[1] Whether an official document (including an electronic document) is established when the approving authority approves it by means of signature, etc. (affirmative), and the meaning of the "re-determination" and the standard for determining whether the approving authority approves it

[2] Whether the former Presidential records under the Act on the Management of Presidential Records should be “production” (affirmative), and where the Presidential records have the character of a public document (including an electronic document), whether it should be deemed that they were created into the Presidential records only after the recording was made with the approval of the approving authority (affirmative)

[3] Whether “holding” of Presidential records under Article 2 of the former Presidential Records Management Act refers to “ownership of a de facto position” (affirmative), and whether the same applies even if it does not reach the registration or transfer (affirmative)

[4] Whether the “documents and other electronic records used by public offices” as referred to in the crime of damage, such as public electronic records, include documents used by public offices, etc., documents which were not subject to the prior approval and approval procedure, and documents which were rejected in the process of granting approval, etc. (affirmative), and whether the principal crime is established even in the documents which were not completed (affirmative)

[1] Article 17(1) of the former Electronic Government Act (wholly amended by Act No. 10012, Feb. 4, 2010) provides that “Electronic documents shall be established with the approval (referring to the approval by electronic means prescribed by the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the Rules, the National Election Commission Regulations, and the Presidential Decree) of the relevant documents.” Article 6-3(4) of the former Administrative Regulations (amended by Presidential Decree No. 20982, Sept. 2, 2008; hereinafter “former Administrative Regulations”) provides that “documents management cards shall be established with the approval by electronic text, signature, and processing date indicated by the approving authority on the relevant document management card, and Article 8(1) of the former Electronic Government Act provides that “Any public document shall be established with the approval of all of the amended Administrative Regulations by means of signature (including electronic signature, electronic electronic signature, and electronic electronic signature; hereinafter the same shall apply) and all of the amended Administrative Regulations.”

In full view of the above provisions, official documents (including electronic documents) are established when the approving authority approves the contents of documents by means of signature, etc. In this context, the term “written approval” is an act of expressing his/her intent to be formed in writing, etc. The determination of whether the approving authority has obtained approval shall take into account not only whether the approving authority has signed the document, but also the matters instructed by the approving authority on the document, the kind and characteristics of the document subject to the approval, the provisions of the relevant statutes and the procedures for business affairs.

[2] Article 2 Subparag. 1 of the former Presidential Records Management Act (amended by Act No. 8395, Apr. 27, 2007; hereinafter “former Presidential Records Act”) defines Presidential records as “record created and kept by the President, etc. agencies related to the performance of the duties of the President.” As such, the Presidential records under the former Presidential Records Act should be “production” by the Presidential records creation institution. If the relevant Presidential records have the character of official documents (including electronic documents), it is reasonable to deem that they have been created as the Presidential records only after the official document was made with the approval of the approving authority.

[3] The main text of Article 20(1) of the former Enforcement Decree of the Public Records Management Act (amended by Presidential Decree No. 23383, Dec. 21, 2011) provides that “When a public institution creates or receives archives, it shall assign a registration number of creation or receipt through the electronic records creation system of the public institution and indicate it in the records.” Article 24 of the former Administrative Management Regulations (amended by Presidential Decree No. 20982, Sept. 2, 2008) provides that “Public documents shall be immediately produced, and a creation registration number shall be assigned to the records registry pursuant to Article 20 of the Enforcement Decree of the Public Records Management Act,” thereby distinguishing “registration” from “registration,” which is made after creation of archives, including official documents.

Furthermore, the purpose of the former Presidential Records Management Act (amended by Act No. 8395, Apr. 27, 2007; hereinafter “former Presidential Records Act”) is to enhance the transparency and accountability of the state administration by allowing the public to disclose the records through systematic preservation and management of Presidential records. The transfer procedure prescribed by the above Act is to transfer the records created during the presidential term of office to the Presidential Archives under the National Archives of the Republic of Korea before the end of the term of office in order to maintain the continuity of the state administration. However, deeming that the records created by the Presidential Records Creation institution is not the Presidential records solely on the ground that they were not registered or transferred, it is reasonable to deem that the term “holding” under Article 2 of the former Presidential Records Management Act refers to “the de facto possession,” and it is not different even if they did not reach the registration or transfer.

