A. Whether the military personnel in charge of farmland affairs did not take any measures on the illegal diversion of farmland constitutes a crime of abandonment of duties

(b) The case holding that it constitutes the crime of preparing false official documents and holding that it is reasonable to prepare and submit to the approving authority a field business trip statement, written examination statement, and written opinion to the effect that it is reasonable to grant permission with knowledge that military personnel should not obtain permission to divert farmland;

(c) The relationship between the crime of abandonment of duties and the crime of false official document, and the crime of uttering;

A. The military personnel in charge of farmland affairs have the duty to report the fact to the head of the Gun and to order the head of the Gun to restore the original state, further file a complaint, or take other appropriate measures. Thus, the military personnel in charge of farmland affairs have the duty to exempt the illegal diversion of farmland from their duties and not taking any measures is likely to undermine the State's function concerning the conservation and management of farmland and cause damage to the people.

(b) The case holding that it constitutes the crime of preparing false official documents and holding that it is reasonable to prepare and submit to the approving authority an on-site business trip statement, written examination statement, and written opinion to the effect that it is reasonable to grant permission with knowledge that military personnel should not obtain permission to divert farmland;

C. In a case where a public official finds an illegal act and prepares and events a false public document for the purpose of actively concealing the illegal act without taking appropriate measures in accordance with his/her duties, the illegal state in the course of performing his/her duties shall be deemed to be included in the scope from the time of preparation of the false public document, and the preparation of the false public document and the crime of abandonment of duties, which is the crime of omission, are established only, but the crime of abandonment of duties is not established separately. However, if the preparation of the above document and written opinion of examination, which are the crime of omission, applies for permission for temporary diversion of farmland, are applied for permission for temporary diversion of farmland, it is not intended to conceal the illegal use of farmland directly.

(a) Articles 122(b) and 227, and 229(c) of the Criminal Act;

A. Supreme Court Decision 65Do984 delivered on March 15, 1966 (No. 14 ① type 32) 82Do3065 delivered on March 22, 1983 (Gong1983,775) 85Do193 delivered on August 13, 1985 (Gong1985,1276)

Defendant

Defendant

Attorney Regular Passenger

Daejeon District Court Decision 92No1080 delivered on November 27, 1992

The appeal is dismissed.

We examine the grounds of appeal.

On the first ground for appeal

In the case of the crime of abandonment of duties, there is a subjective perception that the duties shall be discarded, and the time when the duties shall be deserted is not all the cases of neglect of abstract duties under the Acts and subordinate statutes, but it refers to the case where the duties may be damaged and caused damage to the people, such as the unauthorized removal of the workplace, the temporary abandonment of the duties, etc.

However, according to the facts established by the court of first instance cited by the court below, the defendant, who was in charge of overall farmland affairs, such as permission to divert farmland and accusation, while working for the industries of the Sinjin-gun and agricultural and fishing village development. On October 16, 191, the defendant, who was in charge of general farmland affairs such as permission to divert farmland, was the employee of the Sinjin-gun Office, the representative director of the Sinjin-gun-si Office, which is the office of the Sinjin-gun-gu, Seoul Special Metropolitan City on 191, notified the non-indicted 1, who was in charge of four pieces of farmland such as absolute farmland, such as the gathering of soil and stones from the 45 and 2 lots of land, and used them as the access road to the stone collection site, and did not take any measures to confirm the site on the 22th of the same month after the delivery of evidentiary materials such as pictures and photographs, and if he wishes to divert farmland, he did not order the head of the Gun to divert the farmland for official purposes, and did not have any authority to do so.

In addition, in view of the circumstances indicated in the record, such as the circumstance where the defendant knew of the above illegal diversion of farmland and the details thereof, and in particular, the defendant was also designated as an investigator for the illegal diversion of farmland at the time of conducting a general investigation into the illegal diversion of farmland, and in view of the circumstances indicated in the record, it cannot be said that the defendant did not have any subjective perception about the omission of his duties, and the circumstances in the argument of the lawsuit alone cannot be viewed differently.

In this regard, the court below's decision is justified in taking measures against the defendant's above so-called as a crime of abandonment of duty, and there is no error of law by misunderstanding the legal principles as to the requirements for the establishment of a crime of abandonment of duty like the theory of lawsuit.

On the second ground for appeal

The court of first instance cited by the court below, based on macroficial evidence, accepted an application for permission of temporary diversion of farmland from non-indicted 1 on October 21, 1991 and confirmed the aforementioned illegal diversion of farmland. Thus, the defendant is not required to permit temporary diversion of farmland prior to restoration of the farmland to its original state and prior to filing an application via due process, despite his well-known knowledge, for the purpose of exercising the right to grant permission of temporary diversion of farmland. The above illegal diversion of farmland was prepared on the 24th of the same month without stating all the above illegal diversion of farmland as a result of an on-site business trip and investigation into the above farmland, and as a result, it was reasonable to grant permission, and thus, the defendant must do so. The court below erred by misapprehending the legal principles as to the above acts of use of the official document, making a false statement or making a false statement of opinion, and submitting it to the head of the Si/Gun for the examination and approval of each one of the above acts of use of the official document. The court below's reasoning is without merit.

The issue was that the defendant prepared the above contents, because he decided that the expansion of public interest due to permission is more necessary than the harm of temporary diversion of farmland by taking account of various circumstances at the time. However, in the records, it is only recognized as merely a simple vindication of the defendant, and the precedent pointing out the theory of lawsuit cannot be seen as appropriate in this case. There is no reason for this issue.

On the third ground for appeal

If a public official finds an illegal act and does not take appropriate measures in accordance with his duties, but instead prepares and events a false public document for the purpose of actively concealing such an illegal act, the illegality of the worship in such a case is included in the crime since the preparation of the false public document, and the preparation of the false public document, which is the crime of commission, is established only, and the crime of abandonment of duties, which is the crime of omission, is not established separately (see Supreme Court Decision 82Do2210, Dec. 28, 1982; 72Do722, May 9, 1972).

However, in this case, if the defendant prepares the above statement of name and written opinion of examination falsely, it is limited to the permission of temporary diversion of farmland by the non-indicted 1, and it is not directly intended to conceal the illegal diversion of farmland by the non-indicted 1. Thus, the court below is justified in holding that the above false official document preparation, the crime of uttering and the crime of abandonment of duty are in the relation of substantive concurrent crimes, and there is no error of law by misunderstanding the legal principles as to the relation between the preparation of false official document, the relation of the crime of uttering and the crime of abandonment of duty like the theory of lawsuit.

On the fourth ground

We cannot accept the argument that the court below erred in the misapprehension of legal principles as to a legitimate act, since the defendant abandons his duties and prepares and uses a false official document, even if considering the circumstances alleged in the theory of litigation as determined by the court below.

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

Justices Yoon Young-young (Presiding Justice)