In a case where the defendant was prosecuted for obstructing the performance of official duties of Gap in charge of the safety management of office buildings and civil petitioners as the support for the operation of the Anti-Corruption and Civil Rights Commission and the fixed-term worker under its control, the case holding that Gap cannot be deemed a public official

In a case where the Defendant was indicted on charges of interfering with the performance of official duties of Gap in charge of the management support of the Anti-Corruption and Civil Rights Commission as a fixed-term worker under its jurisdiction, the case holding that the lower court erred by misapprehending the legal doctrine on public officials under the Criminal Act, even though it is difficult for Gap to be deemed a public official under the Criminal Act, in light of all circumstances, inasmuch as it is difficult for Gap to be deemed a public official under the law, inasmuch as it is difficult for him/her to be deemed a public official under the Criminal Act who is engaged in the affairs of the State, etc., based on the ground of the law, in view of the following: (a) the term of the contract of the Anti-Corruption and Civil Rights Commission, which was one year; (b) the public official was not a public official appointed; (c) the National Pension Service

Article 136(1) of the Criminal Act

Defendant

Defendant

Public-service Kim Tae

Seoul Western District Court Decision 2014No1367 decided February 6, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. The term “public official” under the Criminal Act refers to a person engaged in the affairs of the State, local governments, and public corporations equivalent thereto based on the legal basis and whose content of labor is not limited to a simple mechanical or physical element (see Supreme Court Decisions 77Do3709, Apr. 25, 1978; 82Do794, Feb. 22, 1983; 2010Do1484, Jan. 27, 201).

2. The record reveals that ① the non-indicted 1 entered into a labor contract with the chairperson of the Anti-Corruption and Civil Rights Commission and the contract period of the contract from January 1, 2014 to December 31, 2014; ② the non-indicted 2 is in charge of the safety management of the office building and civil petitioners’ guidance based on the above labor contract; ③ the non-indicted 3 is not a public official and is enrolled in the National Pension Scheme instead of the public official, and ④ the management and operation regulations of the non-indicted 2 are merely setting the contents of the contract, working conditions, and retirement under the internal rules of the Anti-Corruption and Civil Rights Commission; ⑤ there is no evidence to deem that the non-indicted 2 was engaged in the above work based on the legal basis.

Examining these circumstances in light of the aforementioned legal principles, the Nonindicted Party, who is merely a part-time worker who entered into a labor contract with the chairperson of the Anti-Corruption and Civil Rights Commission and takes charge of the safety management of office buildings and guidance for civil petitioners, is difficult to be deemed

3. Nevertheless, the lower court determined that the Nonindicted Party constitutes a public official in the crime of obstruction of performance of official duties solely on the ground that the support for the management of the Anti-Corruption and Civil Rights Commission and its affiliated fixed-term workers were in charge of safety management of the office building and civil petitioners without deliberation on the grounds of law. In so doing, the lower court erred by misapprehending the legal doctrine on public officials under the Criminal Act

4. If so, the part concerning the obstruction of performance of official duties against the Nonindicted Party in the judgment below should be reversed. However, the court below maintained the judgment of the first instance that sentenced a single sentence on the ground that the remaining guilty part of the judgment of the court below is in an ordinary concurrence relationship with this part. Thus, the judgment

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kwon Soon-il (Presiding Justice)