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The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

A. The judgment of the court below

The Defendant was prosecuted for the crime of abusing authority and obstructing another’s exercise of rights (Seoul Central District Court Decision 2018 High Court Decision 2426), and the lower court found the Defendant guilty of the facts charged in the instant case and sentenced the Defendant to two years of imprisonment.

B. Judgment before remand

Although the Defendant filed an appeal against the lower judgment on the grounds of mistake of facts, misapprehension of legal doctrine, or unreasonable sentencing, the lower court rendered a judgment dismissing the Defendant’s appeal on July 18, 2019.

(c) Judgment of remand;

The Defendant filed an appeal on the grounds of misapprehension of legal principles as to the above judgment, and the Supreme Court held that even if based on the facts charged and the reasoning of the judgment of the court below, it cannot be deemed that the Defendant had AO prepare the instant personnel proposal, and that it did not constitute “when he had a prosecutor perform an act not obligated to perform” as referred to in the crime of abuse of authority in violation of the principles and standards of personnel management for the prosecutor,” and that the judgment of the court below reversed the judgment of the court prior to the remand on the grounds that it erred by misapprehending the legal principles

2. Summary of grounds for appeal;

A. Legal principles

① Since the personnel management of Y is a result of a comprehensive examination of service, inspection, reputation, assignment route, etc., and it cannot be readily concluded that the Defendant violated the principles and standards of public prosecutor personnel management, such as the violation of the career inspection and the posting system of public prosecutors, it cannot be concluded that the Defendant’s act of abuse of authority against the Defendant cannot be deemed as a case where the Defendant had AO prepare the instant personnel management plan, even if there is a fact that the Defendant had AO do not have a duty to do so, ② the Defendant, who is the J Bureau, has no general authority and authority over the prosecutor’s personnel management, and the standards and procedures for performing duties related to the prosecutor’s personnel management are not specified in Acts and subordinate statutes, and ③ AO is merely an assistant who does not have a unique authority and role to apply the standards for performing duties and participate in the procedure, the crime of abuse of authority against the Defendant cannot be established. Thus, the lower

B. Error of mistake

① Around January 29, 2018, the Defendant was unaware of the sexual indecent act of Y in the funeral hall, and was never aware of the sexual indecent act of Y in the funeral hall, and there was no motive to induce the Defendant to resign, and accordingly, the Defendant did not have any motive to induce the Defendant to resign, and ③ did not instruct the AO to assign Y as BA branch office, the lower court found the Defendant guilty of the facts charged in the instant case and erred by misapprehending the facts and affecting the conclusion of the judgment.

C. Unreasonable sentencing

The punishment of the court below (two years of imprisonment) is too unreasonable.

3. Ex officio determination

Before the judgment on the grounds for appeal, the prosecutor shall keep the existing facts charged as the primary facts charged at the trial after remand, and as of March 10th sentence of the facts charged, the defendant has abused the authority of the Director-General of the Department of Justice concerning the decision of the case that is prepared by the Department of Justice, and let the public prosecutor in charge of AM and the public prosecutor in charge prepare a personnel plan to transfer BV to BV branch offices in conflict with the personnel principles and standards of the Ministry of Justice and to transfer BV branch offices of the Ministry of Justice." "The defendant has abused the authority of the Director-General of the Department of Justice concerning the decision of the case that is prepared by the Department of Justice to transfer BV branch offices of the Department of Justice to transfer BV branch offices of the Department of Justice and applied for an amendment to amend the indictment to add BV branch offices of the Department of Justice, and since this court permitted this, the judgment below can no longer be maintained.

However, despite the above reasons for ex officio reversal, the defendant's assertion of mistake or misapprehension of legal principles as to the primary facts constitutes still subject to the judgment of this court.

4. Judgment on the defendant's assertion of mistake of facts or misapprehension of legal principles (Judgment on the principal facts charged)

A. Summary of the primary facts charged

The defendant, while serving as the Director General from W, has been in charge of the affairs related to prosecution administration and the personnel affairs of the prosecution, and has performed the duties to confirm the personnel affairs of the J state.

J and AM have started to prepare a draft of a plan for prosecutor's personnel management in the second half of 2015 on June 10, 2015. On July 20, 2015, "Personnel Guide in the second half of 2015, including detailed schedule and contents, was reported to the president of the prosecution and the Minister of Justice." On August 17, 2015, after deliberation by the Prosecutor Personnel Committee of the prosecution on August 20, 2015, published "the details of personnel movement" in the second half of 2015.

