Act, and the Publishing Industry Promotion Act, according to

There is no provision regarding the subject and scope of distribution of the Culture and Arts Fund, the Motion Pictures Development Fund, etc., which is a limited source of resources. Since there is no specific right to claim the State to receive the Fund, relevant administrative ministries, etc. may establish and implement policies excluding a certain individual or organization from the funding of the Fund, and related committees have a wide range of discretion to determine the recipients of the Fund. Accordingly, the Defendants’ selection of those excluded from subsidization in the process of formulating and implementing policies for distributing the Culture and Arts Fund, etc. according to such discretion cannot be readily concluded as abuse of official authority by ex post evaluation.

2) Whether a constitutional breach of duty exists

Even if there is room to be assessed as an inappropriate act for the implementation of policies excluding support, in order to constitute a crime of abusing authority and obstructing another’s exercise of rights, the Defendants’ act should be proven without any reasonable doubt that the Defendants were obligated to perform official duties regarding the implementation of the relevant policies, and that the members of the Arts Council, Film Council, and Publication Promotion Agency did not perform any duty. However, the Majority Opinion, on the premise of the lower court’s determination that the Defendants’ act was unconstitutional, found such act to constitute abuse of authority without omitting specific arguments regarding causal relationship between the Defendants’ act and the exclusion of support, whether the Defendants

However, if it is recognized that a public official abused authority, which is a constituent element of the crime of abusing authority and obstructing another’s exercise of rights, solely on the ground that the act is unconstitutional

Article 13(1) of the Constitution of the Republic of Korea requires that a crime and punishment shall be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of state punishment (Article 13(1) of the Constitution of the Republic of Korea). If a public official’s act is deemed unconstitutional, a public official subject to impeachment may be subject to impeachment trial, and if a public official is subject to criminal punishment on the ground that it violates the abstract constitutional principle without specifying specific prohibition rules, it would be in violation of the principle of clarity derived from the principle of no punishment without the law, which is the major principle of the Constitution, and the principle of no punishment without the law will be completely punished.

Of course, the Constitution requires public officials to engage in political neutrality, and such constitutional spirit is embodied through individual laws such as prohibition of political activities under Article 65 of the State Public Officials Act and Article 57 of the Local Public Officials Act, prohibition of political participation under Article 9 of the National Intelligence Service Act, prohibition of military personnel's status and service, prohibition of judicial participation in political activities by judges under Article 33 of the Framework Act on Military Service Act, prohibition of political activities under Article 49 of the Court Organization Act, prohibition of political activities under Article 10 of the Board of Audit and Inspection Act, and prohibition of political activities under Article 10 of the Board of Audit and Inspection Act. Although public officials' act of violating such political neutrality may become grounds for disciplinary action, there are no individual statutory provisions that punish the Defendants except for political participation under Article 18 of the National Intelligence Service Act, and Article 94 of the Military Criminal Act. Nevertheless, imposing criminal responsibility for the crime of abusing authority and obstructing another'

In addition, even if the grounds for the unconstitutionality cited by the court below are examined, it is doubtful whether the Defendants’ act is unconstitutional.

The principle of cultural state under the Constitution is realized through "the obligation of the President to endeavor to promote national culture" under Article 9 of the Constitution and Article 69 of the Constitution. However, even if the State establishes and implements cultural policies by setting a plan, selection and priority in accordance with reasonable standards, such cultural support process is not compatible with the request for national cultural neutrality. This is because there is no State's obligation to provide uniform support for all cultural activities and any right corresponding thereto. The U.S. Supreme Court also held that the selective support of funds by the Government does not infringe on the right of Article 1 of the amended Constitution (Rust v).

Sulivan, 500 U. S. 173 (191)). Accordingly, the exclusion of discriminatory support itself cannot be deemed as immediately violating the principle of a cultural state that the Constitution provides, and the establishment and implementation of such policies by the Defendants cannot be deemed as an exercise of unconstitutional authority.

Moreover, an organization or individual whose support is excluded is not only the fund created by the State, but also their cultural and artistic activities themselves are not restricted by the State, and cannot be deemed as infringing on the freedom of expression.

In addition, the facts charged in the instant case are conducted in the course of allocating limited financial resources in accordance with the national policy. If it appears that there is a violation of the principle of equality in the performance administration, discrimination among the comparative groups of the same quality must be confirmed. However, in the process of disputing eligibility for benefits through revocation litigation, it can be evaluated that there is an act of equal treatment in terms of normatively and equally infinitely, in the process of disputing eligibility for benefits. However, if public officials participating in the implementation of the instant policy are punished for abusing authority and obstructing another’s exercise of rights on the grounds that the decision to exclude and exclude support for a specific organization or individual, which has already occurred in disputes, and that such decision was ex post facto violating the principle of equality, the public officials involved in the performance administration policy, which is essentially bound to be subject to discriminatory execution, are at risk of being subject to criminal punishment at any time, which may result in a violation of

The Majority Opinion that the Defendants’ act constitutes abuse of authority does not accord with the system for examining the establishment of a crime under the criminal law.

If the illegality of the disposition of exclusion of support is determined through administrative litigation, the court may revoke or confirm that the exclusion of support does not exist due to the unconstitutional, illegal, or unfair factors cited by the majority opinion, or that the exclusion of support is invalid on the ground that the grounds such as the deviation of support does not exist or the deviation or abuse of discretionary power.

