2015Do3468 A. Abuse of official authority and obstruction of exercise of rights

B. Performance of official duties by fraudulent means

1. (a) A;

2. (a) B

3.(a)(b) C

4. (b) D.

Defendant A and Prosecutor ( Defendants)

Law Firm AW

Attorney AX (for Defendant A)

Daegu District Court Decision 2014No814 Decided February 5, 2015

December 23, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant A’s ground of appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted by the lower court, it is justifiable for the lower court to have found the Defendant guilty of the instant conjunctive charges, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on

In addition, pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of the punishment

2. As to the Prosecutor’s Grounds of Appeal

A. As to Defendant A and B’s assertion, the abuse of official authority and obstruction of another’s exercise of rights in relation to the issuance of a acting judge

In the exercise of rights under Article 123 of the Criminal Act, "an abuse of authority" means that a public official unlawfully exercises matters belonging to his/her general authority and authority, namely, when a public official appears to perform his/her duties in a formal and external manner, or his/her substance does an act other than legitimate authority. The criteria for determining whether an abuse constitutes an abuse shall be determined by taking into account all the elements such as the purpose of the public official's specific act of performing his/her duties, the necessity and reasonableness of the situation in which the act was conducted, and whether the exercise of authority satisfies the statutory requirements that permit the exercise of authority. "when a public official makes another person perform an act without an obligation" in the exercise of his/her authority, "when a public official causes a public official to perform an act without an obligation under the law." Even if a public official allows a public official to perform an act assisting the performance of his/her duties, this is merely a public official's act of assisting the performance of his/her duties, and thus, it does not constitute "when performing an act without an obligation" in the exercise of authority.

In full view of the circumstances stated in its reasoning, the lower court acquitted Defendant A and B of this part of the facts charged on the ground that Defendant A and B’s act of having N prepare a document ordering N to act as the Secretary General of the Council on behalf of the Republic of Korea on the ground that it is merely merely an act of having N, a working-level official, engaged in a fact-finding act assisting the Defendant’s performance of duties, and that it does not constitute an “act of obstructing the exercise of rights without any obligation” as referred to in the

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to "in case of obstructing the exercise of rights without any obligation", and there were no errors in the misapprehension of legal principles as to "in case of obstructing the exercise of rights".

A criminal intent as a subjective constituent element for the crime of obstructing the exercise of rights under Article 123 of the Criminal Code includes the perception that the abuse of authority other than the awareness that it interferes with the exercise of rights. Thus, in a case where there is no perception that "the other party is not obligated to perform an act," it is not merely a mere fact that there is no perception of illegality of his crime, but a mere fact that there is no intention for the crime that makes the other party perform an act that is not obligated to perform an act by abusing authority from the beginning of the year, and therefore it does not constitute a crime of obstructing the exercise of rights (see Supreme Court Order 92Mo29 delivered on July 26, 1993).

In full view of the circumstances stated in its reasoning, the lower court acquitted Defendant A and B of this part of the facts charged on the ground that it is difficult to view that Defendant A and B had been aware that the retroactive application of the J-P performance processing guidelines was illegal to the extent that there is no reasonable doubt, and therefore, it cannot be deemed that Defendant A and B had an intentional intent to cause Defendant A and B to commit an act that is not obligated to perform by abusing official authority.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence

3) As to obstruction of the performance of official duties by fraudulent means

The court below found Defendant A and B not guilty of this part of the facts charged on the ground that the retroactive application of the above guidelines constitutes a business to be examined and assessed by work performance rating members, since the authority to examine and decide whether to grant performance points in accordance with the Work Performance Evaluation Guidelines, and thus, it cannot be deemed that the work of the Work Performance Evaluation Committee was obstructed by Defendant A and B’s deceptive scheme since the work performance rating members decided to grant K performance points by applying the work performance points retroactively without being aware of relevant regulations, and it cannot be deemed that Defendant A and B knew that the retroactive application of the performance points system was illegal.

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, there is no violation of the principle of free evaluation of evidence.

B. As to Defendant C and D’s assertion

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, it is just to maintain the judgment of the court of first instance which acquitted Defendant C of the facts charged against Defendant C and the facts charged against Defendant D, on the grounds as stated in its reasoning, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik

Justices Lee In-bok

Justices Ko Young-han

Justices Kim Gin-young