On August 17, 2015, the Prosecutor Personnel Committee of the 107th Prosecutor's Office decided that "in the case of a general prosecutor, only the necessary minimum limit shall be implemented according to the factors such as the occurrence of vacancies in the second half of the year." In the case of a general prosecutor, the personnel management district is less than the number of persons to be transferred to major public officials such as the Ministry of Justice and the Seoul Central Office, and in the case of a local office, the local office has taken into account that there are many applicants to be reappointed according to the situation of childcare or home situation, and in principle, the person who has served for less than one year from September to two years shall be transferred for more than two years, and in principle, the person shall be transferred for more than two years.

In the process, AO received personnel-related data from the Supreme Prosecutors' Office until July 16, 2015, such as inspection and reward data of prosecutors subject to personnel affairs, case statistics, and case studies. By July 17, 2015, AO received opinions on personnel affairs from various agencies of various levels, and collected basic data through AM and service management system to confirm the assignment route, desired and performance rating of prosecutors subject to personnel affairs. Based on personnel basic data, IO placed the position of prosecutors subject to personnel affairs according to the principles and criteria of prosecutor personnel affairs, and the demand of employees of each office.

As a result, AO had been working as a career prosecutor at the regional office of 1.5 on December 31, 2012, Y, based on the records of personnel, such as awards and decorations awarded AP commendation on June 3, 2012, service evaluation, assignment route, etc., including audit data received AP warning at the time of office audits, YY was prepared in the AR District Prosecutors' Office on July 17, 2015, 7. 20 on July 22, 2015, 7. 23, 7. 27. 7. 28, 8. 28. 8. 8. 8. 8. 8. 1. 5. 1. 2. 2. 2. 2. 3. 5, 206 . 1. 5 . 3 . . . 3 . . 5 . . 3 . . 8 . . . . 5 . . . 'AMTT 'Y' ' ' . . . '. . . . . . . . . . . . . . . '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meanwhile, around October 30, 2010, when there are a number of prosecutors who have observed a sexual indecent act on their Y at the time, the Defendant was paid attention to AC, etc. in the process of ascertaining the truth by specifically identifying the relevant facts in the AD office of the Ministry of Justice, and the Defendant was gradually spreading and uneasiness inside the prosecutor's office through AG, etc. on August 17, 2015, the Defendant reported personnel proposals from AT and AO at the time of holding the Prosecutor's Personnel Committee on August 17, 2015, and came to know of the details of the placement of Y, concerns that if the problem related to Y continues to occur, it would hinder their management in the future. In the latter part of 2015, the Defendant instructed the Prosecutor's living at the Seoul and the long distance, which is the basis for Y's living, to make a proposal to transfer Y to a forest difficult to carry out his duties with childcare and work.

However, from July 17, 2015 to August 17, 2015, AO moved Y in accordance with the personnel principles and standards of prosecutor's office, AR District Public Prosecutor's Office, AS District Public Prosecutor's Office, AV District Public Prosecutor's Office, RX Public Prosecutor's Office, AX District Public Prosecutor's Office, AY Public Prosecutor's Office, AY Public Prosecutor's Office, AZ Public Prosecutor's Office, and AZ Public Prosecutor's Office, and there was no record of any change in personnel affairs to be assigned only once to the Public Prosecutor's Office.

Nevertheless, on August 17, 2015, the Defendant directed AO to prepare a personnel proposal that imposes disadvantages in personnel affairs, such as posting Y, who worked at AO branch office, which is an office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the

In the end, the above personnel proposal, which is transferred to the AV B branch office, BC branch office, and AB branch office, is a career public prosecutor who had served in the BB branch office, BC branch office, and BB branch office, is a career public prosecutor who has served in the BA branch office, and it is not an example contrary to the essence of the career public prosecutor's assignment system, which gives preferential treatment to the following personnel, as well as those who have served in the BA branch office, and is obviously contrary to the principles and standards of the public prosecutor's personnel management.

As a result, the defendant abused the authority of the Director of the Department of Justice concerning the decision on the personnel proposal prepared by the Department of Justice and caused a prosecutor in charge of the AM and the prosecutor in charge of the J to prepare a personnel proposal to transfer Y to BA branch office against the principles and standards of prosecutor personnel.

B. The judgment of the court below

For the following reasons, the court below rejected the defendant's and defense counsel's assertion, and found the defendant guilty of this part of the charges by abusing the authority of the Director-General of the Department of Justice concerning the decision on the personnel proposal prepared by the Department of Justice and allowing a prosecutor in charge of the JM and the prosecutor in charge to prepare a personnel proposal to transfer Y to BA branch office against the principles and standards of prosecutor's personnel management.