On the contrary, determination of which act constitutes a specific crime in the criminal law area like this case requires the determination of illegality and responsibility only when it first examines whether such act constitutes the elements of a crime and it is recognized that such act constitutes the elements of a crime. However, as the majority opinion, if it is judged that the Defendants’ act constitutes abuse of authority under the premise that such act constitutes unconstitutionality, it does not determine whether such act constitutes a crime of abuse of authority under the premise that such act constitutes a crime of abuse of authority under the premise that it is unconstitutional, and that it is against the principle of a cultural state, the freedom of expression, and the purport of the Constitution guaranteeing the freedom of arts without reasonable grounds, and thus, it is contrary to the principle of equality. The logic of the majority opinion is contrary to the essence of a crime system and the legitimacy of

4) Sub-decisions

It is against the fundamental principle of criminal law to impose criminal liability on the Defendants by deeming the Defendants’ act as an abuse of authority as referred to in Article 123 of the Criminal Act, beyond evaluating the Defendants’ act of deviation from or abuse of discretionary power or taking legal responsibility therefrom merely because the policy purpose is not consistent with the Constitution or is unreasonable. In particular, a high-ranking public official whose scope of authority is broad may be subject to criminal punishment on the ground of a violation of the Constitution, which is an abstract standard, depending on changes in political geographical features, and may be in violation of the principle of clarity, etc. The constitutional principle is difficult to function as a specific norm of conduct that may be subject to criminal punishment in the event of violation. Therefore, it is difficult to agree with the conclusion of the Majority Opinion that the Defendants’ act is an abuse of authority on the ground that it

(d) the procedures for deliberation on the management and operation of the Fund;

Even if it is deemed that the Defendants’ act constitutes an abuse of official authority on the grounds that the Defendants’ act was unconstitutional and unreasonable, in order to punish the Defendants for the crime of abusing official authority and obstructing another’s exercise of rights, the outcome of having another person practically perform an act that does not have any legal obligation, or obstructing another person’s specific exercise of rights should be caused by the act of abusing official authority (see Supreme Court Decision 2010Do12754, Oct. 11, 2012).

In light of the contents of the statutes related to the Arts Council, Film Council, and Publication Promotion Agency, the employees of the Arts Council, Film Council, and Publication Promotion Agency have the duty to guarantee the independence of the members of each of the above corporations in the performance of their duties and to assist each corporation in carrying out their business purposes autonomously. However, the Defendants unfairly interfered with the support deliberation by allowing such employees to use certain individuals or organizations to be excluded from the distribution of funds.

However, the Majority Opinion supporting such determination by the lower court places emphasis on the fact that the distribution of funds by the Arts Council, Film Council, and Publication Promotion Institute was conducted through deliberation by each juristic person. The Culture and Arts Promotion Act, etc. provides that each juristic person composed of experts and independent organizations guaranteed autonomy should deliberate on the distribution of literary funds, etc. In particular, the fund to be distributed by the Arts Council and Film Council is established pursuant to Article 5(1) [Attachment 2] of the National Finance Act and should be executed in accordance with the National Finance Act in establishing, amending, and disbursing operational plans. Although the Defendants instructed the employees of the Arts Council, Film Council, and Publication Promotion Institute to deliver the policies excluded from the allocation of funds to the Committee, it should be specifically proven that such exercise of authority affects the deliberation process or decision of each juristic person, or that the disbursement contrary to the National Finance Act was conducted, and that the Defendants’ act of abuse of authority and obstructing the exercise of rights by each juristic person through deliberation on distribution of literary funds, etc. from the investigation stage of this case was unlawful for the purpose of preventing public officials from exercising their rights and interests.

The majority opinion presumed that the employees of the Arts Council, the Film Council, and the Publication Promotion Agency have the legal obligation to guarantee the independence of the members of each corporation in the performance of their duties and to assist each corporation in carrying out their business objectives autonomously. The majority opinion held that since the employees of the Arts Council, the Film Council, and the Publication Promotion Agency violated the independence of the members and undermine the progress and operation of autonomous procedures by taking orders from the public officials of the Arts Council to exclude grants from grants, and thus, the part of the acts constituted the crime of abusing authority and obstructing another’s exercise of rights is deemed to have been established, since they did not have any legal obligation. This part of the acts cannot be seen as falling under “when they did not have any obligation” and thus, it is necessary to re-examine

However, the Majority Opinion considers the criteria for “at the time of non-obligatory work” as “whether the employees of the Arts Council, the Film Council, and the Publication Promotion Agency have performed an act without any legal obligation.” However, there is no concrete and individual argument as to the grounds for legal obligation granted to each employee of the respective foundation. The Culture and Arts Promotion Act only provides that a secretariat shall be established to assist the work of the Arts Council (Article 33), and the film and Video Act provides that a secretariat shall be established to assist the work of the Arts Council (Article 20), and the Publishing Industry Promotion Act only provides the duties of the Publication Promotion Agency, and does not provide the said employees with any legal obligation. The legal obligation of the employees of each of the respective corporations is merely to assist the work of each of the respective corporations, and there is no legal obligation imposed on the employees of each of the respective corporations. On the conclusion of the Majority Opinion, each corporation’s decision-making is substantially independent of the employees of the Arts Council and Arts Promotion Agency, and the members are against the autonomy and autonomy of the Publication Promotion Agency.

When the crime of abusing authority and obstructing another’s exercise of rights, which is the core constituent element of the crime of abusing authority and obstructing another’s exercise of rights, should be interpreted by taking into account the protected legal interests to protect individual freedom and rights and to prevent social trust in national authority. It is difficult to see the same act of having a public official contribute to a specific foundation, having a public prosecutor suspend internal investigation or manipulate the order of a person in charge of preparing a promotion list, and having a public prosecutor do a specific act to a public official who does not have any authority for deliberation of the committee

In addition, this part of the facts charged consists of a series of acts committed by the employees of the Arts Council, Film Council, and Publication Promotion Agency in accordance with the Defendants’ orders. However, in determining whether the elements of a crime have been satisfied, each act, the most essential element of which was committed in detail and in any way, and thereby affecting the deliberation of the exclusion of subsidies from each corporation, is just carried out without distinguishing each act. Since the substance of each corporation’s legal obligations imposed on its employees cannot be identified as to the deliberation procedure and standards, it cannot be determined whether any of the acts listed in the list of crimes did not have any obligation, and the majority opinion does not clearly provide the criteria for judgment. 3) In order for the Defendants to rate the Defendants into the crime of abusing authority and obstructing another’s exercise of rights, such as the facts charged, it is more consistent with the Defendants’ act that interferes with the exercise of rights to applicants for each corporation’s business for the distribution of funds.

