(영문) 대법원 2021. 3. 11. 선고 2020도12583 판결

beta

본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.

Main Issues

Summary of Judgment

[Reference Provisions]

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 대법원 2021. 3. 11. 선고 2020도12583 판결

[특정범죄가중처벌등에관한법률위반(국고등손실)[피고인 1, 피고인 3에 대한 예비적 죄명 및 피고인 2에 대한 일부 예비적 죄명: 특정경제범죄가중처벌등에관한법률위반(횡령), 피고인 2, 피고인 10에 대한 일부 예비적 죄명: 업무상횡령, 피고인 2에 대한 일부 예비적 죄명: 업무상배임, 피고인 2, 피고인 3에 대하여 일부 인정된 죄명: 업무상횡령]ㆍ위증ㆍ국가정보원법위반(피고인 9에 대하여 일부 변경된 죄명: 강요)ㆍ업무방해ㆍ노동조합및노동관계조정법위반ㆍ업무상횡령ㆍ뇌물공여ㆍ허위공문서작성ㆍ허위작성공문서행사ㆍ정보통신망이용촉진및정보보호등에관한법률위반(명예훼손)][공2021상,792]

Main Issues

[1] The meaning of "competent income" prohibited from direct use by the head of a central government agency pursuant to Article 7 of the National Funds Management Act

[2] The meaning of the crime of abusing authority and obstructing another’s exercise of rights, and the standard for determining whether the act constitutes a “use” of official authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights

[3] The purpose of the National Intelligence Service Act separate penal provisions for the crime of abusing authority and obstructing another’s exercise of rights / Matters to be considered when determining whether a crime of violating the National Intelligence Service Act was established due to abuse of authority

[4] The meaning of "person" who is the object of a crime of violating the National Intelligence Service Act due to abuse of authority

[5] Where several crimes constitute a single comprehensive crime, and where the starting point of the statute of limitations is the starting point (=when the final criminal act ends)

[6] In regard to abuse of authority committed by an employee of the National Intelligence Service for a certain period of time as a single and continuous criminal intent in the course of performing a series of duties regarding the same case, whether a single comprehensive crime may be established even if the other party is several (affirmative), and the standard for determining whether a single comprehensive crime is established in an individual

Summary of Judgment

[1] Article 7 of the Management of the National Funds Act provides, “The head of a central government agency shall transfer revenues under his/her jurisdiction to the National Treasury and shall not directly use such revenues, except as otherwise expressly provided for in other Acts.” This may be evaluated as more concrete in terms of the budget totalism declared in Article 17 of the National Finance Act. Meanwhile, Article 2 Subparag. 2 of the Management of the National Funds Act provides that “revenue” shall be paid or paid to the Fund as revenues, such as taxes, etc., and Article 2 Subparag. 1(a) of the same Act provides that “National Funds shall be paid or paid to the Fund as revenues.” Article 7 Subparag. 1(a) of the same Act provides that “National Funds shall have the same value as all cash and cash paid to the Fund (referring to funds under Article 3(1)2) in accordance with statutes or contracts, etc., and shall be prescribed by Presidential Decree (hereinafter “cash, etc.”). According to Articles 5 and 6 of the same Act, revenue shall be collected or received as prescribed by statutes, and the head of a central government agency in charge.”

In full view of the language and purport of the above statutory provisions, it is reasonable to view that the “competent revenue” prohibited by Article 7 of the National Funds Management Act refers to the cash, etc. managed by the head of a central government agency through the collection and collection procedure, as it was paid to the State in accordance with statutes or contracts.

[2] The crime of abusing authority and obstructing another’s exercise of rights (hereinafter “the crime of abusing authority”) is established in a case where a public official has committed an unlawful or unjust act in the exercise of official authority with regard to matters falling under the general official authority and authority. The term “the abuse of authority” in this context refers to a case where a public official unlawfully or unreasonably exercises his/her authority concerning matters falling under the general official authority and authority, namely, where a public official appears in a formal and external manner to perform his/her duties, or its substance appears to fall under the general official authority and authority of a public official. In order for a certain duty to constitute a matter falling under the general official authority and authority of a public official, there is a need for legal basis therefor. Although there is no express provision, the legal basis is not necessarily required, it is interpreted as falling under the official authority and authority of the public official in question, and it is included in the general authority and authority as referred to in the crime of abusing authority in a case where it is deemed sufficient to cause the other party to perform an act or interfere with his/her rights. Whether it constitutes abuse of authority should be determined in consideration of various elements such as:

In the crime of abuse of authority, “when a public official has another person perform an act without any obligation” means when a public official abused his/her official authority to cause another person to perform an act without any obligation under the law. Therefore, even if a public official causes a person in charge of business to perform a fact-finding act assisting the performance of his/her official authority with respect to matters belonging to his/her official authority, this is only connected to the performance of his/her official’s duties, and thus it does not constitute a case where he/she does not have any obligation in principle. However, if the standards and procedures for performing his/her duties are specifically stated in statutes and the person in charge of business has been granted the own authority and role to apply the standards and procedures for performing his/her official duties to a person in charge of business who assists in the performance of his/her duties in violation of such standards and procedures, it constitutes “when a person in charge of business has assisted another person to perform an act without any obligation.” Whether a person in charge of business violated such standards and procedures and whether it is a legal obligation should be determined individually in accordance with relevant statutes, etc.

[3] A National Intelligence Service (hereinafter “National Intelligence Service”) has the authority to investigate crimes, etc. prescribed in the National Security Act, which may be accompanied by the presidential force prior to the enforcement of the current National Intelligence Service Act (wholly amended by Act No. 17646, Dec. 15, 2020). The duties of the National Intelligence Service, such as collecting, preparing, and distributing information, conducted by the National Intelligence Service as an intelligence agency, are difficult to be subject to surveillance or checks by other national agencies due to the unique characteristics of the implementation method, which are closely related to the necessity of maintaining security and the necessity of maintaining security. In addition, prior to the enforcement of the current National Intelligence Service Act (wholly amended by Act No. 17646, Dec. 15, 2020), the National Intelligence Service has the authority to investigate the matters related to the National Security Act, etc. Where such authority is abused due to the nature of its legal status, de facto influence, duties, and method of performing its duties, etc., infringing on fundamental rights of the National Assembly throughout the political, economic and cultural development.

Article 11(1) of the former National Security Planning Act (amended by the National Intelligence Service Act on January 21, 1999) was amended by Act No. 4708, Jan. 5, 1994; Article 11(1) prohibiting abuse of authority by the head, Deputy Director, and other employees of the National Security Planning Department (hereinafter “National Security Planning Department”); and Article 19(1) punishing the crime of abusing authority and obstructing another’s exercise of authority (hereinafter “the crime of abusing authority”) under the Criminal Act may also be deemed as an anti-sexual action based on such historical experience. In light of the legislative background of the above provisions maintaining the contents up to the current National Intelligence Service Act, the purport of the Act separate provisions regarding punishment for the crime of abusing authority is to prevent the abuse of authority by the president, Deputy Director, Planning and Coordination Director, and other employees assigned to him from infringing on the rights and rights of other agencies and organizations or by force.

Therefore, the establishment of a crime of violation of the National Intelligence Service Act due to abuse of authority should be determined by comprehensively taking into account not only the legal principles applied to the crime of abuse of authority but also the legislative process and purport of the above separate penal provision, the legal status and influence of the NIS, the peculiarity of the duties and the method of performing such duties in charge of the NIS, the strict direction system of the NIS itself.

[4] Since "person", which is the object of the crime of violating the National Intelligence Service Act due to abuse of authority, refers to all others other than the perpetrator and accomplice, not only subordinate public officials of the perpetrator, but also other public officials may be included in the crime.

[5] Where a number of acts falling under the name of the same crime continues to be conducted with a single and continuous criminal intent for a certain period and the legal benefits from such damage are the same, each act shall be punished by a single comprehensive crime. In such a case, the statute of limitations shall run from the time when the final criminal act has been completed.