[4] Article 141(1) of the Criminal Act provides that a person who damages or conceals documents or other things used by public offices, or special media records such as electronic records, etc., or who impairs their utility by other means, shall be punished. “Documents or other electronic records used by public offices” is deemed to include documents prior to the effect of official documents, documents which did not go through the regular receipt and approval procedure, documents which were returned in the process of granting approval, etc., and the establishment of this crime is not affected even if documents are not completed.

[1] Article 17(1) of the former Electronic Government Act (wholly amended by Act No. 10012, Feb. 4, 2010; see current Article 26(1)); Article 6-3(4) and Article 8(1) of the former Regulations on the Management of Presidential Records (Amended by Presidential Decree No. 20982, Sep. 2, 2008; see current Article 6(1) of the Regulations on the Promotion of Administrative Efficiency and Cooperation; Article 6(1) of the Regulations on the Promotion of Administrative Efficiency and Cooperation / [2] Article 2 subparag. 1 of the former Presidential Decree on the Management of Presidential Records (Amended by Act No. 1009, Feb. 4, 2010); Article 8 of the Presidential Decree on the Management of Presidential Records / [3] Article 2 subparag. 1 of the former Regulations on the Management of Presidential Records (Amended by Act No. 100982, Feb. 10, 2010; / [10>

[4] Supreme Court Decision 71Do324 delivered on March 30, 1971 (No. 19-1, 139), Supreme Court Decision 80Do1127 delivered on October 27, 198 (Gong1981, 13377), Supreme Court Decision 98Do360 delivered on August 21, 1998, Supreme Court Decision 2003Do3945 Delivered on May 25, 2006 (Gong2006Ha, 1196)

Defendant 1 and one other

Prosecutor

Law Firm Jeong-chul et al.

Seoul High Court Decision 2015No622 decided November 24, 2015

The judgment below is reversed, and the case is remanded to Seoul High Court.

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

1. Regarding the violation of the Presidential Records Management Act

A. Summary of the facts charged

From December 1, 2006 to February 25, 2008, Defendant 1 served as the Chief Secretary of ○○○○○○○○○○○○○○○ Office. Defendant 2 served as the Chief Secretary of the Presidential Secretariat from February 1, 2006 to February 2008.

Defendant 2 prepared minutes of the ordinary conference (hereinafter “instant minutes”) held in Pyeongtaekyang from October 2, 2007 to October 4 of the same year between the two Koreas, at the time of the event of the North Korea’s ordinary conference (hereinafter “former President of the Republic of Korea”) and Nonindicted 2’s National Defense Chairperson of the North Korea, and created “documents management card” (hereinafter “documents management card”) with “e support system,” which is the integrated work management system of the Cheongdae-dong integrated work (hereinafter “e support system”), and stated necessary documents information, along with the file file of the minutes of “(electronic name 1 omitted).” Defendant 1 approved the document management card of this case, which was delivered through the e-mail system, and Defendant 1 produced the instant electronic signature management card of this case on October 11, 2007, and the digital signature management card of this case was approved by the President of the Republic of Korea on October 21, 207.

From January 30, 2008 to February 14, 2008, the Defendants conspired to request Nonindicted 3 of the △△△△△ Party’s secretary managing the e support system to delete the document management card of this case attached with the instant minutes. Nonindicted 3 deleted the instant document management card from the e support system so that the file of the instant document management card can no longer be recognized by the user, and destroyed the Presidential records without permission.

B. The judgment of the court below

The court below found that the document management card of this case was a document in which the approving authority was scheduled to approve, and that the “documents which were scheduled to be approved” was created as a public document only when the approval was granted, and it was created as a record. The court below held that the document management card of this case was not created as a presidential document because it was difficult to deem that the former president, who was the approving authority, had an intention to approve its contents through the approval and to establish it as a public document. Thus, the court below acquitted the defendant on this part of the facts charged.