However, in order to exercise influence over each juristic person, the special prosecutor constituted the facts charged that the Defendants sent the excluded persons to each juristic person’s employees and let them perform the acts to enforce the order of exclusion from support, and only proven the facts charged. The fact that each juristic person’s employees had the said employees perform an act without any duty is merely a process leading to the Defendants’ achievement of the objective of exclusion from support. If these acts committed in the process of achieving the objective were to be included in the days for which the Defendants’ act of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights is unreasonable final interpretation of abuse of authority and the scope of punishment for abusing authority and obstructing another’s exercise

4) Sub-decisions

Although the exclusion of support made in this case is based on the deliberation of each corporation of the Arts Council, Film Council, and Publication Promotion Agency, there is no evidence to know the role of the members in each corporation and the process of deliberation. Nevertheless, this part of the facts charged that constituted the act of exclusion of support was conducted through an act without any duty performed by the employees of each corporation is without proof. Furthermore, as the majority opinion states, if the order of the Defendants is regarded as an abuse of official authority due to the unconstitutional or unlawfulity of the Defendants’ order, the determination of whether the Defendants’ act of the employees of each corporation committed an act without a duty constitutes an act of abuse of official authority should be made on the grounds that the Defendants’ act constitutes an act of conspiracy or aiding and abetting against the unconstitutionality and unlawful act, and whether the members of the relevant committee abused their official authority to decide the recipients of the fund. However, it cannot be pointed out that the investigation and prosecution can be distorted only with the fact that the employees of each corporation committed an act without

In conclusion, even if the employees of each corporation committed the same act as the facts charged due to the Defendants’ instruction of exclusion of support, since there are no grounds for the legal obligations of the employees of each corporation under the premise of the Majority Opinion, and there are no evidentiary materials regarding the deliberation and decision of exclusion of support by each member, it cannot be deemed that the Defendants committed a non-obligatory act as referred to in the

E. Conclusion

For this reason, the lower court convicted Defendants 1, 3, 4, and 7 of the crime of abusing authority and obstructing another’s exercise of rights. Therefore, the part against Defendants 1, 3, 4, and 7 and the guilty part against Defendants 2, 5, and 6 of the lower judgment should be reversed, and the remainder of the appeals against Defendants 2, 5, and 6 by the special prosecutor should be dismissed.

Therefore, I express my Concurrence with the Majority Opinion that the judgment of the court below should be reversed, but with different reasons for reversal.

12. Dissenting Opinion by Justice Park Jung-hwa, Justice Min You-sook, Justice Kim Seon-soo, and Justice Kim Jong-hwan as to the crime of coercion

A. The Majority Opinion determined that the lower court did not err by misapprehending the legal doctrine as to intimidation of coercion, etc., contrary to what is alleged in the grounds of appeal, on the grounds that it is insufficient to view that the said culture and tourism public official notified Nonindicted 32 of the culture and tourism, who directly demanded Nonindicted 9 to resign, and Nonindicted 33, Nonindicted 34, Nonindicted 35, and Nonindicted 36 of the culture and tourism, who directly directed the employees of the Arts Council, Film Council, Film Promotion Council, and Publication Promotion Agency, the details and developments leading up to the exclusion of support, the other party’s career, and the circumstances leading up to the exclusion of support, etc., of the culture and tourism public officials, who directly demanded Nonindicted 9 to resign.

However, it is difficult to agree with the reasoning and conclusion of the Majority Opinion for the following reasons.

B. Intimidation in the crime of coercion as referred to in the crime of coercion, i.e., threat of harm and injury, even though it is not necessarily an explicit method, it is sufficient to have a perception that the other party would have any harm and injury through speech or behavior, and may be indirectly made through a third party. In cases where an actor demands illegal delivery of property or property benefits by using the above circumstances based on his/her occupation, status, etc., and causes fear that the other party would suffer an unreasonable disadvantage if the other party refuses to comply, it is also a threat of harm and injury (see, e.g., Supreme Court en banc Decision 2004Do1565, Jul. 15, 2005; Supreme Court Decision 2010Do1374, Apr. 11, 2013). Whether there was a threat of harm and injury that is likely to cause harm and injury to the other party, should be determined by taking into account the relevant circumstances such as the duty of both parties to the act, social status, and mutual relation with rights and obligations (see, etc.).

C. Before Nonindicted 9 and Nonindicted 1’s demand for resignation against Nonindicted 9 for Nonindicted 9 on the grounds as follows, the demand for resignation against Nonindicted 9 ought to be considered as intimidation in the crime of coercion for the following reasons. Before Nonindicted 9 was demanded to resign, Nonindicted 9 had been subject to reprimand personnel measures and had experience leading from the Director General of the National Sports Bureau in the position of the NIS to the National Museum. Nonindicted 37, who was the head of the National Museum of Korea, immediately before Nonindicted 9 was demanded to resign from Nonindicted 32. Nonindicted 32 demanded the submission of a resignation statement while suggesting that the demand for resignation was the upper line of the minister, that is, in fact, the presidential order, and Nonindicted 9 knew that the demand for resignation was based on the direct direction of the President. Nonindicted 9 was well aware that the demand for resignation was made in the process of being subject to public service inspection. Nonindicted 9 was well aware of the disadvantage of his or his subordinate employees in terms of social position and was objectively easily anticipated.

B) Nonindicted 9, who was a public official in the culture, was in a position that is bound to obey in relation to the president, chief secretary and chief secretary of the bureau, and the Minister of Culture, Sports and Tourism, who has the authority to direct and supervise the heads of all central administrative agencies as a public official in charge of administration and may exercise influence on the personnel rights of public officials belonging to the heads of central administrative agencies. Defendant 3, who is the president or chief secretary of the bureau, and Defendant 5, the minister of the culture, Sports and Tourism, who used his position and demanded the resignation of Nonindicted 9, who is a public official whose status is guaranteed by law, through the status outside the prosecution and outside 32, is an implied notification of harm and injury because it limits the freedom of decision-making of Nonindicted 9, who objectively fails to comply with it, or

C) In full view of the above circumstances, in light of the experience of the average members of the society with a sound common sense, Nonindicted 9, who was demanded to resign in our society, is bound to be deemed to have caused fear of fear. As such, Defendant 3 and Defendant 5’s demand for resignation against Nonindicted 9 ought to be deemed to constitute a threat of harm and injury as stated in the crime of coercion, i.e., intimidation., intimidation. 2) The demand for resignation against Nonindicted 6, who is a public official of Grade I, should also be deemed as intimidation in the crime of coercion for the same reason.