[6] The main purpose of the crime of abusing authority and obstructing another’s exercise of rights under the Criminal Act is to protect the national legal interest, which is fair exercise of the State’s function, and also the crime of violating the National Intelligence Service Act due to abuse of authority is also the same. Therefore, with respect to the abuse of authority committed by an employee of the National Intelligence Service who continued to commit a single and continuous crime for a certain period in the course of performing a series of duties pertaining to the same case, even if the other party is several, a single comprehensive crime may be established. However, depending on whether each abuse of authority constitutes a single comprehensive crime, the completion of the statute of limitations and the scope of res judicata effect may vary depending on whether the crime constitutes a concurrent crime. Thus, in individual cases, whether a single comprehensive crime is established ought to be determined by thoroughly examining the same type of crime subject to execution of duties, the attitude and motive of

[Reference Provisions]

[1] Article 2 subparag. 1(a) and (2), Article 3(1)2, Article 5, Article 7 of the Management of the National Funds Act, Article 17 of the National Finance Act / [2] Article 123 of the Criminal Act, Article 123 of the former National Security Planning Act (amended by Act No. 5681 of Jan. 21, 199), Article 11(1) (see Article 13 of the current National Intelligence Service Act), Article 19(1) (see Article 22(1)) of the former National Intelligence Service Act (amended by Act No. 1764 of Dec. 15, 202), Article 11(1) (see Article 13 of the current National Intelligence Service Act), Article 20 of the former National Intelligence Service Act (wholly amended by Act No. 17646 of Dec. 15, 202), Article 123 of the National Finance Act / [3] Article 123 of the Criminal Act, Article 20(2(1) of the former National Intelligence Service Act

Reference Cases

[2] Supreme Court Decision 2010Do13766 Decided February 10, 201 (Gong2011Sang, 602), Supreme Court Decision 2014Do11441 Decided February 13, 2018 (Gong2018Sang, 610), Supreme Court Decision 2018Do18646 Decided March 14, 2019 (Gong2019Sang, 882), Supreme Court en banc Decision 2018Do14303 Decided August 29, 201 (Gong2019Ha, 1936), Supreme Court Decision 2019Do11698 (Gong200, 503) Decided January 9, 202, Supreme Court Decision 2007Do3089 Decided March 29, 2012

Defendant

Defendant 1 and 10 others

Appellant

Defendants and prosecutor (Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 7, Defendant 8, Defendant 9, Defendant 10, and Defendant 11)

Defense Counsel

Attorneys Han-soo et al. and 18 others

The judgment below

Seoul High Court Decision 2020No486, 2018No3185 decided August 31, 2020

Text

Of the judgment below, the part of conviction against Defendant 2 (including the part of acquittal in the reason) and the part of acquittal against Defendant 7 due to abuse of authority against the National Intelligence Service employees, the part of acquittal against Defendant 7 (including the part of acquittal in the reason), and the part of acquittal against Defendant 9 due to abuse of authority against the employees of the National Intelligence Service, and the part of acquittal against each of the violation of the National Intelligence Service Act due to abuse of authority against the employees of the National Intelligence Service, are all reversed, and this part of the case is remanded to the Seoul High Court. Defendant 1, Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 10, and Defendant 11 of the Prosecutor, Defendant 1, Defendant 4, Defendant 5, Defendant 10, Defendant 2, Defendant 7, and Defendant 9 of the Prosecutor’s appeal against Defendant 8 are all dismissed. The public prosecution against Defendant 8 is dismissed.

Reasons

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

1. Judgment on Defendant 1’s grounds of appeal

A. Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss by National Treasury, etc.) (hereinafter “Aggravated Punishment Act”)

1) The court of final appeal shall examine only the propriety of the final appeal within the scope of the grounds for final appeal, as a subsequent review of the final appeal judgment, which was subject to a review by the appellate court. As a result, the grounds other than the grounds for final appeal asserted by the appellant as the grounds for final appeal, or the matters determined by the appellate court as subject to a review by its authority, cannot be considered as the grounds for final appeal, and further inclusion of the grounds in the scope of the final appeal is contrary to the ex post facto review structure of the final appeal (see Supreme Court en banc Decision 2017Do1

2) Defendant 1’s grounds of appeal are not the grounds of appeal, or the lower court determined ex officio as the subject of judgment in this part of the facts charged against Defendant 1. Accordingly, Defendant 1’s grounds of appeal are not legitimate grounds of appeal.

B. The perjury part

Defendant 1 appealed against the entire judgment of the court below, but did not state the grounds for objection in the petition of appeal or the appellate brief regarding the perjury portion.

2. Judgment on Defendant 2’s grounds of appeal

A. Whether the authority to prosecute has been abused due to separate indictment

1) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to prosecute a substantial disadvantage to the defendant, thereby significantly deviating from the discretionary power, such exercise of the authority to prosecute can be denied by deeming the effect of the indictment as an abuse of the authority to prosecute. However, the exercise of the authority to prosecute is not sufficient merely by negligence in the course of performing his/her duties, and at least with a certain intention (see Supreme Court Decision 2018Do1047, Sept. 28, 2018, etc.).

2) On the grounds indicated in its reasoning, the lower court determined that, even if the indictment against Defendant 2 was filed by dividing it into nine cases, such indictment does not constitute a case where the right to prosecution was significantly deviated from that of arbitrary exercise of right to prosecution.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on the abuse of authority to prosecute.

B. Whether there is a misapprehension of legal principles as to the meaning of a person under Article 2 subparagraph 1 of the Act on Liability of Accounting Personnel, Etc. (hereinafter “Accounting Personnel Liability Act”).

The lower court determined that Defendant 2 constituted “other persons in charge of national accounting” as stipulated in subparagraph 1 (k) of Article 2 of the Act on Liability for Accounting Personnel, on the grounds as stated in its reasoning in the part of violation of the Specific Crimes Aggravated Punishment (Loss on National Treasury, etc.) (limited to the part of the crime) of each of the Specific Crimes Aggravated Punishment Act against Defendant 2, and that the above Defendant satisfied the requirements for the identification for establishing the crime

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the meaning of persons stipulated in Article 2 subparag. 1 of the Accounting Personnel Liability Act, thereby adversely affecting the

C. The part concerning the violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.) related to the online activities of the 3 Vice Commissioner of the National Intelligence Service (hereinafter “the 3 Vice Director”).

For the reasons indicated in its holding, the lower court convicted Defendant 2 of this part of the facts charged on the premise that the total amount of the budget paid as the activity expense of the so-called “overline Team” related to the Cyber Team Team Chairperson constituted the amount of the national treasury’

(d) Whether the recognition of reduction is illegal

For the reasons indicated in its holding, the lower court found Defendant 2 guilty of occupational embezzlement on the grounds of the reduced portion of violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.) relating to Defendant 2’s activities, as follows.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the prohibition of analogical interpretation, which is the derived principle of no crime without

E. Part on the violation of the National Intelligence Service Act due to the involvement in politics by Nonindicted 1, a foundation (hereinafter “Nonindicted 1”) through Nonindicted 1 (hereinafter “Nonindicted 1”).

For the reasons indicated in its reasoning, the lower court found Defendant 2 guilty of this part of the facts charged against Defendant 2, on the ground that Defendant 2 engaged in the political activity through Nonindicted Corporation 1.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the meaning of “participation in political activities” under Article 9 of the former National Intelligence Service Act (amended by Act No. 12266, Jan. 14, 2014), thereby adversely affecting the conclusion

F. The part on the violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) regarding the activities of Nonindicted Corporation 1

For the reasons indicated in its holding, the lower court convicted Defendant 2 of this part of the facts charged on the premise that the total amount of the budget paid to Nonindicted Corporation 1’s activities constituted the National Treasury’s loss.

G. The part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to the delivery of KRW 200 million to Nonindicted 2 by the Cheongdae-gu Office of General Affairs and Planning.

For the reasons indicated in its holding, the lower court found Defendant 2 guilty of this part of the facts charged, on the ground that, in collusion with the former president of Nonindicted 3, Defendant 2 used KRW 200,000,000, which is strictly limited to the scope of the NIS’s duty, for the purchase of souvenirs outside the scope of the NIS

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the legal nature of the State subsidy special project cost and the intent

H. The part of occupational embezzlement due to the delivery of KRW 50 million to Nonindicted 4 to the secretary of Cheongdae-gu Civil Affairs2.

For the reasons indicated in its reasoning, the lower court convicted Defendant 2 of this part of the facts charged, premised on Defendant 2’s delivery of KRW 50 million to the secretary Nonindicted 4 of the Blue House Civil Affairs.