1) As to the assertion that the prosecutor in charge of inspection personnel applies the criteria for performing his duties and does not grant the unique authority and role to participate in the procedure

In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “an abuse of authority and obstructing another’s exercise of rights” means the case where a public official unlawfully exercises matters falling under general official’s authority and authority, namely, in a formal and external manner, a public official appears to have performed an act other than legitimate authority. The criteria for determining whether abuse of authority constitutes abuse of authority shall be determined by taking into account all the elements, such as the purpose of the public official’s act of performing his/her duties, necessity and reasonableness when considering the situation in which the act was performed, and whether the exercise of authority satisfies the statutory requirements that permit the exercise of authority. In addition, “when a public official makes another person perform an act without an obligation” means the case where the standards and procedures for performing his/her duties are specifically stated in the Acts and subordinate statutes, and where a person in charge of the duties is granted a person in charge of the duties with the inherent authority and role to apply the standards and procedures for performing his/her duties, such act constitutes “where a public official assists in performing his/her duties in violation of such standards and procedures” (see, etc.

Article 35 (1) of the Prosecutor's Office Act provides that "A prosecutor's personnel committee shall be established in the Ministry of Justice to deliberate on important matters concerning the appointment, transfer, and other personnel affairs of prosecutors," and Article 35 (4) of the Prosecutor's Office Act provides that "A private committee which is a prosecutor shall deliberate on the establishment of basic plans concerning personnel administration of the prosecutor's office, the amendment and repeal of statutes concerning personnel affairs of the prosecutor's office, and the principles and criteria for

Furthermore, according to the above evidence duly adopted and examined by the court below, the prosecutor personnel committee system was established in order to ensure the fairness of the prosecutor's personnel by amending the Prosecutor's Office Act on April 13, 1981. On January 20, 2004, the prosecutor personnel committee changed the prosecutor's personnel committee to the advisory organization in order to ensure that the prosecutor's personnel is more impartial and transparent through the revision of the Prosecutor's Office Act. The prosecutor's personnel committee was held at least 107 times before the second half of 2015 and passed a resolution on the matters concerning the principles and criteria of the appointment and transfer of the prosecutor, and in the case of AM of the JA of the Ministry of Justice, it can be recognized that the prosecutor's personnel committee was organized and managed under the name of "the prosecutor personnel committee's personnel committee".

Therefore, matters concerning the principles and criteria for the appointment and transfer of prosecutors accumulated through the deliberation and resolution of the Prosecutor Personnel Committee shall be based on the principles and criteria of the prosecutor's personnel to be followed by the prosecutor in charge of the prosecutor's personnel management, including the Director-General and the Director-General of the Department of Justice and the Director-General. Therefore, the prosecutor in charge of the prosecutor's personnel management has a duty to comply with the principles and criteria of such prosecutor's personnel management in preparing a personnel proposal for the prosecutor's personnel management. Therefore, when preparing a personnel proposal for the prosecutor

2) As to the assertion that the criteria and procedures for the prosecutor’s performance of duties are not specifically specified in the statute

According to the above legal principles, the standards and procedures for performing duties are specifically specified in the statutes, and the person in charge of the duties shall be granted the unique authority and role to apply the standards and procedures for performing duties to the person in charge of the duties and to assist the person in performing the duties in violation of such standards and procedures, and the case where the person in charge of the duties performs the duties without obligation. However, the standards and procedures for performing duties in this context do not mean that the standards and procedures for performing duties are specifically stipulated in the statutes, but shall include any specific cases where the obligation to comply with the standards and procedures for performing duties is based on the statutes.

Therefore, under Article 35(1) and (4) of the Prosecutor’s Office Act, insofar as a prosecutor in charge of personnel management, including the J of the Ministry of Justice and the AM director, bears an obligation to comply with the principles and criteria of appointment and transfer of a prosecutor accumulated through deliberation and resolution of the private committee, which is the prosecutor, due to the performance of the obligation that the prosecutor in charge of personnel management, including the director general of the J of the Ministry of Justice and the AM director, should comply with the standards and procedures for the appointment and transfer of a prosecutor accumulated through deliberation and resolution of the private committee, matters concerning the principles and criteria of appointment and transfer of a prosecutor, which may constitute the contents of the performance of duties

3) Whether the Defendant was aware of the indecent act, and whether the Defendant was aware of such an indecent act

In light of the circumstances stated in the judgment below, the court below found that the defendant forced Y to commit an indecent act on the part of the defendant, such as Y to Y's body, Y to Y's right-side Y, and continuing to use Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's body, and Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's body and Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's Y's her own will and her Y's Y's Y's Y's Y's own body.