Nonindicted 6, etc. had been well aware of the fact that the demand for resignation was the direction of the minister rather than the Minister of Culture, Sports and Tourism, and the process that Nonindicted 9 was led to the National Museum of Korea under public service inspection, and that Nonindicted 6, etc. classified him as Nonindicted 1, who was intended with the intention of Nonindicted 1, in the public room for the position of senior public officials in charge of culture, Sports and Tourism. In such a situation, Nonindicted 6, etc. could have objectively predicted that, when refusing the demand for resignation, he or his subordinate employees should be at a disadvantage in relation to their status.

Therefore, in light of the experience of the average person with sound common sense in our society, Nonindicted 6, etc., who was demanded to resign, is bound to be deemed to have caused fear. As such, Defendant 1 and Defendant 5’s demand for resignation against Nonindicted 6, etc. ought to be deemed to constitute a threat of harm and injury, i.e., intimidation in the crime of coercion.

D. In 2015, Non-Indicted 34 of the Culture and Arts Council expressed that “I would like to accept the tea project if there is no way to exclude Non-Indicted 5 of the Arts Council in order to smoothly carry out the duties of exclusion from the grant of the Arts and Arts Fund, film and book-related support, and Non-Indicted 1 of the Culture and Arts Council. In addition, in relation to the program of exclusion from the grant of the grant of the grant of the grant of the grant of the Arts and Arts Fund, in 2015, the extreme group dedicated to the grant of the grant of the grant of the grant of the grant of the grant of the grant of the grant of the Culture and Arts Fund, which was included in the scope of exclusion, passed the grant of the grant of the grant of the grant of the grant of the grant of the grant of the grant of the grant of the Culture and Arts Fund.” Non-Indicted 38 of the Culture and Arts Council, on December 2014, the grant of the grant of the non-indicted 14 to exclude the grant of the grant.”

P prior to ten minutes prior to the examination of the program for supporting the exclusive use of art film in the Film Council, Nonindicted 35 of the Culture and Sports Council stated that Nonindicted 39 was called to take measures so that Nonindicted 39 was called to be excluded from the support of the △△△△△△△△△ in the Young-gu, and that Nonindicted 35 was a large amount of time when the △△△△△△△△△△△ was informed of it when he was passed. Nonindicted 35 called, “The △△△△△△△△△△△△△△ was using a large amount of telephone conversations with Nonindicted 39 every day around the time when the △△△△△△△△△△△△△ was screened in the British International film festivals and the general exhibition hall.” Nonindicted 35 received a request from Nonindicted 39 to “OO△△△△△△△△△△△△” and received a report.

Nonindicted 36 of the Culture and Sports Council stated that Nonindicted 11 of the Publication Promotion Agency did not list the list of objects to be excluded, and that, in the event that such a book is not excluded, the Promotion Agency may be deemed to have a problem ideologically, and that, in the event that Nonindicted 10 of the Publication Promotion Agency does not comply with the direction, it would be difficult to say that it would be difficult to say that both “the Internet news and retail Promotion Agency will have a problem” and “the Internet news and retail Promotion Agency will not have a problem.”

In a case where the Arts Council, the Film Council, and the Publication Promotion Agency are unable to operate a public contest, not only directly disadvantage the cultural artists who filed an application for the public contest, but also may endanger the existence of the Arts Council, the Film Council, and the Publication Promotion Agency. Considering the context of such circumstances at the time, the foregoing words made by Nonindicted 34, Nonindicted 38, Nonindicted 35, and Nonindicted 36, etc. to Nonindicted 5, Nonindicted 14, Nonindicted 39, Nonindicted 11, and Nonindicted 10, etc. of the Culture and Arts Council, are sufficient to have the employees of the Arts Council, the Film Council, and the Publication Promotion Agency, and thus, may be seen as a notice of harm and injury.

2) The Minister of Culture, Sports and Tourism, at the time of the publication and promotion of the Arts Council, has the authority to appoint and dismiss certain persons and organizations belonging to the Arts Council, Film Council, and Publication Promotion Agency. Some of the employees of the Arts Council, Film Council, and Publication Promotion Agency was aware of the fact that the request of the public official was made by the Arts Council beyond the Arts Council’s order. The Minister, upon the request of the Culture and Arts Council, de facto displayed the recommendation of exemption from the said works. Nonindicted 40 of the Director of the Film Council was seriously charged with the persons related to the Film, such as the chairperson of the Film Council, and the chairperson submitted the letter of determination to the Film Council. After that, the Minister, upon the request of the Director of the Arts Council for the submission of the annual basic direction-setting plan for the promotion of the publication and promotion of the publication and promotion of the culture and arts Council, has the authority to request the Director of the Arts Council to submit the report on the promotion of the publication and promotion of the culture and arts, and the Minister, upon the request of Nonindicted 10 and the Chairperson of the Arts Council to submit the basic plan.

Therefore, the employees of the Arts Council, the Film Council, and the Publication Promotion Agency are in a position to obey the relationship with the President who can decide on personnel affairs, budget, and policy enforcement, the employees of the secretariat and the public officials of the Arts Council.

4) In light of the process and developments leading up to ordering public officials, such as Nonindicted 34, to exclude support as above, the details that they speak, and the relationship between the Culture Council and the Arts Council, Film Council, and Publication Promotion Agency, etc., in our society, it is reasonable to view that Nonindicted 34, etc., who were ordered by the employees of the Arts Council, Film Council, and Publication Promotion Agency to exclude support for specific culture and arts artists and organizations, was to the extent that they would interfere with free decision-making and implementation. Therefore, Nonindicted 34 and other public officials of the Arts Council, Film Council, and Publication Promotion Agency may be deemed to constitute a threat as referred to in the crime of coercion, namely, a threat of harm and harm, at least an implied threat, and that the Defendants were not guilty of the harm and harm to the employees of the Arts Council and Arts Promotion Agency, on the grounds that the Defendants were unable to be deemed to have committed any unlawful deliberation of the crime of coercion by the lower court, and that the rest of the Defendants, who were public officials of the Arts Council and Arts Promotion Agency, cannot be deemed to be acknowledged and persuasive in light.

E. Sub-decision

Since the judgment of the court below which acquitted the Defendant of the crime of coercion is unlawful, all of the judgment below should be reversed. For this reason, we oppose the majority opinion as to the part of coercion.