C. Judgment of the Supreme Court

1) Provisions and interpretation of Presidential records-related statutes

A) Article 82 of the Constitution declares the principle of documentaryism by stipulating that the act of the President under the laws of the Republic of Korea shall be in writing and that the Prime Minister and the members of the State Council shall serve as the departments of the Prime Minister. The Act on the Management of Archives of Public Institutions was enacted on January 29, 199 to ensure the safe preservation of recorded heritage and to promote the efficient use of recorded information by public institutions by prescribing necessary matters concerning the management of archives. The said Act stipulates that the head of the Central Archives Management Institution shall collect and preserve all archives created or received by the President and its assistant in connection with the performance of the President’s duties (Article 13(1)), thereby embodying the principle of documentaryism regarding the acts of the Republic of Korea as seen earlier. In addition, the said Act requires public institutions to take necessary measures for the management of archives based on the process of performing duties so that all processes and results of performing duties from the formulation to the completion of the duties in order to perform the duties in an efficient and responsible manner (Article 11(1)).

Since then, the Presidential Records Management Act (hereinafter “former Presidential Records Act”) was enacted on April 27, 2007 by Act No. 8395 on April 27, 2007 to provide for matters necessary for the efficient management of Presidential records, such as the protection, preservation, and utilization of Presidential records, and the establishment and operation of the Presidential Archives among public records, to enhance the transparency and accountability of the state administration. In principle, the former Presidential Records Act stipulates that all processes and results related to the duties of the President and the heads of supporting and advisory agencies of the President shall be created and managed as records (Article 7(1)).

B) Furthermore, Article 8 of the former Presidential Records Act provides, “The institution referred to in Article 2 subparag. 1(b) and (c) (hereinafter “Presidential Records Creation Institution”), the record repository of Presidential records creation institutions and the head of the Presidential Archives shall have the Presidential records created and managed electronically, and shall have the records created and managed electronically, and shall have the records created and managed electronically.” In principle, all processes and results related to the President’s performance of duties should be created and managed as electronic records.

The Act on the Management of Archives of Public Institutions was wholly amended by Act No. 8025 on Oct. 4, 2006 as the name of the public records management (hereinafter “former Public Records Act”). The head of a public institution or records management institution shall take measures necessary to electronically create and manage records, and shall endeavor to electronically manage records which have not been created in an electronic format (Article 6). Furthermore, the former Administrative Management Regulations (amended by Presidential Decree No. 20982, Sept. 2, 2008; hereinafter “former Administrative Management Regulations”) refer to a system that electronically manages the entire process of performing duties by using the task management card and document management card (Article 3 subparag. 14); Article 6 of the former Enforcement Decree of the Public Records Management Act (amended by Presidential Decree No. 2383, Dec. 21, 201; hereinafter “former Administrative Records Management Regulations”) provides that the content of the electronic records management system and electronic records management system under Article 2 subparag. 3 of the former Enforcement Decree of the Public Records Management Regulations (amended by Presidential Decree No. 23).

C) The former Presidential Records Act provides for the procedure to transfer the created Presidential records to the central records management institution. To ensure the smooth collection and transfer of Presidential records, the head of the Presidential records creation institution shall notify the head of the record repository under his/her jurisdiction of the current status of the creation of the Presidential records each year and notify the head of the competent record repository thereof (Article 10(1)). The head of the Presidential records creation institution shall transfer the Presidential records to the competent record repository; the record repository shall transfer the Presidential records subject to transfer to the central records management institution before the end of the term of office of the president (the former part of Article 11(1)); and the head of the central records management institution shall have the transferred Presidential records managed by the Presidential Archives at the Presidential Archives (Article 11(3)). The head of the record repository of the Presidential records creation institution shall devise measures necessary for the transfer, such as the confirmation, preparation and adjustment of the list of the Presidential records subject to transfer from six months before the end of