4) As to whether there exists a motive to disadvantage the Defendant in personnel management

In a situation where the defendant is aware that he/she committed an indecent act against Y by himself/herself, he/she became aware of the fact that the truth-finding on his/her Y was conducted at the AD office of the Ministry of Justice, and that such fact was widely known inside and outside of the prosecution, it can be said that there was sufficient motive to induce Y to resign in a way that would cause a disadvantage in personnel management in the future, because such a problem is likely to cause a trouble in his/her position management.

5) As to the Defendant’s assertion that he did not give an instruction to the AO to prepare an unfair personnel proposal against the BA branch office

In light of the circumstances in its holding, the court below determined that the personnel plan that places YY to BA branch offices is practically in violation of the principle and standard of prosecutor's personnel management, and that AO, a working-level officer, shall be deemed to have violated the standards and procedures for performing his/her duties. Furthermore, it is difficult to accept that AO, a working-level officer, has prepared a personnel plan that places Y in BA branch offices, such as AR District Public Prosecutor's Office, AS Public Prosecutor's Office, AV Public Prosecutor's Office, AX Public Prosecutor's Office, AY Public Prosecutor's Office, AY Public Prosecutor's Office, AZ's Office, and AZ Branch's Office, and then prepared a personnel plan that places Y at BA branch offices after holding the Prosecutor's Personnel Committee, which is located in BB branch offices as above, and that it is difficult to accept that BA branch offices prepared a personnel management plan that violates the principles and guidelines of prosecutor's personnel management by independently placing YA branch offices, without the defendant's overall personnel management.

C. Summary of the judgment remanded

1) The term “where a public official compels another person to perform an act without any obligation” in the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act (hereinafter “the crime of abusing authority and obstructing another’s exercise of rights”) refers to the time when a public official made another person perform an act without any obligation under the law. Therefore, even if a public official allows a person in charge of practical affairs to do a fact-finding act with respect to matters belonging to his/her official authority, this is merely a result of the public official’s performance of duties, and thus, it does not constitute a case where a public official does not have any obligation in principle. However, if the standards and procedures for performing his/her duties are specifically stated in the Acts and subordinate statutes and have a person in charge of practical affairs applied the standards and procedures for performing his/her duties and are given the unique authority and roles to participate in the procedures, the determination of whether a public official has been granted any duty-related official’s performance of duties in violation of such standards and procedures constitutes “where a person in charge of occupational affairs.”

2) In light of the following circumstances revealed in the aforementioned legal principles, relevant statutes, records, etc., it is difficult to deem that the Defendant had AO prepare the instant personnel plan and had AO assist the Defendant in performing his/her duties in violation of the standards and procedures for performing his/her duties, thereby allowing AO to perform an act without any legal obligation.

A) The appointment and assignment of a prosecutor shall be made by the President on the recommendation of the Minister of Justice (Article 34(1) of the Prosecutor’s Office Act). Meanwhile, under Article 2 of the Government Organization Act, a subsidiary organ of a central administrative agency shall be the Vice Minister, Vice Minister, chief of office, director general, and director general, except as otherwise expressly provided for in the same Act and other Acts, and a central administrative agency may have assistant organs to assist the head of the agency, Vice Minister, Vice Minister, office chief, office chief, and director general. In addition, according to the organization of the Ministry of Justice and its affiliated agencies, the Secretary General shall assist the Minister of Justice with the authority to propose the prosecutor’s personnel affairs (person, organization, etc.), and the prosecutor’s personnel affairs shall assist the general prosecutor’s affairs

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

B) The Minister of Justice shall prepare a fair standard of evaluation to evaluate the performance and quality of a prosecutor, and the above standard of evaluation of qualities shall include loyalty, integrity, and friendship. The Minister of Justice shall conduct evaluation of the prosecutor according to the above standard of evaluation and reflect the results of such evaluation in personnel management, such as assignment, transfer, etc. (Article 35-2 of the Prosecutor's Office Act). In order to deliberate on important matters concerning the appointment, transfer, and other personnel of a prosecutor, the Prosecutor's personnel committee shall be established in the Ministry of Justice (Article 35 of the Prosecutor's Office Act). The Prosecutor's personnel committee shall deliberate on matters concerning the principles and criteria of appointment, transfer, and change of office of a prosecutor (Article 35 of the Prosecutor's Office Act). The JJ of the Ministry of Justice has organized the principles and criteria of personnel management accumulated through the deliberation and resolution of the Prosecutor's Personnel Committee in the form of data collection, and has prepared a proposal of change of personnel management by applying the above principles and criteria of personnel management of the prosecutor. The principle of personnel management of a prosecutor shall be reflected in personnel management of a prosecutor's experience of overseas service.