13. Concurrence with the Majority Opinion by Justice Park Jung-hwa, Justice Min You-sook, Justice Kim Seon-soo, and Justice Kim Jong-hwan

A. The lower court’s constitutional evaluation of the instant order to eliminate support is justifiable.

The lower court determined that: (a) the Defendants’ act of ordering culture and arts artists within a considerable scope to unilaterally exclude those subject to State subsidies, etc. prescribed by law (hereinafter “instant order”) was an act in violation of the Constitution and law on the grounds that the Defendants presented detailed reasons, and carried out a political opinion or ideological inclination different from the claimed by the government; (b) presented a critical position against the government’s policy; or (c) supported a politician who is evaluated as belonging to a political party against the government; and (d) supported the said political person, which is evaluated as belonging to a political party against the government’s policy; (b) thereby satisfying one of the elements of the crime of obstructing the exercise

The Majority Opinion recognized that the lower court’s evaluation of the instant order to exclude support was justifiable. This is because the lower court’s determination of the original deliberation was based on the precise interpretation and comprehensive consideration of the constitutional provisions and the meaning of various legal provisions governing the area of culture, which should be considered in the instant case.

We would like to supplement the Majority Opinion by presenting the following reasons in order to emphasize that the above constitutional evaluation by the lower court is legitimate:

B. I think Article 7 of the Constitution of the Republic of Korea is the issue of arbitrary discrimination that deviates from public officials' political neutrality norms.

Article 7(1) of the Constitution imposes a constitutional obligation on a public official who is responsible for a 'public role and function of the entire people'. Meanwhile, the political neutrality of a public official as provided by Article 7(2) of the Constitution is an essential condition for a public official to fulfill the constitutional obligation to realize the public interest, which is the public interest, as a servant of the entire people. Therefore, a public official exercising the state power is required to maintain a variety of political positions and distance, such as impartiality and distance for the entire people, and to prohibit the state from exercising the state power. An individual political belief, such as a political belief, should be removed from the objectivity of the Constitution and the restraint of the law for the performance of public service. In particular, the meaning of the Constitution, which is the basis for existence of all state agencies and the highest norm, must be always examined and strictly complied with.

As such, the meaning of Article 7 of the Constitution is clear as it does not need to be specified by law. Therefore, if the state power exercises its public authority with the intention to deny or exclude a specific political inclination or position, etc. from the standpoint of opposing the State power, even though a specific political opinion or inclination, etc. can freely exist in our constitutional order, it clearly violates the status of a public official as a servant for the entire people of the nation as defined in Article 7 of the Constitution, and furthermore, the people’s trust in the legitimacy of state power is at risk of being lost.

2) Alongly considering the unique constitutional value of culture and arts. Along with those who have a variety of culture and arts to obtain mental sense and satisfaction, or to newly understand, respect, and communicate with other persons located in different locations with them, and society comprised of them. As such, culture and arts assist an individual’s free character development and provide a foundation for collective identity, development, and integration in society. Most of today’s countries have made various political efforts, such as subsidization for the promotion, protection, and fostering of culture and arts, with a focus on the social role and function of culture and arts. On the other hand, if the supply of culture and arts, which has the character of public property, is entrusted to the territory of the free market, the supply of culture and arts, the essence of which is individual nature, unique nature, and diversity, was seriously perceived.

However, there was a concern that the State's support for artists and their artistic activities may lead to the infringement of the autonomy of culture and arts. This is because the State seems to have been able to control or induce the members' mental daily lives to a certain extent through intervention in the contents or direction of arts subject to support. Kenya, which was the economics and the chairperson of the British Arts Committee, presented the so-called "the principle of sale length" to the effect that "the support is provided as a response to these concerns, but it is not possible to interfere with the contents of arts."

The above principle means that the state or administrative agency should keep a distance as much as the length in supporting artists in relation to the creation of art, and it is also the principle of art support, but it is also the principle that the art support institution composed of independently should guarantee its independent operation beyond the influence of the obsism. The above principle is currently evaluated as a universal rule of art support.

B) Considering the social meaning, function, and impact of the State’s support for culture and arts and culture, in addition to Article 9 of the Constitution declaring the principle of a cultural state, Article 21 of the Constitution guaranteeing the freedom of expression of all people, and Article 22 of the Constitution guaranteeing the freedom of arts and protecting the rights of artists, it is reasonable to view that a public official should more strictly observe the practical implications of Article 7 of the Constitution (a status of a public official as a servant of all citizens and a norm of political neutrality) mentioned above when realizing the constitutional task of the State as an applicant for culture.

The State's support for culture and arts is not for a partial benefit or special benefit of a particular individual, group, political party, etc., but for the expansion of the whole citizen's opportunity to access culture and arts based on the entire citizen's contribution (tax).

Therefore, the state's support for culture and arts should be 'unconditioned financial support', 'support that does not exercise influence by political leaders', 'economic support only' and 'support that does not interfere with creative activities and contents'. This is because the state's improper political interference can protect the autonomy of culture and arts.

3) Ultimately, the instant order cannot be deemed as a arbitrary discrimination that deviates from the norm of political neutrality of public officials as stipulated under Article 7 of the Constitution. In addition, it is doubtful whether it is possible for public officials to collect, prepare, hold, and manage a list of 10,00 people who are close to 10,00 people centering on culture and arts personnel without any obvious legal basis to support their actions.

B) Even if the grounds for exclusion of support are specifically considered, without considering any consideration as to the existence of circumstances constituting the grounds for restriction of fundamental rights under Article 37(2) of the Constitution, such as national security, it is merely a ground for exclusion of support, such as that a specific person has a political position or inclination against the government, support for the opposition party’s political leader, or express a political opinion on a socially problematic issue. Therefore, it cannot be said that it is reasonable to justify the exclusion of support.

The most essential part of the political freedom guaranteed by the Constitution is that every citizen may raise doubt about the government’s policies and legitimacy, etc. and indicate political oppositions. If the foregoing reason can immediately be a justifiable reason for the exclusion of grants, it would be permissible to treat the political position and opinions of the people who can freely express in our constitutional order as a matter of course in the administration of subsidies for culture and arts, and as an object of distribution or correction. It is apparent that this is inconsistent with the liberal democratic fundamental order, which is the fundamental ideology of our Constitution.