D) The former Presidential Records Act has specific provisions on the destruction of Presidential records in order to prevent unauthorized destruction, etc. of Presidential records and secure a transparent system for the collection, preservation, and management thereof. First, when intending to destroy Presidential records whose preservation period has expired, it shall undergo deliberation by the Presidential Records Management Committee (hereinafter “Committee”). The head of the Presidential Records Creation Agency shall send the list to the head of the Presidential Archives by 60 days before the date he/she intends to discard the list, and the head of the Presidential Archives shall notify the head of the Presidential Records Creation Agency of the results thereof after deliberation by the Committee within 50 days from the date he/she receives the list. In such cases, the head of the Presidential Records Creation Agency shall, without delay, publish the list of the Presidential records whose destruction has been decided through deliberation by the Committee (Article 13(2)). Furthermore, the head of the Presidential Records Creation Agency shall discard the transferred Presidential records after deliberation by the Committee (Article 13(3))

2) Legal principles on the creation and possession of Presidential records

A) Article 17(1) of the former Electronic Government Act (wholly amended by Act No. 1012, Feb. 4, 2010) provides, “Electronic public documents shall be established with the approval (referring to the approval by the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the Rules, the National Election Commission Regulations, and the electronic means prescribed by Presidential Decree) of the relevant documents.” Article 6-3(4) of the former Administrative Management Regulations provides, “documents management cards shall be established with the approval by the electronic text signature and the processing date indicated by the approving authority on the relevant document management card.” Article 8(1) of the former Administrative Management Regulations provides, “Public documents shall be established with the approval by the signature of the relevant document (including electronic text, electronic signature, electronic image, and administrative digital signature; hereinafter the same shall apply).” In addition, Article 6(1) of the current Regulations on the Promotion of Administrative Efficiency and Cooperation, the name of which was modified after the amendment of the former Administrative Management Regulations, thereby establishing the approval authority in the form of the relevant document.”

In full view of the above provisions, an official document (including an electronic document) may be deemed to be established by the approving authority by means of signature, etc. In this context, the term “written approval” is an act of expressing his/her intent to be formed as a document through the signature, etc. of the approving authority. Whether a approving authority has obtained approval or not shall comprehensively consider not only whether the approving authority has signed the written approval but also the matters instructed by the approving authority on the document, the type and characteristics of the document subject to the approval, the provisions of the relevant statutes and the procedures for duties, etc.

B) Article 2 Subparag. 1 of the former Presidential Records Act defines the Presidential records as “record created and kept by the President, etc., in relation to the performance of the duties of the President.” As such, the Presidential records under the former Presidential Records Act should have been “produced” by the Presidential records creation institution. However, where the relevant Presidential records have the character of official documents (including electronic documents), it is reasonable to view that the Presidential records have been created as the Presidential records only after it was approved by the approving authority.

C) The main text of Article 20(1) of the former Enforcement Decree of the Public Records Act provides that “When a public institution creates or receives archives, it shall assign a creation or receipt registration number to the electronic records creation system of the relevant institution and indicate it on the records.” Article 24 of the former Enforcement Decree of the Public Records Management Act provides that “A public document shall be immediately registered in the records register and the creation registration number shall be assigned pursuant to Article 20 of the Enforcement Decree of the Public Records Management Act.” Article 24 of the former Enforcement Decree of the Public Records Management Act provides that “registration shall be made after the creation of archives, including official documents,

Furthermore, the former Presidential Records Act was enacted for the purpose of enhancing the transparency and accountability of the state administration by allowing the public to disclose it through systematic preservation and management of Presidential records, and the transfer procedure prescribed by the above Act is to transfer the records created during the presidential term to the Presidential Archives affiliated with the National Archives of the National Archives to maintain the continuity of the state administration before the end of the term of office. However, in full view of the fact that the fact that records created by the Presidential Records Creation are not registered or transferred is an interpretation that does not fit the purport of the provision of the Act, deeming the Presidential records as not being recorded or transferred is reasonable to mean “holding” defined in Article 2(a) of the former Presidential Records Act, and it is not different even if it did not reach the registration or transfer

3) Facts of recognition

According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are recognized:

A) The “e-support system”, which is the Cheongdae business management system, is the integrated business management system that supervises the entire business system, including the document management system, the task management system, and the records and management. Of these, the document management system is the core to introduce the new document management card, which is “documents management card,” which is the system designed for the purpose of standardizing the document management, which is the basic unit of the administrative affairs, to make the production, distribution, accumulation, and recycling of documents. The document management card consists of three parts: the document management card, which includes the title and intent of the document, the date of preparation, the preparation, and the “management continuity”; the document management card includes the basic outline, such as the document title and intent, the document management system, the document management system, and the document management record management system, and the document management system consists of records management by classifying the types of public relations management and public relations methods selected.