I. The part concerning the offering of bribe and the violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) due to the delivery of KRW 100 million to Nonindicted 5 of the National Assembly

1) On the grounds indicated in its reasoning, the lower court determined that this part of the indictment did not constitute a case where the right of prosecution was significantly deviates from the right of prosecution as an arbitrary exercise of the right to

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on abuse of public prosecution rights.

2) On the grounds indicated in its reasoning, the lower court convicted Defendant 2 of this part of the facts charged on the premise that Defendant 2 provided KRW 100 million to Nonindicted 5 of the National Assembly members.

(j) Violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) and offering of bribe due to the presidential non-indicted 3's delivery of USD 100,000 to the president

The lower court found the Defendant guilty of this part of the facts charged on the grounds indicated in its reasoning.

(k) The portion on the preparation of false official document and the display of false official document

The lower court found the Defendant guilty of this part of the facts charged (excluding the part on acquittal in the grounds) on the grounds indicated in its reasoning.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on co-principal.

(l) Violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) and the part concerning occupational embezzlement due to the misappropriation of funds related to the most business entity (excluding the facts charged in preliminary charge);

1) Article 7 of the Management of the National Funds Act provides that “The head of a central government agency shall transfer income under his/her jurisdiction to the National Treasury and shall not directly use such income, except as otherwise expressly provided for in other Acts.” This may be evaluated as more concrete in terms of the budget totalism declared in Article 17 of the National Finance Act. Meanwhile, Article 2 Subparag. 2 of the Management of the National Funds Act provides that “revenue” shall be paid as tax or other income from a national fund under subparagraph 1(a) of the same Article, and Article 2 Subparag. 1(a) of the Management of the National Funds Act provides that “National Funds shall be paid as tax or other income from a fund, and Article 3(1)1(a) of the same Act provides that “National Funds shall have the same value as all cash and cash paid to the Fund (referring to funds under Article 3(1)2)” as prescribed by Presidential Decree (hereinafter “cash, etc.”). According to Articles 5 and 6 of the same Act, revenue shall be collected or received as prescribed by statutes, and the head of a central government agency in charge.

In full view of the language and purport of the above statutory provisions, it is reasonable to view that “competent revenue” prohibited by Article 7 of the National Funds Management Act refers to the cash, etc. managed by the head of a central government agency through the collection and collection procedure, as it was paid to the State in accordance with statutes, contracts, etc.

2) On the grounds indicated in its reasoning, the lower court found Defendant 2 guilty of this part of the charges on this part, on the ground that, on the grounds indicated in its reasoning, Defendant 2 used the funds relating to the most business entity, which was established by, and managed and operated by, the NIS, as a leasing business entity, all of the proceeds that were punished by the NIS (hereinafter “consultations”) and the money that was received from, the NIS and managed under the name of “passing money” (hereinafter “the instant amount”) constituted “competent revenue” prohibited from direct use pursuant to Article 7 of the Management of the National Funds Act.

3) We examine the reasoning of the lower judgment in light of the aforementioned legal doctrine.

A) First of all, the profits from the consultation among the funds related to the most business entity of the Health Center and the NIS, which are actually revenues earned by the NIS according to the lease contract, constitutes “competent revenues” as stipulated in Article 7 of the Management of the National Funds Act.

B) Next, considering the following factors: (a) the process and status of the establishment and operation of the foregoing company; (b) relationship between the NIS and the most serious business entity; and (c) the subject and method of the actual management of the instant provisional revenues, it is reasonable to view that the instant provisional revenues merely vary in the form and form of custody without maintaining the nature of the budget allocated to the NIS as it is. Thus, the instant provisional revenues are not cash acquired by the State pursuant to the “Acts and subordinate statutes or contracts, etc.”; and (b) it is difficult to regard the instant provisional revenues as the “repaid expenditure” that should be incorporated into the “revenue” pursuant to Article 29(2) of the National Funds Management Act. Therefore, the lower court’s determination that the instant provisional revenues constitute “competent revenue” as provided for in Article 7 of the National Funds Management Act is difficult to accept.

However, even if the instant provisional revenues do not constitute “competent revenues” that are prohibited from direct use, the use of the instant provisional revenues having the nature of the NIS’s budget for purposes beyond the scope of duties may still constitute a violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) and an occupational embezzlement crime. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court’s determination that Defendant 2 recognized Defendant 2’s intention of unlawful acquisition on the premise that each business promoted by Defendant 2 in relation to the facts charged was out of the scope of duties of the NIS is justifiable.

4) Ultimately, there is some inappropriate part of the lower court’s reasoning as to whether the instant provisional revenue constitutes “revenue under the jurisdiction” under Article 7 of the Management of the National Funds Act, but the lower court’s conclusion that found the Defendant guilty of this part of the facts charged is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine

(m) The part on violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) due to financial assistance related to the third labor union

For the reasons indicated in its reasoning, the lower court found Defendant 2 guilty of this part of the facts charged against Defendant 2, on the ground that Defendant 2 instructed financial assistance related to the third labor union.

(n) The remainder

Defendant 2 appealed to the entire guilty portion of the lower judgment, but did not state the grounds of objection in the petition of appeal or the appellate brief on the remainder.

3. Judgment on Defendant 3’s grounds of appeal

For the reasons indicated in its holding, the lower court affirmed the first instance judgment convicting Defendant 3 of the violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and the part concerning occupational embezzlement related to the activities, which are offline of the psychological leaflet, among the facts charged against Defendant 3.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding criminal intent and functional control of a co-principal, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations

4. Judgment on Defendant 4’s grounds of appeal

Of Defendant 4’s grounds of appeal, the remainder of Defendant 4’s grounds of appeal, excluding the allegation of unfair sentencing, shall not be deemed a legitimate ground of appeal, since they were neither asserted as grounds of appeal nor considered as subject

According to Article 383 subparag. 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 shall be allowed. In this case where Defendant 4 was sentenced to a minor sentence, the argument that the punishment is too unreasonable is not legitimate grounds for appeal.

5. Judgment on Defendant 5’s appeal

Defendant 5 did not submit the appellate brief within the deadline for submitting the appellate brief, and did not state the grounds for the appeal in the petition of appeal.

6. Judgment on Defendant 6’s ground of appeal

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that convicted Defendant 6 of the facts charged.

7. Judgment on Defendant 7’s ground of appeal

A. The part on the violation of the National Intelligence Service Act due to the political involvement in the field politics, such as Nonindicted 6 and Nonindicted 7, relating to universal welfare debate and the assertion of the anti-value registration fee in the field of camping.

For the reasons indicated in its holding, the lower court found Defendant 7 guilty of this part of the facts charged, on the ground that Defendant 7’s functional control over this part of the crime can be recognized.

B. The portion of occupational embezzlement due to reimbursement of expenses for public opinion poll

C. The part on the violation of the National Intelligence Service Act due to Nonindicted 8’s political involvement in the documents pertaining to “the actual state of the corrective operation of the Seoul Metropolitan City market direction and response direction”

D. Part on the violation of the National Intelligence Service Act due to Nonindicted 9’s political involvement in the check on political activities

For the reasons indicated in its holding, the lower court convicted Defendant 7 of this part of the facts charged by deeming that Defendant 7’s functional control over this part of the crime can be recognized.

E. Part on the violation of the National Intelligence Service Act due to Nonindicted Corporation 1’s involvement in politics

For the reasons indicated in its holding, the lower court convicted Defendant 7 of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on prohibition of engaging in political activities and requirements for establishment of a

F. Part on the violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) regarding the activities of Nonindicted Corporation 1

For the reasons indicated in its holding, the lower court convicted Defendant 7 of this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the calculation of joint principal offenders and the

G. Whether the method of examining sentencing and determining sentencing is unlawful

1) Since Article 51 of the Criminal Act, which provides for the conditions of sentencing, is interpreted to be subject to the discretion of the court in relation to the determination of punishment widely, the argument that the fact-finding court erreds facts on the basis of sentencing or did not properly examine the circumstances that constitute the conditions of sentencing, is not a legitimate ground for appeal, unless the grounds for appeal as to the validity of the determination of punishment are adjudicated in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years was pronounced pursuant to Article 383 subparagraph 4 of the Criminal Procedure Act (see, e.g., Supreme Court Decisions 87Do1410, Jan. 19, 198; 90Do1940, Oct. 26, 1990; 2020Do8358, Sept. 3, 2020).

