[직무유기등피고사건][고집1980(형특),1]
Whether the crime of abandonment of duties is established separately where a police official forges and uses an official document.
Even if the defendant, who was a police officer, was admitted to a suspect such as gambling, etc., but forged the relevant public document in order to deprive the non-indicted of his/her identity, and prepared a false public document, only the crime of forging the public document, which is the crime of commission, is established, and the crime of abandoning duties, which is the crime of omission, is not established.
Article 122 of the Criminal Act, Article 225 of the Criminal Act
Supreme Court Decision 72Do722 Decided May 9, 1972 (Supreme Court Decision 10158 Decided 10158, Supreme Court Decision 20 ② ② B/14, summary of decision Article 227(15) of the Criminal Act, Article 229 and Article 122 of the Criminal Act in the Official Gazette
Defendant
Prosecutor
Jeonju District Court Decision 78Gohap59 decided Feb. 1, 200
The prosecutor's appeal is dismissed.
The gist of the grounds for appeal by the prosecutor is as follows: first, if the defendant intentionally forged or fraudulently prepared official documents in order to conceal the criminal facts of the non-indicted who aided and abetted the defendant's gambling and used them, the court below held the defendant not guilty on the grounds that only the crime of forging official documents, the crime of forging false official documents, the crime of preparing false official documents, and the crime of neglecting duty, is established in such a case, and the crime of neglecting duty, which is the crime of omission, is not established separately, and the Supreme Court Decision 72Do722 Decided May 9, 1972. However, the above contents of the judgment are prepared and submitted as if the party who obtained the permission for new construction of the building did not have completed new construction in violation of the terms and conditions of the permission, and thus, it is hard to find the defendant not guilty of the facts against the non-indicted 4 person related to the non-indicted 1, who committed the act of violating the conditions of permission. Second, the court below's decision did not err by misapprehending the legal principles as to the non-indicted person's evidence or report.
Therefore, in full view of the first point of appeal, the facts that the defendant forged or falsely prepared relevant public documents in order to conceal the criminal facts of the non-indicted. It is reasonable to view that the crime of preparing false public documents was committed separately when the crime of preparing false public documents is established, since the defendant was committed by forging the relevant public documents and preparing false public documents in order to deprive the non-indicted as a suspect for gambling, etc., but the crime of omitting the above non-indicted was committed by the non-indicted as a crime of omission without any justifiable reason. Since the crime of preparing false public documents is established, it is reasonable to view that the crime of neglecting duties, which is a crime of omission, should not be established separately when the crime of preparing false public documents, is committed. Since the defendant's motive, means, degree of damage, age of the defendant, character and behavior of the defendant, the circumstances of the defendant after the appeal, as well as the circumstances that the prosecutor asserts that the punishment is too unfair, it is not reasonable to accept this issue.
Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.
Judges Yoon Jin-soon (Presiding Judge)