The “statement” of a document management card consists of a document that can identify the purpose and character of the document, and the same text as the instant document is attached to and linked to the file format. As such, the document management card is an electronic document form that contains the content on the decision-making of multiple persons in charge of the work, who participated in the preparation process of the main text attached to the file format, and it is impossible for the originator to delete the document at will after it was created and it is impossible for the originator to delete the document at will, and the process or the additional information is recorded and preserved until it ends.

B) On October 9, 2007, Defendant 2 drafted the document management card of this case in the e support system, which is the integrated business management system, around 15:13, 2007; the title of the subject was “(title omitted); the name of the subject was “(title omitted); the processing classification was “(title omitted);” the process classification was read as “business report”; and the channel was read as “Defendant 1 ○○○○○○○○○○○○○○○; and Nonparty 1’s president”; the “processing opinion” was written as “(processing Opinion 1 omitted); and the “processing opinion” was written as “(processing Opinion 1 omitted)” on the same day at around 16:34 of the same day, along with the file of the minutes of this case.

C) On October 19, 2007, at around 22:55, Nonindicted 1 opened a file of the instant document management card attached to the document of this case approved as above and confirmed the contents thereof. At around 11:23, around the 21st day of the same month, Nonindicted 1 entered “(processing Opinion 2 omitted)” in the “written management opinion” column of the document management card of this case as “(Processing Opinion 2 omitted)” and entered the item of “document processing” into the document management card of this case in the screen of the approving authority, and then the item of “inspection” was classified into “inspection” during perusal, enforcement, re-review, suspension, and suspension. Nonindicted 1, the former president, separately, prepared a file of “(Personal Name 2 omitted).hp” with the content of “the file of this case’s document management card of this case at around 11:56 of the same day.”

D) After entering the items of “inspection” as above by the former president, Nonindicted 1’s former president’s entry, Nonindicted 1’s electronic document signature and processing date was indicated on the instant document management card. After that, Nonindicted 4, Nonindicted 4 in the title of the 201st president, who was in charge of the prior and subsequent inspection of all approval and reporting documents sent to the former president, was processed by delivering the instant document management card returned to him to Defendant 2, who was the drafting, around October 21, 2007. Upon the structure of the e support system, Defendant 2 could select the items of “management” and register the instant document management card, but instead did not select the “management termination” item on January 30, 2008.

E) Electronic records created through the electronic records creation system were created by the person in charge of the management of the electronic records by dividing the “ended” pressing in the system, and the registration number has been created through the records management system, which is a record repository in the Cheong River. The secretary in charge of the management of the Cheong River Department notified the employees belonging to the Cheong River Department to have “management of termination” in the case of electronic documents, such as document management cards, and document management cards, by the end of January 2008, because it is electronically reclassification and transferable, it is possible to have “management of termination” performed, and as such, it is publicly announced that the “management of termination” should be “management of documents” in relation to the document management cards whose work has been completed

F) On February 14, 2008, around 11:30, users changed the web page (URL) address of the e-support system and registered the file of the instant minutes as the recipient of the e-support system, which is impossible for users to access through the e-support system. Defendant 2 prepared the minutes of the instant minutes in accordance with Nonindicted Party 1’s instructions and instructions. Defendant 2, who visited the e-mail system on February 14, 2008, prepared the “(MM Report omitted) report” under the title of “(MM Report omitted).” The file of the revised and supplemented minutes using the computer located in the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and then registered it as the recipient of the e-mail system by attaching the same title as “(MM No. 3 omitted).” Defendant 2 did not report the e-mail (e-mail) or a document management method similar to the e-mail.