2) The allegation in the grounds of appeal on this part is merely a misunderstanding of facts about the basis of sentencing, and thus, cannot be a legitimate ground of appeal in this case where Defendant 7 was sentenced to imprisonment with labor for a period of two years and six months. The Supreme Court decision cited in the grounds of appeal in the grounds of appeal differs from this case, and thus, it is inappropriate

8. Determination on the public prosecution against Defendant 8

According to the records, Defendant 8's death on December 11, 2020 after the filing of the instant appeal is recognized. Thus, Defendant 8's public prosecution against Defendant 8 is dismissed in accordance with Article 382 and Article 328(1)2 of the Criminal Procedure Act.

9. Judgment on Defendant 9’s grounds of appeal

For the reasons indicated in its holding, the lower court convicted Defendant 9 of this part of the facts charged, on the ground that Defendant 9’s functional control over this part of the crime can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the establishment of a public recruitment relationship without exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

B. The part on the violation of the National Intelligence Service Act due to Nonindicted 8’s political involvement in the documents pertaining to “the actual state of the corrective operation of the Seoul Metropolitan City market direction and response direction”

C. The part on violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) due to financial assistance related to the 3 labor union

10. Determination on Defendant 10’s grounds of appeal

For the reasons indicated in its holding, the lower court convicted Defendant 10 of the primary charge (excluding the part on acquittal in the grounds).

11. Determination on Defendant 11’s grounds of appeal

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that found Defendant 11 guilty of primary charges.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment that affected the conclusion of the judgment.

12. Judgment on the grounds of appeal by the prosecutor

(a) Whether the first instance court measure on Amendments to Bill of Indictment is legitimate;

1) According to the records, the following circumstances are revealed.

A) On October 7, 2017, Defendant 1 indicted Defendant 1 as a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) (hereinafter “Seoul Central District Court”) in relation to perjury and the online activities of the psychological leaflets (hereinafter “Defendant 2”) on December 7, 2017, Defendant 2 and Defendant 3 were indicted as a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) (Seoul Central District Court 2017Gohap1241).

B) On December 19, 2017, in the Seoul Central District Court case No. 2017Kahap1008, the prosecutor applied for the amendment of the indictment with respect to Defendant 1’s activities related to Defendant 1’s off-line of the deliberation leaflet in the facts charged of violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.). The above court permitted the amendment of the indictment on the same day.

C) On December 31, 2018, the prosecutor filed an application for amendments to the indictment with respect to Defendant 1, Defendant 2, and Defendant 3 on the charge of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) on the charge of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.). The above court permitted amendments to the indictment on September 23, 2019, which added the budget useful crimes related to other pending issues, to the offline activities.

D) In rendering the judgment of the court of first instance on February 7, 2020, the above court revoked the decision to permit each amendment of the indictment on the ground that “The crime of misappropriation of the budget related to the activities of the psychological leaflet is a blanket crime only between the pending issues, and there is a relationship of substantive concurrent crimes, and the budget diversion related to the online activities of the psychological leaflet is also a relationship of substantive concurrent crimes.”

2) Examining the above circumstances in light of the relevant legal principles, we affirm the judgment of the court of first instance that revoked the decision to permit changes in indictment was justifiable. Contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the number of crimes

(b) Whether the collection has been omitted;

1) The lower court, on the ground that it was not proven that the interests of the above Defendants were substantially attributed to the crime on the grounds as indicated in its reasoning, on the grounds that the violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and the part concerning occupational embezzlement in relation to Defendant 1, Defendant 2, and Defendant 3’s online or off-line deliberation leaflets, did not impose an additional collection equivalent to the amount of national

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on additional collection.

2) The lower court, on the ground that the part of the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) regarding Defendant 2’s activities related to Nonindicted Corporation 1 did not prove that the interest of the above crime was substantially attributed to the Defendant, on the grounds as indicated in its reasoning, did not render a collection equivalent to the amount of

3) The lower court, on the ground that the part of the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to Defendant 2, Defendant 9, Defendant 10, and Defendant 11’s financial assistance related to the third labor union, did not prove that the above Defendants did not have proved that the interests of the crime actually accrue, on the grounds as indicated in its reasoning, did not additionally collect the amount equivalent

C. The part on the violation of the National Intelligence Service Act due to Defendant 2 and Defendant 4’s production team, “(the program name 2 omitted),” “(the program name 2 omitted),” and abuse of authority against Nonindicted 10 and Nonindicted 11

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted this part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of violating the National Intelligence Service Act due to abuse of authority, thereby adversely affecting the

D. The part regarding interference with each of the business of Defendant 2, Defendant 4 with Nonindicted 10, Nonindicted 11, Nonindicted 12, and Nonindicted 13

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted this part of the facts charged.

Examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of interference with business, thereby adversely affecting the

E. Defendant 5

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted Defendant 5 on the ground that it is difficult for Defendant 5 to recognize the functional control over the part of the crime after his resignation from the president of Nonindicted Corporation 1, on the part of the facts charged against Defendant 5.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the renunciation of conspiracy and functional control in the blanket crime, thereby adversely affecting the judgment.

F. The part on Defendant 2’s budget diversion related to Nonindicted Corporation 1’s activities

For the reasons indicated in its holding, the lower court acquitted Defendant 2 of all charges on the grounds that it is difficult for Defendant 2 to recognize the functional control of the above Defendant’s act on the part of the crime after resignation from the president of the State Agency, among the violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.) and the ancillary charges (Embezzlement).

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the renunciation of conspiracy and functional control in the blanket crime, thereby adversely affecting the judgment.

G. The part concerning the violation of the National Intelligence Service Act by abuse of authority against Defendant 2, Defendant 7, and Defendant 9, excluding the part concerning the abuse of authority against Nonindicted 15 related to Nonindicted 14 and the part concerning the abuse of authority against Nonindicted 16 and Nonindicted 8 to the employees of the NIS related to Nonindicted 8

1) The crime of abusing authority and obstructing another’s exercise of rights (hereinafter “the crime of abusing authority and obstructing another’s exercise of rights”) is established when a public official tabled to exercise ex officio and specifically an ex officio exercise of official authority with respect to matters belonging to general official authority and authority. The term “the abuse of authority” as referred to in this context refers to cases where a public official unlawfully or unlawfully exercises his/her authority with respect to matters belonging to general official authority and authority, i.e., when a public official formally or externally exercises his/her authority with respect to matters belonging to his/her general authority and authority, or where he/she appears to perform an act other than legitimate authority. In order for a public official to be deemed to be a matter belonging to the general official’s authority and authority, legal basis related thereto is necessary. Although there is no express provision, the legal basis is not necessarily required, but it is interpreted as falling under the official’s authority and authority, and where it is deemed sufficient to cause the other party to perform an act or interfere with his/her rights, it is also included in the general official authority as stated in the crime of abusing authority.

In the crime of abuse of authority, the term “when a public official has another person perform an act without any obligation” means when a public official abused his/her official authority to cause another person to perform an act without any obligation under the law. Therefore, even if a public official allows a person in charge of business to perform a fact-finding act assisting the performance of his/her official authority with respect to matters belonging to his/her official authority, this is merely a result of the performance of his/her official duties, and thus, it cannot be deemed a case where a public official does not perform an obligation in principle. However, if the standards and procedures for performance of official duties are specifically stated in statutes and the person in charge is given a unique authority and role to apply the standards and procedures for performance of official duties to a person in charge of business, and is given a person in charge of business with the inherent authority and role to participate in the procedures for performance of official duties in violation of such standards and procedures, the determination of whether a public official is a person in charge of business who assists in the performance of official duties should be made based on 190 days or 200 days, respectively.

B) The NIS, as a direct subordinate organization of the President, plays a role in supporting the presidential administration (Article 2 of the NISA) (Article 2 of the NISA). The duties of the NIS, such as collecting, preparing, and distributing information that it performs as an intelligence organization, are difficult to be subject to surveillance or checks by other national agencies due to the need for maintaining security and the unique characteristics of the method of performing such duties, etc. In addition, the NIS’s internal and strict direction system is required to maintain for the smooth performance of its duties. In addition, the NIS has the authority to investigate crimes, etc. prescribed by the National Security Act, which may involve the exercise of compulsory power against each individual prior to the enforcement of the current NISA (wholly amended by Act No. 17646, Dec. 15, 2020). If it is abused due to the legal status and influence of the NIS, de facto characteristics of duties, and method of performing duties, etc., the NIS violated fundamental rights of the people throughout all aspects of life, including politics, economy, society, and culture, and has a high level of national crisis and progress in political information.