On July 26, 2005, the system of assignment to the public prosecutor's personnel committee was the most recent subject of deliberation by the public prosecutor's personnel committee, and the public prosecutor's career examination by the public prosecutor's office is that the principle of replacement is to take into account the desire of the public prosecutor's personnel management, and that the public prosecutor's career examination by the public prosecutor's office requires that the public prosecutor's service performance or qualification is strictly assigned to the public prosecutor's personnel committee on August 17, 2015 related to the public prosecutor's personnel in the second half of 2015 of this case. The placement system by the public prosecutor's office was placed to the public prosecutor's personnel committee and it is to be considered that the public prosecutor's personnel management in the next time is relatively high for the public prosecutor's career service while serving in the public prosecutor's office.

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

C) As such, a wide range of discretion is recognized to the personnel change of the public prosecutor, and personnel standards are also premised on comprehensively taking into account the various standards and considerations. In light of the circumstances such as that the personnel change of the public prosecutor takes the assignment of a large number of personnel subjects and places of work in a manner that sets the position and places of work in a lump sum and affects mutual chains, a working-level officer who prepares a personnel proposal under the direction or delegation of a personnel authority has the discretion to prepare a personnel proposal by comprehensively taking into account the aforementioned various standards and considerations for all personnel subject to personnel change, and where each of such standards or considerations cannot be satisfied in the process, he/she shall be deemed to be able to apply by determining

Therefore, even if the contents of the instant personnel plan re-transfered to BA branch office, a career inspector who served in the office of the Korea Communications Commission (the Korea Communications Commission), such circumstance alone cannot be readily concluded to be contrary to the essence of the system of the Korea Communications Commission (the Korea Communications Commission), or contrary to the principles and standards of the inspector’s personnel management. Furthermore, the instant personnel plan cannot be concluded to be contrary to the principles and standards of the inspector’s personnel management, solely on the ground that the person in question

Ultimately, even based on the facts charged in the instant case and the reasoning of the lower judgment, it cannot be deemed that the Defendant’s act of having AO prepare the instant personnel proposal, and it does not constitute “a case where the Defendant had a prosecutor engage in an act of non-performance of obligation as referred to in the crime of abuse of authority in violation of the principles and standards of personnel

D. The judgment of this Court

In light of the legal principles of the judgment of remanding, even if based on the facts charged around the instant case, it cannot be deemed that the Defendant had AO prepare the instant personnel proposal, and it does not constitute a case where the Defendant had a prosecutor perform an act without any obligation as referred to in the crime of abuse of authority in violation of the principles and standards of public prosecutor’s transfer personnel as prescribed by the law. Nevertheless, the lower court convicted the Defendant of this part of the facts charged on the ground that the Defendant constituted “where the Defendant had a defendant perform an act without any obligation” in the crime of abuse of authority. In so doing, the lower

5. Conclusion

Therefore, the appeal by the defendant is well-grounded, and the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without examining the defendant's allegation of unfair sentencing, and it is again decided as follows after hearing.

【Discretionary Judgment】

1. Judgment on the primary facts charged

The summary of the primary facts charged against the defendant is as described in Section 4-A (A) above, which is not proved of facts constituting a crime as described in Section 4-C and Section 4 (d) above.

2. Judgment on the ancillary charges added at the trial after remand

A. Summary of the conjunctive charge

As the 10th sentence of the primary facts charged in this case, the defendant abused the authority of the Director General of the JJ concerning the decision of the case which is prepared by the JJ, and let the public prosecutor in charge of private affairs, who is the JM and the prosecutor, transfer the prosecutorY to BV BA branch office of the JJ in breach of the personnel principles and standards, so that the defendant is not obligated to perform his duties." As such, the defendant abused the authority of the Director General of the JJ concerning the decision of the case which is prepared by the JJ branch of the JJ branch of the JJ branch of the JV branch of the BV branch of the BV branch of the public prosecutor's office to transfer the prosecutorY to BV branch of the BA branch of the J branch of the public prosecutor's office

B. Determination

1) Relevant legal principles

The crime of abusing authority and obstructing another’s exercise of rights is not immediately established solely on the ground that a public official abused his/her authority. The abuse of authority and obstructing another person from performing an act for which he/she practically does not have any legal obligation or interfering with another person’s specific exercise of rights, and the occurrence of such result ought to be caused by the act of abusing authority (see, e.g., Supreme Court Decisions 2002Do3453, Apr. 15, 2005; 2010Do12754, Oct. 11, 2012).