G) At the end of the term of office of Nonindicted Party 1, Nonindicted Party 1’s e support system’s “(system table name omitted)” was a process of making certain document management cards, such as test documents and duplicate documents, not recognizable in the e support system by means of deleting information on the pertinent document management cards. The instant document management card also was deleted from the main table of the e support system, making it impossible to recognize it from the e support system due to the deletion of information on the instant document management card.

4) Determination on the creation and holding of Presidential records

A) Comprehensively taking account of the legal principles on Presidential records as seen earlier, the former Presidential Records Act, the legislative purport and content of the former Public Records Act, the purport of introducing document management system that makes the information created in the course of document preparation remain as a record, the content of instructions attached by Nonindicted 1 former president, and the procedures for performing duties through document management system, etc., it is reasonable to deem that the former president, on October 21, 2007, expressed his intention to form and approve the instant document management card with the instant document management record as a public document by creating and approving the signature on the instant document management card after confirming the contents of the minutes of the meeting, and accordingly, the instant document management card was created as a presidential record. The reasons are as follows.

(1) Defendant 2 prepared the minutes of this case on October 9, 2007 and approved the approval to the former president via Defendant 1; Defendant 1 expressed his opinion on the processing of “the time when he participated;” and Nonindicted 1’s former president confirmed the content of the file of the minutes of this case, which was approved, and attached an instruction to the effect that “(the summary of the instructions 1 omitted)” was carried out at around 11:23 of the same month, the document management card of this case includes information on the decision-making of the personnel in charge of the production of the minutes of this case. Such information constitutes information on the decision-making of the personnel in charge of the affairs who participated in the production of the minutes of this case, including the fact that the former president confirmed the content of the file of the minutes of this case, which was approved, and the fact that “(the summary of the instructions 1 omitted) was carried out at around 21:23 of the same month. Such information constitutes the content of the draft (Article 6-3(3) of the former Administrative Regulations.

(2) The document management system of the Cheongdae-dae support system is a decision-making system aimed at making decisions within the agency through the exchange of opinions between the draftor and the superior (contestor) of the document preparation as prescribed by the former Administrative Management Regulations. The document management card form part of the document management system, which accumulates and manages the process and outcome of the communication until it attains a certain job objective.

(3) Article 18 of the former Enforcement Decree of the Public Records Act provides that the meeting minutes shall be prepared when the president holds a meeting (Article 18(1)1), while the meeting minutes shall include the name of the meeting, holding institution, date, time, and place, list of participants and associates, order of progress, agenda items, gist of the meeting, decision matters, and details of voting (Article 18(2)). As such, the meeting minutes shall be deemed as a document that contains objective information, such as the date, time, venue, and meeting, the order of progress of the meeting, and the details of the meeting at the meeting, and the document that contains objective information, such as approval and permission, not a decision-making and disposition intention.

(4) Nonindicted 1’s former president’s instructions attached to the instant document management card are “(a summary 2 omitted).” This is not contradictory to Nonindicted 1’s intent to read and confirm the contents of the instant minutes approved by the former president.

(5) Defendant 2’s duty is to correct any clerical error in the minutes of this case, prepare each week’s accuracy and degree of completion with respect to the contents that may cause misunderstanding, and then register them in the e-support system in the form of a conversation. Such duty arises on the basis of “an instruction” attached to the document management card of this case by the former president of Nonindicted Party 1. As such, the matters directed by the approving authority through the document management card are the basis for the follow-up business process, and the standard for determining whether the document approved by the re-preparation is appropriate.

(6) Article 6-3(4) of the former Business Management Regulations, which was in force at the time, stipulated that “a document management card shall be established in a public document by obtaining approval by means of the electronic text signature and processing date indicated by the approving authority with respect to the relevant document management card.” Nonindicted 1’s former president selected a “return” order with respect to the instant document management card and could return it to the originator without creating electronic text signatures, but instead, selected the “document processing” and “inspection” order without being identical thereto, so that the electronic text signature and processing date may be created.