Upon the amendment of the former National Security Planning Act (amended by the National Intelligence Service Act on January 21, 1999) by Act No. 4708, Jan. 5, 1994, Article 11(1) prohibiting the abuse of authority by the head, Deputy Director, and other employees of the National Security Planning Department (Article 11(1)) of the said Act and a provision punishing the act of abuse of authority by the head, Deputy Director, and other employees of the National Security Planning Department (Article 19(1) of the said Act) may also be deemed to be an anti-sexual measure based on such historical experience in the event of a violation of the said provision. In light of the legislative history of the said provisions maintaining the content up to the current National Intelligence Service Act, the purport of the Act separate provisions regarding punishment for abuse of authority under the National Intelligence Service Act is to prevent a violation of the authority and rights of other institutions, organizations, or citizens by abusing the authority vested in him/her.

2) The lower court acquitted all of the charges on the following grounds.

A) The Defendants 1 and 2’s act of abuse of authority in this part of the facts charged (hereinafter “Nonindicted Party 2”) and Nonindicted Party 2’s act of abusing official authority and Nonindicted Party 1’s instruction on Nonindicted Party 2’s act of reporting Nonindicted Party 2’s violation of the Act on the Prevention of Abuse of Official Authority and the Prevention of Violations of Official Duties by Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 2, Nonindicted Party 2, and Nonindicted Party 1, Nonindicted Party 2, and Nonindicted Party 2, who were affiliated with Nonindicted Party 3, were to report on Nonindicted Party 2’s violation of the Act on the Prevention of Abuse of Authority and the Prevention of Violations of Official Duties by Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 2, and Nonindicted Party 4, Nonindicted Party 2, and Nonindicted Party 1, Nonindicted Party 2, and Nonindicted Party 2’s violation of the Act on the Prevention of Violations of Official Duties and the Prevention of Violations of Official Duties by Nonindicted Party 1, Nonindicted Party 2, and Nonindicted Party 1, etc.

B) In this part of the facts charged, the NIS employees specified as the party to abuse of authority are co-offenders who participated in the political involvement of Defendants 2, 7, and 9, and it is difficult to regard them as victims of a crime of violating the NISA due to abuse of authority (hereinafter “the second judgment”).

C) Even if each of the instant orders belongs to the general duties and authority of the NIS personnel, Defendant 2 does not constitute a case where: (a) as to the collection, compilation, and distribution of domestic security information, which belongs to the duties of the NIS personnel, Defendant 7 and Defendant 9 assist the NIS personnel in performing their duties; (b) assist the NIS employees, who are working-level personnel, in doing so; and (c) specifically stated in statutes the standards and procedures for the performance of duties to be observed; and (d) even though the standards and procedures for the performance of duties to be complied with and the inherent authority and roles to be involved in the procedures are granted to them, they do not constitute a case where they assist the performance of duties in violation of such standards and procedures. Ultimately, each of the instant orders does not constitute “when they cause to perform an act without any obligation” (hereinafter referred to as “third judgment”).

3) However, it is difficult to accept such determination by the lower court for the following reasons.

A) First, examining the following circumstances revealed by the reasoning of the lower judgment and the evidence duly admitted, in light of the legal doctrine as seen earlier, each of the instant orders was deemed to have satisfied the form of exercising official authority on matters pertaining to the general authority and authority of the actors in a formal and external manner.

(1) It is reasonable to view that the actors of each of the instant instructions have a general authority to have the other party conduct an unobligatory act upon abuse.

Pursuant to Article 3(1)1 and 3(1)3 of the former National Intelligence Service Act (amended by Act No. 11104, Nov. 22, 2011; Act No. 12266, Jan. 14, 2014; hereinafter “former National Intelligence Service Act”), the NIS shall perform its duties such as “collection, compilation, and distribution of domestic security information (defluences, counter-terrorisms, and international criminal organizations),” and “investigation into crimes prescribed in the National Security Act.” Defendant 2, the president of the NIS, has the authority to take overall control of the NIS’s duties and direct and supervise its employees (Article 7(2) of the former National Intelligence Service Act); Defendant 7, the Vice Director of the National Intelligence Service, and Defendant 9, the Director of the National Security Information Bureau, assisting the Director of the National Intelligence Service, have the authority to direct and supervise staff members of the NIS in relation to the above duties; Defendant 2, the Director of the National Security Service and the Director of the National Security Service, who finally delegated his/her authority and delegated the said Defendants.

Considering the duty to obey an official order of his superior in the course of performing his duties and the strict standing clothes command system of the NIS, the authority and authority of the above Defendants and their accomplices may be deemed sufficient to allow the employees of the NIS to perform any act without any duty if they are abused for improper purposes, etc., even if they do not involve legal force.

(2) It is reasonable to deem that each of the instant instructions pertains to matters falling under the general duties and authority of the NIS staff, who is a nominal actor.

(A) Defendant 2 held office as the president of the NIS and opposed to the government policy at a meeting of executive members, etc., or provided that “pro-North Korea forces (pro-North Korea forces) or their influence are “pro-North Korea forces (pro-North Korea forces)” (hereinafter “pro-North Korea forces”), and repeatedly instructed Defendant 2 to take active measures to check.

Each of the instant instructions was embodied in the direction of the head of the NIS to collect or check information on a specific subject. In other words, Defendant 2, etc. concluded that the head of the NIS’s direction was a person suspected of having been suspected of having a pro-North Korean force, etc., such as the head of the camping district local government, Nonindicted 14, Nonindicted 9, and Nonindicted 23, etc., and on the pretext of taking measures to check them, it can be deemed that the head of the NIS’s instruction was directed by the head of the NIS to collect relevant information, prepare or implement countermeasures.

Even if the above title was merely a surface, it may be considered when determining whether each of the instant instructions can be seen as an ex officio exercise by the relevant actors in a formal and external manner.

(B) At the same time, North Korea is a partner of dialogue and cooperation for the peaceful unification of the fatherland, and at the same time, has the character of an anti-government organization that takes measures to rescue our liberal democracy system by taking advantage of the enemy unification route (see, e.g., Supreme Court en banc Decision 2003Do758, Apr. 17, 2008). Considering the status of North Korea and the circumstances in which the command division of the present NIS for the instant order was carried out for the sake of each of the instant orders, each of the instant orders issued by the Head of the NIS, including Defendant 2, may be deemed to have exercised the authority to collect domestic security information on anti-government, anti-government unification, or to direct investigation activities against the violation of the National Security Act.

(3) It is reasonable to deem that each of the instant instructions satisfied the external appearance of the NIS’s instructions on the performance of duties.

(A) Each of the instant orders was issued to the person in charge of practice through the official chain of command of the NIS, which is based on the position of the president of the NIS.

The head of the NIS, who implemented the instant direction, could not be specifically aware of what intention or purpose the Head of the NIS directed him/her to collect, analyze, and establish strategies. Even if the head of the NIS could have suspected of the intent or purpose of participating in the politics of the NIS at the time of receiving the instant instruction, such circumstance alone does not necessarily lead to the change in the appearance of each of the instant instructions.

(B) Article 3(1)1 of the former National Intelligence Service Act and Article 2 Subparag. 2 of the former Regulations on Planning and Coordination of Information and Security Services (amended by Presidential Decree No. 25751, Nov. 19, 2014; hereinafter “former Regulations on Planning and Coordination of Information and Security Services”) include only the scope of “sectors (sectors), counter-terrorisms, counter-terrorisms, and international criminal organizations)” and “purposes (areas to ensure national security from acts of counter-state activities, etc. to ensure national security)” that the NIS handles information. In addition, at the stage of collecting information, it is difficult to clearly determine whether the relevant information constitutes security information, and the collection of security information can be completed by combining various information collected at different times.

The NIS has been engaged in broad information collection activities in various domestic fields, regardless of specific suspicions, such as the uniforms of government, prior to the occurrence of the instant case, on the grounds of the abstract and comprehensive basis of the scope of duties as above, and the unique characteristics of security affairs. Unlike the legitimacy and feasibility of the foregoing activities, the NIS’s perception that it has actually performed the duty of collecting domestic security information in such a way may affect the scope of the relevant duties of the NIS’s working-level officers. Thus, each of the instant instructions may be considered when determining whether it satisfies the appearance of the exercise of authority.