In order to determine whether an abuse of official authority constitutes abuse of official authority and whether the other party has a legal obligation to perform such an act, it should be determined individually by examining whether the abuse of official authority constitutes abuse of official authority and whether the other party has a legal obligation to perform such an act, separately from whether the abuse of official authority constitutes abuse of official authority. It would result in denying the identity of the requirement for the establishment of a crime, i.e., abuse of official authority if one of the objective elements of Article 123 of the Criminal Act is satisfied. This is a separate element for the establishment of crime, which is distinguishable from that of abuse of official authority. Therefore, whether an abuse of official authority constitutes abuse of official authority and whether the other party has a legal obligation to perform such an act. If the abuse of official authority is recognized as a violation of the autonomy of the requirement for the establishment of a crime, i.e., "if the abuse of official authority directly causes another party to perform an act without an obligation."

In cases where the other party to abuse of authority is a private person, barring special circumstances, if he/she does not have an obligation to comply with the ex officio, so that he/she does not have an obligation to do any act, he/she may constitute “where he/she does so.” However, in cases where a public official or an executive or employee of a public institution, etc. is a public official or an officer or employee who is assigned a certain public duty pursuant to statutes, the other party is in a position to perform his/her duties pursuant to

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 agency 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, in cases where a public official abused his/her official authority to allow a person to perform a certain act, if the other party is a public official or an executive or employee of a related institution, it is difficult to view that the case falls within the scope of duties in the form, content, etc., and provided that the other party does not violate the principles, standards, and procedures that should be observed in the course of performing his/her duties in accordance with the statutes and other relevant regulations, barring special circumstances (see Supreme Court Decision 2018Do2236, Jan. 30, 202).

2) Specific determination

Article 56 of the State Public Officials Act provides that "All public officials shall observe Acts and subordinate statutes and perform their duties faithfully," and Article 57 of the same Act provides that "public officials shall obey orders of their superior officers in the course of performing their duties." Meanwhile, Article 2 (1) of the same Act designates public officials as career public officials and special career public officials, while Article 2 (2) of the same Act designates public officials as special career public officials and public officials, and Article 2 (2) of the same Act designates public officials as public officials in general service and public officials in special service.

In light of the above relevant laws and regulations, a prosecutor has the duty to observe the laws and regulations as state public officials and to faithfully perform his/her duties, and such duty does not change depending on the nature of the order of transfer personnel of a prosecutor. Furthermore, it is difficult to view that a prosecutor is subject to transfer under Articles 35-2 and 35 of the Public Prosecutor's Office Act and the State Public Officials Act, unlike the Local Public Officials Act, is premised on the public official's consent in transfer and transfer (see Article 29-3 of the Local Public Officials Act). Considering these facts, if a public official is transferred to BV District Public Officials' BA branch office, he/she has the duty to perform his/her duties as a public prosecutor at BA branch office, but if a public official exceeds the scope of duties prescribed by the laws and regulations or causes a person to perform acts in violation of the duties prescribed by the laws and regulations, it may constitute "where he/she causes a person to perform an act in violation of the duty prescribed by Article 123 of the Criminal Act" as stated in the ancillary facts of this case.

Ultimately, even if based on the conjunctive facts charged in this case, the Defendant did not constitute “the time when the Defendant had Y work for transfer to BV District Prosecutors’ Office BA branch offices” and did not constitute “the time when he had had Y perform an act without any obligation” as referred to in the crime of abuse

3. Conclusion

Thus, since both the primary facts charged and the ancillary facts charged of this case constitute a case where there is no proof of crime, the defendant shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant shall be publicly notified pursuant to the main sentence of Article 58(2) of the Criminal

Judges Senior Superintendent;

Judges Kim Yang-tae

2) On August 20, 2015, Y submitted a resignation letter to the head of the O branch immediately after personnel management, Y withdrawn it on August 25, 2015 and took childcare leave.