C. The decline, distortion, and infringement of the basic human rights of relevant cultural artists

The following circumstances support the above judgment.

1) The instant order, using financial and institutional support as a means of excluding the government’s policy or political view contrary to the route of the government’s policy, was sent to support the government’s policy, so as to agree with the government’s policy, and as a result, coordinate and induce at least not to express any political opinion consistent with the government’s political objective. Such an act may distort or distort the artist’s artistic and commercial history and intent to express it. 2) The instant order contradicts the purport of the provision prohibiting the prior censorship of the expression of the Constitution. The instant order is not only on the ground of “the content of the work,” but also on the ground of external factors such as “the creator’s political inclination or activities,” but also on the ground of “the prohibition of expression,” but also on the grounds of “the creative creator’s prior censorship of economic support.”

However, the instant order is identical to the expression of the government’s principle or policy that “the government-oriented creative works will not be supported.” Accordingly, it cannot be readily concluded that there is no concern that artists will directly censorship themselves to create only the arts that fit the government’s intent in order to prevent artists from being excluded from the support. This is not only an infringement of the originality and creativity of artistic activities, but also a risk that citizens may enjoy only the culture of friendly contents to the arts and the government selected by the government’s decision, thereby going against the purport of the constitutional provision that prohibits prior censorship of expressions.

Furthermore, the exclusion of the instant support does not include the individual and specific censorship limited to “a certain creation”, but may affect the “all creative acts of culture and arts persons deemed to oppose the regime,” and thus, may result in a chilling effect on freedom of expression more than the risk of typical prior censorship.

D. The instant order intended from the beginning the exclusion of “the legal independent public deliberation system,” which is difficult to be seen as a lawful and legitimate decision of the State, was decided to grant the State support for culture and arts. There are procedural problems as follows: (i) the act of the President under the laws of the Republic of Korea, which is difficult to be seen as a lawful and legitimate decision of the State; and (ii) this document is a document, and this section of the State Council concerned with the Prime Minister (Article 82(1)); (iii) the important policy belonging to the governmental authority of the State shall be deliberated by the State Council (Articles 88(1), 89 subparag. 1 and 13 of the Constitution of the Republic of Korea); and (iv) the preparation and exclusion of the list of the black list against some culture and arts artists, as alleged by the Defendants, at the level of the administration.

If it constitutes a policy matter, it should have been determined through the deliberation of the State Council. Whether it was or not, and there is no evidence that it was an official and transparent procedure consistent with the name of a policy to be promoted in a meaningful sense.

The term "policys that have broad discretion and should be respected by the general public and the court" means only those formed in accordance with the procedures and methods prescribed by the Constitution and laws, and only some public officials belonging to the Presidential Secretariat have discussed in the secret room in an unofficial manner, it is not easy to say that the "policy of the administration" is a policy of the administration.

2) According to the Administrative Procedures Act as a general law regarding administrative procedures, an administrative agency shall determine and publicly announce the necessary disposition standards in a specific manner in light of the nature of the relevant disposition (Article 20(1)1). The purport of imposing an obligation to specifically determine and publicly announce the disposition standards is to increase predictability of the outcome of the disposition, thereby ensuring fairness, transparency, and reliability in administration, thereby preventing the arbitrary exercise of authority by an administrative agency.

If some cultural artists want to exclude them from those subject to support under the law on the grounds of political ideological inclinations, such disposition criteria should be published in advance in accordance with the Administrative Procedures Act to provide predictability for the result of the disposition to the general public. However, even though the Defendants conspired to select some cultural artists and exclude them from those subject to support, they did not deliberate at the State Council in advance or make the disposition criteria publicly announced in advance. This is due to the Defendants’ intention to interfere with their decision on their objection or the exercise of their defense rights by preventing them from being aware of the true reason for the disposition.

E. 1) The instant order aims to arbitrarily discriminate against some artists and artists by deviating from the standpoint of political neutrality by disregarding their status as a servant for the entire citizens of public officials and norms of political neutrality as stipulated in Article 7 of the Constitution. In that it is for the Defendants to divide cultural artists and organizations into two categories on the basis of whether they share political opinions with the political groups to which they belong, and to put them at a disadvantage to the party to which they belong in political rupture group without justifiable grounds. In light of this, the substance of the Defendants’ act is in violation of fundamental human rights, such as the freedom of arts, etc. of the relevant artists. In light of this, the substance of the Defendants’ act is in violation of the Constitution and law, and in violation of the Constitution and law, one of the elements for the establishment of the crime of abusing authority and obstructing another’s exercise of rights, a public official, among the elements for the establishment of the crime of abusing authority and obstructing another’s exercise of rights. 2) The purport of the lower court’s judgment is well aware of the reasons for the judgment.

The Constitution of the Republic of Korea is based on the fundamental order of free democracy (Article 4 of the Constitution).

In other words, the Constitution is aimed at forming a State by the autonomy of the people based on the fundamental principles of freedom and equality. Such fundamental order of free democracy is the diversity of ideas. The diversity of ideas is based on the individual’s freedom of expression and the guarantee of mental fundamental rights, such as freedom of arts. This is in conflict with the principle of cultural state under the Constitution pursuing autonomy and diversifiedism. In light of these constitutional principles, it is obvious that the government cannot decide whether to provide support because it takes the subject of the adjudication on culture and art in accordance with its ideological and political orientation. Unless denying the basic order of free democracy, it is right and wrong in culture. The paths of net liberal democracy, where the government restrains culture expressing opinions different from itself or discriminates against it, is closed, and the door of overallism is open to the country.

A. The Concurring Opinion by Justice Jo Hee-de regarding the admissibility of Cheongdae documents constitutes illegally collected evidence on the premise that the presidential secretary intentionally involved in the authority to investigate and maintain the special prosecutor’s office with respect to Cheongdae documents. However, this logic is difficult to agree on the premise that it is different from the fact.

According to the records, some of the above Cheongdae documents were found in the Cheongdae-man's Cheongdae-man's Cheongdae-man who was left unused on July 3, 2017, and some of the documents were found in the Cheongdae-man who was left in the Cheongdae-man's office after the process of such discovery was published, and the computer documents files were found to have been found in the process of performing the duties by the administrative secretary in the 2nd secretary office of the President. On July 17, 2017, the special prosecutor requested the Presidential Secretariat to provide documents discovered in the Cheongdae-man's office and the Cheong-man's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the Seoul Central District Prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office of the special prosecutor's office.