(4) It is difficult to readily conclude that each of the instant instructions constitutes an act of political involvement, and even if Defendant 2, etc. had the objective of political participation at the time of performing each of the instant instructions, it does not necessarily mean that the said instructions did not have an ex officio exercise based on the above purpose, etc., insofar as they fall under the performance of duties

The contents and methods of each of the instant instructions alone are as follows: “Act of supporting or obstructing the formation of, or joining in, a political party or political organization” under each of the subparagraphs of Article 9(2) of the former National Intelligence Service Act; “Act of spreading opinions or facts against, a specific political party or political person by taking advantage of one’s position to disseminate opinions supporting or opposing such political party or political person or to create public opinions (Article 2); “Act of disseminating opinions or facts that praise or slanders a specific political party or political person for the purpose of forming public opinions”; “Act of assisting or obstructing the collection of donations for a specific political party or political person; act of using, or allowing the State, local government, or government-invested institution (or public institution under the Act on the Management of Public Institutions) to use funds of the State, local government, or government-invested institution (Article 3); “Act of providing an election campaign for, or participating in the election-related countermeasures against, a certain political party or political person (Article 4); or “Act of providing, benefit or disadvantage to, or in relation to, any of the said act” is objectively apparent or unfortu.

The issue of whether each of the instant instructions constitutes an “act of participating in political activities” or an act of preliminary preparation therefor can only be seen as having practically and specifically examined not only the objective contents of the relevant instructions, but also the situation including the status of a person subject to collection of information or check, the details of past activities, etc. The employees of the NIS in receipt of each of the instant instructions are in the position of having to follow the instructions unless there are special circumstances where the instructions are formally and externally when performing duties. Although Defendant 2, etc. falls within the scope of duties in a formal and external manner, if Defendant 2, etc. instructs the NIS employees to perform an act beyond the scope of authority with the purpose of substantially participating in political activities, it should be proven that the purpose of hiding such concealed objectives, etc. by Defendant 2, etc. constitutes abuse of authority, and it does not necessarily mean that there was no exercise of authority based on such instructions.

B) As to the second judgment, it is reasonable to view that the employees of the NIS who complied with each of the instant orders is the other party to abuse of authority. The reasons are as follows.

(1) Since the “person”, which is the object of the violation of the National Intelligence Service Act due to the abuse of authority, refers to all others other than the perpetrator and the accomplice, not only subordinate public officials of the offender, but also other public officials may be included in the court. However, as seen earlier, since the authority of each of the instant instructions is sufficient to allow the other party to perform an act for which he/she is not obligated to do, the personnel in charge of the NIS, who received each of the instant orders, may become the counter-party to the abuse of authority.

(2) The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through a functional control based on the intent of co-processing and the common intent. Although the co-principal may be liable for the crime even if he/she did not directly share part of the elements of the crime, he/she may be held as a co-principal. For this purpose, comprehensively considering the status, role, control or power over the process of the crime in the entire crime, it is not just a simple conspiracy, but it should be recognized that he/she has functional control through essential contribution to the crime (see, e.g., Supreme Court Decision 2007Do4702, Oct. 26, 2007). However, even if a person in charge of the state affairs who performs each of the orders in this case did not obey the direction of the command of the NIS, it is difficult to view that each of the above co-offender did not constitute abuse of authority and thus, he/she did not constitute an abuse of authority.

C) Examining the following circumstances revealed through the reasoning of the lower judgment and the evidence duly admitted and investigated, in light of the legal doctrine as seen earlier, it is reasonable to deem that Defendant 2, etc. directly performed the instructions through each of the instant instructions constituted a case where the said executive officer had a person in charge of the NIS, who directly performed the instructions, do not have any legal obligation. It is not only to have the person in charge of the NIS, in charge of the NIS, engage in a fact-finding act assisting the performance of duties.

(1) At the time of each of the instant instructions, the standards and procedures for performing duties to be followed by the NIS practitioners were stipulated in statutes.

Article 3(1)1 of the former National Intelligence Service Act and Article 2 subparag. 2 of the former Regulations on Planning and Coordination of Information and Security Services provide that “All citizens shall serve the NIS employees for the entire nation (Article 7), and do not discriminate against all citizens in political life (Article 11); and Article 17 of the State Public Officials Act imposes an obligation not to infringe on the privacy and freedom of citizens (Article 56).” Article 59 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes and faithfully perform their duties.” Article 3(1)1 of the former National Intelligence Service Act and Article 2 subparag. 2 of the former Regulations stipulate that “All public officials shall perform their duties kindly and fairly as servants of all citizens.” According to the purpose of Article 3(1)1 of the former National Intelligence Service Act and Article 3(2) of the former Regulations, the NIS’s employees are prohibited from handling information on the identity of agents and other anti-state activities and their subordinate citizens against the State, and only the information on domestic criminal organizations before being delegated to the National Intelligence Service Act (Article 315(2).

Such provisions can be deemed to stipulate the standards and procedures for the performance of duties to be followed by the personnel in charge of the NIS practice.

(2) The NIS also applied the standards for performance of duties to the personnel in charge of the NIS and was given a unique authority and role to participate in the procedure, and the performance of each of the instant instructions cannot be deemed as merely an act of supporting the performance of duties by the NIS commander.

Considering that the duties of the NIS, such as the contents of the standards and procedures for performing duties to be followed by those in charge of the NISs, “collection, compilation, and distribution of domestic security information,” and “investigation into crimes stipulated in the National Security Act,” are in itself likely to infringe on the fundamental rights of the people, it is reasonable to deem that the performance of each of the orders in this case was given a unique authority and role to apply the standards for performing duties and to participate in the procedure by properly selecting the subjects and methods of collecting and analyzing the information to be performed by each of them. In addition, in light of the developments leading up to the performance of each of the orders in this case, it cannot be deemed that the performance is merely a fact-finding assisting the performance of duties by the NISs.

(3) The actors of each of the instant orders had the executive officers in charge of the NIS perform their duties beyond the scope of legitimate duties in violation of the standards for performance of duties.

The actors of each of the instant instructions directed the executive officers in charge of the NIS to collect and analyze information irrelevant to national security, and prepare countermeasures against the violation of the duty of political neutrality, the duty not to infringe on the privacy and freedom of the people, the duty not to comply with the law, and the duty not to perform duties fairly.

Furthermore, considering the overall circumstances such as the purpose of the NIS’s direction, the status of persons subject to information collection, and the details of their activities, the act of the NIS staff in accordance with each of the instant orders can be deemed to have exceeded the legitimate scope of duties of the NIS as stipulated under Article 3 of the former NISA, merely an act of checking and suppressing the political parties or civilians, establishing and implementing measures to check and pressure them, and preparing a strategy for the election of the political party.

D) Nevertheless, the lower court determined otherwise, and concluded that the Defendant was not guilty of the above facts charged without examining the remaining requirements for the establishment of the crime in this part of the facts charged, such as whether it constitutes abuse of authority, etc. In so doing, the lower court erred by misapprehending the legal doctrine on the violation of the National Intelligence Service Act due to abuse of authority, thereby failing to exhaust all necessary deliberations. The Prosecutor’s ground of appeal assigning this error is with merit.

H. The part on the violation of each National Intelligence Service Act due to the abuse of authority by Defendants 7 and 9 against those related to Nonindicted 25, including Nonindicted 24, etc.

The lower court, on the grounds indicated in its reasoning, acquitted this part of the facts charged.

I. The part on the violation of the National Intelligence Service Act due to the attempted abuse of authority by Defendants 2, 7, and 9 against Nonindicted 26

The lower court, on the grounds indicated in its reasoning, acquitted this part of the facts charged.