B) As above, the document management card of this case created by Presidential records was carried out by Defendant 2, who was the draftr on October 21, 2007. Defendant 2 did not select the item “ended treatment” for the document management card of this case and kept the document in the custody of the document, such as continuing review around January 30, 2008. Accordingly, the document management card of this case constitutes the Presidential records produced and possessed by the presidential assisting agency.

5) Judgment on the unauthorized Destruction

When the head of the former Presidential Records Creation Institution intends to destroy the Presidential records whose preservation period has expired, he/she shall discard them after deliberation by the Committee (Article 13), and no one shall destroy, damage, conceal, destroy or leak the Presidential records without permission (Article 14). Article 14 provides for punishing a person who destroys the Presidential records without permission, in violation of Article 14 (Article 30 (1) 1). Accordingly, the Presidential records created shall not be arbitrarily destroyed without following the destruction procedure provided for in Article 13 of the former Presidential Records Act.

In the end of the term of office of Nonindicted 1, the record reclassification work for the transfer of archives was conducted at the Cheongbu Department as of the end of the term of office of the former president, and the process was conducted to make the test documents and the document management cards, etc. corresponding to duplicate documents or the duplicate documents not recognizable from the e support system. However, the document management card of this case cannot be deemed as duplicate documents or the test documents. Therefore, if the Defendants deleted the information so that the e support system would no longer recognize the document management card of this case, it constitutes the destruction of Presidential records, and the NIS created and preserved the “(name of minutes omitted)” does not constitute grounds to justify the above reversal act.

6) Sub-decisions

Nevertheless, the court below erred by misapprehending the legal principles on the creation of Presidential records and the establishment of official documents, which affected the conclusion of the judgment, and the grounds of appeal by the prosecutor pointing this out are with merit.

2. As to damage, such as public electronic records

A. Summary of the facts charged

The Defendants, who were the reporters and examiners of the instant document management card, invalidated the instant document management card, which is an electronic record used by public offices, by preventing the e-support system from recognizing the instant document management card any longer by eliminating information corresponding to the e-document management card, such as the e-document management card, the e-document management card, etc.

B. The judgment of the court below

The lower court acquitted the Defendant of this part of the facts charged on the grounds that the instant document management card cannot be deemed electronic records used by public offices on the following grounds.

1) The file of the instant minutes is an extract before the final completion, and the Defendants prepared and supplemented the instant minutes in accordance with the direction of the former president of Nonindicted Party 1, and there is no evidence to deem that the Defendants intended to destroy or leak the completed minutes.

2) The file of the instant minutes cannot be deemed as electronic records used by public offices no longer. The instant document management card, which forms an integral part with the file of the instant minutes, cannot be deemed as electronic records used by public offices. Therefore, even if Defendant 2 deleted information on the instant document management card, it cannot be deemed as invalid electronic records used by public offices, and there is no other evidence to acknowledge it.

C. Judgment of the Supreme Court

1) Article 141(1) of the Criminal Act provides that a person who damages or conceals documents or other articles used by public offices or special media records such as electronic records shall be punished. “Documents and other electronic records used by public offices” includes documents prior to the effect thereof as official documents (see Supreme Court Decision 71Do324, Mar. 30, 1971; 80Do1127, Oct. 27, 1980; 98Do360, Aug. 21, 1998; 2003Do3945, May 25, 2006; and even if documents are not completed, the establishment of the crime is not affected.

2) As seen earlier in light of the aforementioned legal principles, the document management card of this case, accompanied by the instant minutes, was planned to create the signature with the intent of approval by Nonindicted 1’s former president, and to take follow-up measures pursuant to “the instructions” attached thereto. As such, the document management card of this case constitutes electronic records used by public offices, taking full account of the fact that the information recorded in the document management card of this case is the basis for follow-up business process. Therefore, the deletion of basic information by the Defendants from recognizing the document management card of this case constitutes a crime of damage, such as public electronic records, etc. under Article 141(1) of the Criminal Act.

3) Nevertheless, the lower court erred by misapprehending the legal principles as to electronic records used by public offices, which affected the conclusion of the judgment, on the grounds stated in its reasoning on different premises, and the grounds of appeal by the prosecutor pointing this out are with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)