In light of the above circumstances, the special prosecutor requested the Presidential Secretariat and the Seoul Central District Prosecutor’s Office to provide materials to maintain public prosecution within the scope of duties prescribed by law, and received the materials requested by two agencies. In addition, since anyone who has the right to file an accusation against a crime has the right to file an accusation, and a public official is also obligated to file an accusation in the event he/she is found to be a crime in the performance of his/her duties (Article 234 of the Criminal Procedure Act), it is difficult to view that the documents and files that he/she discovered by chance while performing his/her duties at the Presidential Secretariat is illegal to provide

Therefore, the special prosecutor collected evidence at the request of the presidential office or the Seoul Central District Prosecutors' Office in accordance with the law, and it cannot be deemed that the presidential office participated in the authority of the special prosecutor or infringed on the fairness of duties.

B. The significance of the existence of the crime of abusing authority and obstructing another’s exercise of rights, such as the Culture and Arts Fund, is to punish a public official, who is a citizen of the entire nation, to illegally and unlawfully exercise the authority delegated by the citizen, thereby protecting the public confidence in the fair exercise of the State’s functions and protecting the individual’s freedom and rights. This crime is designed for a crime against the general public, and from this perspective, it is more appropriate to regard the crime under the state’s “state” rather than the crime against the state, rather than the crime against the general public. However, since there is no restriction on the “party who is the party to the exercise of authority and authority in this crime,” another public official or an executive officer or employee of the relevant institution may become the counter-party to the crime of abusing authority and obstructing another’s exercise of authority, and in this case, it should be viewed differently from the case of the general public.

Of the facts charged in the instant case, the Defendants ordered employees, such as the Arts Council, to exclude the Defendants from the grants of the Culture and Arts Fund, etc., and accordingly, ordered such employees to send various lists, report various progress situations, and deliver the policy of exclusion to the Review Committee members. Since the Culture and Arts Fund, etc. are limited to financial resources organized with the State’s budget, it should be reasonably allocated in accordance with justice and equity. In particular, given that culture and arts is the essential body for enhancing a democratic society, the support of the Culture and Arts Fund, etc. is not a matter of monetary support, but a matter of freedom and creativity. Accordingly, excluding a specific class from the recipients of the Culture and Arts Fund, etc. according to ideology and ideology may endanger democracy. In light of this, arbitrary enforcement of the Culture and Arts Fund, etc. should be deemed to constitute abuse of authority and abuse of authority.

2) Although the facts charged in the instant case indicate that the exclusion of grants, such as the Culture and Arts Fund, was made in the premise facts, the act of causing the employees of the relevant organizations, such as the Arts Council, to send a list during the process of exclusion of grants, rather than the final act of causing or causing the cultural artists, etc. who applied for such grants to constitute the constituent elements of the instant charges. Since the cultural artists, etc. were unfairly excluded from the grants of the Culture and Arts Fund, etc., the important facts in the instant case are the fact that the cultural artists, etc. were unfairly excluded from the grants of the Culture and Arts Fund, etc., thereby obstructing their exercise of rights by preventing them from exercising their rights or inducing them to take a disposition of

Nevertheless, as pointed out in the Concurring Opinion by Justice Park Sang-ok, the facts charged in the instant case did not prosecute the act causing the significant result of the exclusion of grants, such as the Culture and Arts Fund, to the cultural artists, etc., and prosecuted the act committed in the process of the exclusion of grants, such as the transmission of lists to the employees of the relevant agencies. However, since each act does not have an alternative relationship with the establishment of a crime, each act is not in the relationship with one another, and thus, it would be problematic to prosecute only the latter. However, as seen earlier, the court made a judgment on the act prosecuted, and did not have any different judgment on

C. In the event of a case involving the abuse of authority and the crime of abusing authority and obstructing another’s exercise of rights, criminal law needs to work and take measures against infringement of legal interests. In this case, the most serious result should be subject to criminal punishment, but the illegal act resulting in such result may also be subject to criminal punishment. However, in the instant case, not the “final act of excluding the grant of the Culture and Arts Fund,” but the “act during the process, such as sending a list, reporting the progress of the process, and delivering the policy of excluding the grant of the grant, etc.” was prosecuted. In this case, the issue that may arise is as follows.

1) The lower court determined to the effect that: (a) the Defendants’ exclusion of the Defendants from the grant of the Culture and Arts Fund, such as the Culture and Arts Fund, constitutes abuse of authority; and (b) the Defendants’ series of instructions related thereto are unlawful; and (c) the Defendants did not have a duty to follow such illegal instructions; and (d) the crime of abusing authority and obstructing another’s exercise of rights constitutes a crime of abusing authority and obstructing another’s exercise of rights, under the premise that the act related to the exclusion of the grant of the Culture and Arts Fund, including the Culture and Arts Fund, can be deemed as a whole abuse of authority. This means that all orders given under the premise that the act of abusing authority, such as the Culture and Arts Fund, may constitute a crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights without regard to the stage, degree, and contents thereof. However, in such a case, the subject of punishment for the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights and obstructing another’s exercise of rights and another’s exercise of rights may be an accomplice.

2) Even if an act was committed in the course of abuse of authority, a separate crime may be established if it infringes on a separate legal interest. It is also necessary to check a harmful environment in which the abuse of authority, such as the Culture and Arts Fund, is possible, and correct any unlawful element in the course of the process of the exclusion of support. Even if an act was committed in the course of the process, if an act was committed in violation of the statutes and other relevant regulations, a separate crime should be established.

In a case where a final act of abusing authority and obstructing another’s exercise of rights could have been established, but the said act could not be punished because it did not meet the elements of a crime, from the perspective of the general public, it may bring about a violation of private law by failing to properly hold responsible for the result of the abuse of authority. In addition, even in a case where an act in the process meets the elements of a crime, if the act is held liable only for the final result of the abuse of authority, it would be insufficient as a liability for the final result of the abuse of authority. On the other hand, if a person is held liable for the result of the final act solely by the process of the act, it

In the end, the crime of abusing authority and obstructing another’s exercise of rights should be held liable for the final act. In the event that the process constitutes the elements of a crime and the punishment is imposed, it is not problematic to institute a lawsuit together. However, it is not desirable to impose liability for the outcome of abuse of authority by instituting only the process without prosecution for the final act.