(j) The part on the violation of the National Intelligence Service Act due to the abuse of authority against the figures belonging to the enterprise groups, enterprises, and economic organizations in relation to the funding of remuneration organizations by Defendants 2, 7, and 9

The lower court found the Defendants not guilty of this part of the facts charged on the ground that the Defendants’ act of requesting financial assistance to the remuneration organization to the private company and the non-indicted 27 federation, which are the economic organization, constitutes a tort using the status of the NIS staff, and on the ground that it does not constitute an unlawful exercise of matters belonging to the general authority and authority of the NIS staff, i.e., abuse of authority

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the crime of violating the National Intelligence Service Act

In cases where a public official commits an illegal act that does not belong to a general official’s authority by taking advantage of his/her position, the term “illegal act using his/her status” is deemed not subject to punishment for the crime of abuse of authority, unlike the cases of unlawful or unjust exercise of his/her authority with respect to matters belonging to a general official’s authority (see, e.g., Supreme Court Decisions 90Do2800, Dec. 27, 1991; 2007Do9139, Apr. 10, 2008; 2018Do14303, Aug. 29, 2019). The interpretation of “illegal act using his/her status” as mentioned above is an extended interpretation or analogical interpretation beyond the possible scope of the language and text, and thus, is in violation of the principle of no punishment without the law. It is difficult to deem that a public official has committed an unlawful or unjust act beyond his/her authority against a person who is likely to suffer disadvantage due to the exercise of his/her authority and authority.

C. Violation of the National Intelligence Service Act and violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation) due to Defendant 7’s political involvement in relation to the distribution of synthetic photographs

For the reasons indicated in its holding, the lower court acquitted Defendant 7 of this part of the facts charged on the ground that Defendant 7’s functional control over this part of the crime was not recognized.

(l) The part concerning the offering of bribe to Nonindicted 28 by Defendant 2 to the Commissioner of National Tax Service

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted Defendant 2 and Nonindicted 28 of this part of the facts charged on the ground that the receipt of KRW 120 million between Defendant 2 and Nonindicted 28 was merely an internal distribution of the money acquired by the accomplices in the crime using the NIS budget through public offering.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on

(m) The part on Defendant 2’s violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 15 related to Nonindicted 14 by Defendant 2’s transfer

1) Where a number of acts falling under the name of the same crime continues to be conducted with a single and continuous criminal intent for a certain period and where the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime, and in such a case, the statute of limitations shall begin to run from the time the final criminal act was completed (see Supreme Court Decision 2002Do2939, Oct. 11, 2002, etc.).

The purpose of the crime of abuse of authority under the Criminal Act is to protect the national legal interest, which is a fair exercise of State function, and also the crime of violation of the National Intelligence Service Act by abuse of authority is also the same. Therefore, with respect to the abuse of authority committed by an employee of the NIS for a certain period of time in the course of a series of performance of duties concerning the same case, even if the other party is several, a single comprehensive crime may be established. However, depending on whether the crime of abuse of authority constitutes a single and continuous crime, the completion of the statute of limitations and the scope of res judicata effect may vary depending on whether each crime of abuse of authority is concurrent crimes. Thus, in individual cases, the establishment of a single comprehensive crime ought to be determined by thoroughly examining whether the crime of abuse of authority is identical to the person subject to the execution of duties, the attitude and motive of the crime, the interval between the crimes

2) The lower court, on the premise that “If multiple victims are forced to commit an act for which they did not have any obligation by abusing their official authority or interfere with the exercise of their rights, the victim’s legal interests are single and even if the method of crime is identical, and thus, they cannot be understood as an inclusive crime and should be deemed to have been established as an independent crime by each victim.” On the ground that Defendant 2’s transfer to Nonindicted 21, Nonindicted 22, and Nonindicted 15, as to the violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 14, the lower court found that each of the above abuse of authority committed an independent crime, and that these crimes were in a substantive competition relationship. Based on such determination of the number of crimes, the lower court determined that the lower court acquitted Nonindicted 15 on July 13, 2010, on the ground that Nonindicted 15 established and reported the internal death plan with respect to Nonindicted 14, Defendant 2, etc. on the ground that the prosecution against Defendant 2 was instituted on June 25, 2018.

3) However, we cannot accept the above judgment of the court below as it is.

A) According to the record, the following facts are revealed.

(1) On September 2009, Defendant 2 instructed Nonindicted 29 to establish a so-called “special name team” with the top priority in dealing with the matters under the command of the NIS as a result of the development of the pro-North Korea force under the control of the third Vice Chief of the NIS, and Nonindicted 29 instructed Nonindicted 30, the head of the Group B affiliated with the third Vice Chief of the NIS to establish a special name team consisting of internal and cyber frequency team under the control of the Party B related to the intelligence.

(2) Around July 2010, Defendant 2 instructed the former meeting of the head of the department to find out Nonindicted 14’s illegal acts or irregularities, and Nonindicted 29 instructed Nonindicted 30 to the same purport at the meeting of the head of the bureau and the head of the group affiliated with the third vice head of the bureau and the head of the group.

(3) At that time, Nonindicted 30 instructed Nonindicted 15, the president of the special team, to know Nonindicted 14 closely about Nonindicted 14, and Nonindicted 15, on July 13, 2010, formulated a phased internal investigation plan with respect to Nonindicted 14 in each phase, and reported it to Defendant 2 via Nonindicted 29.

(4) Since then, Nonindicted 30 directed Nonindicted 21 of the team leader of a special team cyber wave team to “cyber inspection” against Nonindicted 14, and Nonindicted 22 of the cyber wave team members: (a) informed Nonindicted 14’s trends through Internet search results from April 11, 201 to May 12, 201, or through surveillance of the surrounding human resources of Nonindicted 14; and (b) prepared a report to find out the details thereof.

B) Examining the foregoing facts in light of the legal principles as seen earlier, since both Defendant 2 and Nonindicted 30’s act against Nonindicted 15, Nonindicted 21, and Nonindicted 22, who are his accomplices, was related to the same subject of collection of information as Nonindicted 14, and continued to be a single and continuous criminal intent, it is reasonable to deem that the crime of violating the National Intelligence Service Act due to one abuse of authority was established by combining the above act with respect to the above act. Thus, the period of termination of the crime by the above act ought to be deemed to be “ around May 12, 2011,” where Nonindicted 22 completed the implementation of the instructions given by Defendant 2, etc., (i) the prosecution against Nonindicted 30, who was an accomplice, on May 4, 2018, which was seven years after the statute of limitations expired (Seoul Central District Court Decision 2018Da4666), the statute of limitations against Nonindicted 2 was suspended (Article 253(2) of the Criminal Procedure Act), and (ii) the statute of limitations against Defendant 25.

C) Nevertheless, the lower court determined otherwise by deeming that the statute of limitations has expired for the part on the violation of the National Intelligence Service Act due to the abuse of authority against Nonindicted 15 with respect to Nonindicted 14, upon Defendant 2’s acceptance of Defendant 2. In so determining, the lower court erred by misapprehending the legal doctrine on the violation of the National Intelligence Service Act by abuse of authority and the blanket crime, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal

n. The part concerning Defendant 2’s violation of the NISA due to the abuse of authority against the employees of the NIS related to Nonindicted 16 and Nonindicted 8

1) The lower court acquitted all of the charges on the following grounds.

A) Defendant 2’s act directed Nonindicted 16 and Nonindicted 8 to monitor the trend constitutes the exercise of authority that belongs to the general authority and authority of the president of the NIS, and Defendant 2’s act ordered as above constitutes an unlawful act other than a justifiable authority, even though it is difficult to deem that Nonindicted 16 met the North Korean related person, or that Nonindicted 8 met the executive officers of the Japan Association 31.

B) However, with respect to the collection of domestic security information that belongs to the duties of the NIS and the investigation into crimes under the National Security Act, Defendant 2, who is a person in charge of Nonindicted 32, Nonindicted 33, Nonindicted 34, and Nonindicted 35, who is a working-level staff member of the Department of the NIS, under the Vice Director of the NIS, has engaged in an act of supporting his/her performance of duties, and even though the standards and procedures for his/her performance of duties are specifically specified in the statutes and are granted by the person in charge of the duties, the standards and procedures for his/her performance of duties are applied to the person in charge of the duties and are given the unique authority and roles to participate in the procedures, it does not constitute a case where Defendant 2 assisted the person in charge of the above NIS in violation of such standards and procedures

2) First, we examine the part on the violation of each National Intelligence Service Act due to the abuse of authority against Nonindicted 32, who is the A-3 Minister.

Examining the reasoning of the lower judgment in light of the record and relevant legal principles, it is reasonable to view that Nonindicted 32, the president of A-3, was an accomplice in the crime of abuse of authority by: (a) assisting the director general of the bureau related to B; (b) assisting the head of the headquarters related to B-3; (c) taking charge of the tasks of A-3, including the management of the most business entity; and (d) providing an essential contribution to Defendant 2’s act by accepting instructions, such as unfounded and monitoring, and delivering the instructions to subordinate officers; and (c) thereby taking part in the crime of abuse of authority by Defendant 2, etc., as an accomplice. Therefore, the lower court’s conclusion that acquitted Defendant 2 of this part of the facts charged is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on

3) Next, we cannot accept the judgment of the court below on the part of violation of the National Intelligence Service Act due to abuse of authority against Nonindicted 33, Nonindicted 34, and Nonindicted 35, a person in charge of A-3 practice.

A) Examining the following circumstances revealed through the reasoning of the lower judgment and the evidence duly admitted in light of the legal doctrine as seen earlier, Defendant 2 may be deemed to have caused Nonindicted 33, Nonindicted 34, and Nonindicted 35 to perform an act without any obligation.

(1) The standards and procedures for performing duties to be followed by the above officials in charge of the NIS affairs have been specifically stipulated in the statutes.

Articles 7, 11, and 17 of the Constitution of the Republic of Korea, which provide for the duty to provide public officials to the whole public, the duty to equality rights of the people and the guarantee of privacy; Articles 56 and 59 of the State Public Officials Act, which provide for the duty to comply with laws and regulations; Articles 3(1)1 of the National Intelligence Service Act; Article 2 subparag. 2 of the former Regulations on Planning and Coordination of Security and Security Affairs; Article 31(2) of the former Security Operational Rule; Article 9 of the National Intelligence Service Act which prohibits the NIS employees from participating in political activities, which provides for the duty to comply with the standards and procedures for the performance of duties to be followed by those in charge of State affairs, such as Nonindicted 33, Nonindicted 34, and Nonindicted 35.

(2) The above personnel in charge of the NIS also applied the standards for the performance of duties and was given the unique authority and role to participate in the procedure, and it cannot be deemed that the acts of Nonindicted 33, Nonindicted 34, and Nonindicted 35 are merely an act assisting the performance of duties by the NIS commander.

Considering that the duties of the NIS, such as the contents of the standards and procedures for performing duties to be followed by those in charge of the NISs, “collection, compilation, and distribution of domestic security information,” and “investigation into crimes prescribed by the National Security Act,” may in itself infringe on the fundamental rights of the people, it is reasonable to deem that the duties of the NISs, who perform orders, such as surveillance, etc., of Defendant 2, have applied the standards for performing duties by properly selecting the subjects and methods of collection, analysis, etc. of information to be performed by them and given the unique authority and role to participate in the procedures.

In fact, the act of Nonindicted 33, Nonindicted 34, and Nonindicted 35’s non-indicted 16, and Nonindicted 35’s non-indicted 8’s non-indicted 16 or non-indicted 8 in itself constitutes an act that infringes on the above persons’ fundamental rights, and the legal responsibility therefrom may be imposed directly on the above person in charge of the NIS. However, such an act is not merely a fact supporting the performance of duties by the head of the NIS. Moreover, a report that was made on the basis of the information collected through the non-indicted 33, Nonindicted 34, and Nonindicted 35’s non-indicted 16 or non-indicted 8’s activities

(3) Defendant 2 had the NIS staff, a working-level employee, perform an act beyond the scope of legitimate duties in violation of the standards and procedures for the performance of duties.

Defendant 2, who is a working-level officer, committed a violation of the duty not to infringe on the people’s privacy and freedom of privacy, and led Nonindicted 16 or Nonindicted 8, who was in charge of the business, to observe and monitor Nonindicted 33, Nonindicted 34, and Nonindicted 35, and to report the result.

Furthermore, considering the overall circumstances such as Nonindicted 33, Nonindicted 34, and Nonindicted 35’s conduct of monitoring, reporting, etc., the act of Nonindicted 33, Nonindicted 34, and Nonindicted 35’s conduct goes beyond the legitimate scope of duties of the NIS under Article 3 of the former National Intelligence Service Act, since it is merely a report on the inspection of civilians and political persons and their status to be collected information, and its activities are merely a report.

B) Nevertheless, the lower court determined otherwise by deeming that Defendant 2 did not constitute a case in which Nonindicted 33, Nonindicted 34, and Nonindicted 35 had Nonindicted 35 do an act for which he did not have a duty, and thus, acquitted Defendant 2 of each part of the violation of the NISA due to the abuse of authority against Nonindicted 16, Nonindicted 33, Nonindicted 34, and Nonindicted 35 regarding Nonindicted 8, and Nonindicted 35. In so determining, the lower court erred by misapprehending the legal doctrine on the violation of the NISA due to abuse of authority, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s

C. Existence of admissibility of the output of this case

The lower court, on the grounds indicated in its reasoning, determined that the evidence produced by the prosecutor alone cannot be admitted as evidence of the output documents of this case.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on admissibility of evidence, thereby adversely affecting the judgment.

(p) The part on Defendant 2’s budget diversions for remodeling construction of building (building name omitted)

For the reasons indicated in its holding, the lower court acquitted all of the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to embezzlement, which is the primary charge, and the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) due to

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on intent

(q) Defendant 2’s use of the budget related to the Korean school fund funds

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on intent

(r) The part on Defendant 7’s budget diversion pursuant to Defendant 7’s financial assistance related to the third labor union

The lower court, on the grounds the grounds indicated in its reasoning, acquitted Defendant 7 of both the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) and the part concerning the occupational embezzlement, which are the ancillary charge, on the ground that Defendant 7’s conspiracy and conspiracy on this part of the crime was not proven

(s) Of the primary and preliminary facts charged against Defendant 10, each portion arising from the delivery of KRW 20 million to Nonindicted 36 on December 19, 2011.

The lower court, on the grounds indicated in its reasoning, acquitted all of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on joint principal offenders, thereby adversely affecting the conclusion of the judgment

(t) The remainder

Of the judgment below, the prosecutor filed an appeal on the whole part of Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 7, Defendant 9, Defendant 10, and Defendant 11. However, the rest of the judgment is not indicated in the petition of appeal or the appellate brief.

13. Scope of reversal

The part of the lower judgment, which received the Prosecutor’s argument in the grounds of appeal, or the part of the lower judgment, which is a single crime relation with the Defendant 2, Defendant 7, and Defendant 9, should be reversed. The part of the lower judgment convicting Defendant 2, Defendant 7, and Defendant 9 on the violation of the National Intelligence Service Act and acquittal due to abuse of authority against the employees of the NIS should be reversed. Since the lower court deemed that the part of the lower judgment convicting Defendant 2, Defendant 7, and Defendant 9 constituted concurrent crimes under the former part of Article 37 of the Criminal Act and rendered a single sentence, the part of the lower judgment against

14. Conclusion

Therefore, among the judgment below, the part of conviction against Defendant 2 (including the part of acquittal in the grounds of appeal) and the part of acquittal against Defendant 7 due to abuse of authority against the NIS employees, the part of acquittal against Defendant 7 (including the part of acquittal in the grounds of appeal), and the part of acquittal against Defendant 9 due to abuse of authority against the NIS employees, and the part of acquittal against each of the violation of the NIS by abuse of authority against the NIS employees of the NIS employees are all reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal against Defendant 1, 3, 4, 5, 6, 10, and 11, the prosecutor’s appeal against Defendant 1, 3, 4, 5, 10, and 11, and the remaining appeals against Defendant 2, 7, and 9 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)

심급 사건

-서울중앙지방법원 2018.11.2.선고 2017고합1156

-서울중앙지방법원 2018.11.2.선고 2017고합1156, 2018고합92(병합)

-서울중앙지방법원 2020.2.7.선고 2017고합1008

-서울중앙지방법원 2020.2.7.선고 2017고합1008, 2017고합1241(병합), 2018고합75(병합), 2018고합112(병합), 2018고합321(병합), 2018고합375(병합), 2018고합494(병합), 2018고합622(병합), 2018고합846(병합), 2019고합13(병합)

-서울고등법원 2020.8.31.선고 2020노486, 2018노3185(병합)

-서울고등법원 2020.8.31.선고 2020노486

-대법원 2021.3.11.선고 2020도12583

대법원 2021.3.11.선고 2020도12583

본문참조판례

-대법원 1988. 1. 19. 선고 87도1410 판결