D. Administrative practice and the crime of abusing authority and obstructing another’s exercise of rights are to ensure the freedom and rights of the people by preventing the public from committing any act stipulated as a crime, thereby protecting the legal interests of the people, and by clarifying that the act is not punishable. The protection of the legal interests by penal punishment and at the same time, it refers to the freedom and rights of the people from arbitrary penal punishment by clarifying the limit of the State’s penal authority. In order to the extent that a public official does not constitute the elements specified in the crime of abusing authority and obstructing another’s exercise of rights, he/she shall ensure that public officials’ freedom of action is not punished even if he/she commits such act, thereby ensuring that public officials’ freedom of action and performing their reasonable public duties are ensured. Interpretation of the elements for the crime of abusing authority and obstructing another’s exercise of rights ought to be consistent with the function

In addition, the crime of abusing authority and obstructing another’s exercise of rights is not established only with the intent or motive of abusing authority and obstructing another’s exercise of rights.

Even in cases where a public official abuse of authority, if he/she causes another party to perform an act without any obligation or interferes with the exercise of other party’s rights, it shall not be punishable. The distinction between a preliminary, conspiracy and attempted crime and setting a difference between an attempted crime and an attempted crime accords with motive to escape from the crime even if he/she plans or commences the crime. In addition, an administrative agency gives the motive to escape from the crime, through the collection and analysis of data, the formulation of plans or plans, research, hearing of opinions, discussions, etc. in advance. The decision-making process is generally conducted through the review of various proposals, such as a bill, bill, and three bills, and even in cases where a specific proposal is decided, it may be withdrawn or corrected in accordance with the opinion of the public opinion or related agency. In such cases, the examination of a specific proposal corresponding to the abuse of authority or preparation for the execution thereof can only be conducted with the examination of a specific proposal corresponding to the abuse of authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights, if the case constitutes “an act without any obligation”.

2) The administration is an active and future-oriented formation action, and there is a difference between the legislation and the judiciary in that it takes specific measures to regulate individual matters and to realize a specific plan. To perform various administrative duties, administration requires an administrative body equipped with human elements, physical resources, and equipment, and these administrative bodies form an administrative organization in a systematic system. In order for today’s complicated and specialized administration to achieve administrative objectives, close cooperation and reasonable coordination between administrative agencies or members are necessary. State functions through administration are not directly performed by the State but indirectly through public agencies, etc.

In this context, a member of an administrative organization, such as a public official or an executive officer or employee of a public institution, has a legal obligation to perform his/her duties within a certain scope, unlike a general private person. If a public official who instructed or demanded an act has abused his/her authority, such act should not be deemed to fall under “when he/she has made another person perform an act for which he/she is not obligated to perform another requirement for the exercise of rights and obstructing another’

It is against the nature of the above administration and the constituent interests of the administrative organization, and is also contrary to the function of the Criminal Code. A public official is subject to punishment.

If the act and result are not predicted, it is difficult to actively perform duties and perform duties passive and passively. Furthermore, the system structure and cooperation and coordination of the administrative organization will not work properly. In light of the fact that public officials are required to high morality, even if the court can be acquitted after being prosecuted for the crime of obstruction of ex officio exercise of rights, such phenomenon may occur solely on the concern that the investigation may be conducted or a public prosecution may be instituted.

Therefore, only when a public official, executive officer, employee, etc. of the other party or relevant public institution violates the principles, standards, or procedures that should be observed in the course of performing his/her duties pursuant to the statutes, statutes, and other relevant regulations, it shall be deemed that the said public official constitutes “when he/she causes a non-obligatory act.” Since the principle of the rule of law ought to be realized inside the administrative domain, it cannot be deemed that the said public official does not constitute a case where he/she causes a non-obligatory act even in cases where he/she causes a public official to violate the statutes, or other relevant regulations. Ultimately, the crime of abusing authority and obstructing another’s exercise of rights is not established even if a public official abused his/her authority to have another party perform a certain act. In such cases, disciplinary action

3) A public official is bound to exercise his/her duties so that he/she can realize the purposes of administration by exercising his/her authority freely, actively and actively, unless he/she causes the other party to engage in an act that does not have any obligation under the above Acts and subordinate statutes. The State’s penal authority shall be limited to cases where there is an act or result that constitutes a constituent element of the crime of aiding and abetting abuse of authority in accordance with the aforementioned clear standards. Such an interpretation accords with the function of the Criminal Act, the principle of supplement of the Criminal Act, the principle of clarity in the principle of

In the instant case, deeming that the exclusion of grants, such as the Culture and Arts Fund, had the other party perform all acts against the other party on the ground that the exclusion of grants constitutes abuse of authority and thus, the crime of abusing authority and obstructing another’s exercise of rights should not be deemed established. On the other hand, even if the act was committed in violation of the statutes and other relevant regulations, the crime of abusing authority and obstructing another’s exercise

E. Finally, Korea has achieved rapid growth and development in a short period to the extent that it is difficult to find the origin from the world. In that process, it is necessary to look back to whether the abuse of authority in each sector of society was not commonized, or whether there was any case in which the abuse of authority was committed or there was no case in which the abuse of authority was committed.

Our public service society needs to examine whether the wrong abuse of authority and practice has been implied due to the influence of the past authoritative era, or whether there was no case of wrong orders and practices without this sexual reflection. However, when the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights is applied excessively, it is likely that the abuse of authority and obstructing another’s exercise of rights and presenting creative and reform opinions may be avoided, thereby preventing national development. Therefore, it is important to create a culture of the public service society that does not assume responsibility for acts in accordance with statutes and other relevant regulations.

As above, I express my concurrence with the Majority Opinion.

Justices Kwon Soon-il

Justices Park Sang-ok

Justices Lee Ki-taik

Justices Kim Jae-hyung

Justices Park Jung-hwa

Lee In-bok and Lee In-chul

Justices Min You-sook

Justices Kim Jong-soo

Justices Lee Dong-won

Justices Noh Jeong-hee

Justices Kim Jong-hwan