Defendant

Modern, Sick State (prosecution, public trial), Lee Jae-ho, and Kim Jae-hwan (public trial)

Law Firm LBBS et al., Counsel for the defendant-appellant

The defendant shall be innocent.

The summary of this decision shall be published.

1. Determination on the charges of abuse of authority and obstruction of another’s exercise of rights

A. Summary of the facts charged

【Basic Facts】

1) Status of the Defendant, Nonindicted 7, and relationship with the branch public health center, and the Sungnam mental health center

around June 2, 2010, the Defendant won the 5th local election of Dong-nam City as a Sungnam City, and was in the 5th local election from July 2010 to June 2014, and was in the 5th gender south City. The Defendant, as a gender south City, was in the position to exercise the influence over his duties by exercising direct or indirect authority over the public officials under his control, such as the appointment, temporary retirement, dismissal, and disciplinary action of public officials under his jurisdiction pursuant to Article 6(1) of the Local Public Officials Act. The Defendant, as a gender south City, was in the position of exercising the influence over his duties.

around August 31, 1980, Nonindicted 7 passed the examination of Grade 9 of the public bonds of local public officials of Gyeonggi-do, and worked in Sungnam City from November 21, 1980 to November 21, 1980. On March 13, 2009, Nonindicted 7 was promoted to a local administrative official as a local administrative official and served as the head of Sungnam City Office who assists the duties of the Sungnam City from May 1, 201 to April 30, 2013.

According to the Ordinance on the Establishment of Administrative Organizations in Sung-nam City (Amended by Ordinance No. 2732, Aug. 2, 2013), the head of a regional public health center shall exercise overall control over the affairs under his/her jurisdiction under the order of the Mayor, direct and supervise its employees, and conduct affairs under his/her jurisdiction concerning mental health under the Regional Public Health Act.

The Seongbuk-gu Mental Health Center (hereinafter referred to as the "Center") shall be operated by the branch of the Seoul National University on January 1, 2012 between Sungnam-si and the Seoul National University Hospital on the basis of a private consignment contract between Sungnam-si and the Seoul National University Hospital. The head of the center shall be subject to guidance and supervision by the head of the branch of the branch of the Gu Public Health Center, and the head of the center shall, as a medical specialist of the branch of the branch of the Seoul National University Hospital, exercise overall control over the affairs of the center, such as the improvement of mental health, prevention of suicide, and management

Therefore, the Defendant, the Sungnam City Mayor, was in the position to direct and supervise the public officials belonging to the head of the branch public health center and the branch public health center of the branch public health center under the Local Public Officials Act and to exercise the authority related to duties directly or indirectly with respect to specific matters. The head of the center and employees belonging to the center were in the position to exercise the influence related to duties through the head of the branch public health center of the branch public health center and Nonindicted 7, the head of the branch public health center of the branch public health center, was in the position to assist the Defendant in the above duties

2) The Defendant’s background leading up to Nonindicted 3’s mental hospital hospitalization and the change of the entrusted institution of Nonindicted 3’s mental health center;

In around 205, the Defendant-friendly deceased Nonindicted 3 (Death at Death on the day of death) contacted Nonindicted 5 to borrow KRW 50 million, which Nonindicted 5 had been in custody as the old fund, but Nonindicted 3, who became aware of such fact, was in custody of the Defendant, not the mother. Although Nonindicted 3, who became aware of such fact, transferred KRW 50 million to Nonindicted 5,00,000 to Nonindicted 3 without making an answer, the Defendant was considered to have neglected the Defendant’s above behavior, and Nonindicted 3 was very thought to have neglected the Defendant’s friendly person, but was not present at that time after that time, Non-Indicted 3 did not have a relation with Non-Indicted 3, who was aware of the fact that Non-Indicted 3 had closed down against Non-Indicted 5. In that process, the Defendant had no adequate relation with Non-Indicted 3, who had become aware of the fact that Non-Indicted 3 had been in custody against him.

Non-Indicted 3 posted a statement to the effect that the Defendant, who was a pure citizen movement for the development of the male city, was working in the male city around August 2010, was able to express his opinion to the effect that, unlike the fact that the Defendant led the citizen movement in the male region in the past and expected to act in the male city, the Defendant appears to act in the male city, and that, in order to criticize the Defendant’s behavior, Non-Indicted 3, the Defendant criticized the male city as at the time of his opening of the market, and took a campaign for the development of the male city, and that the Defendant, who was carrying out a pure citizen movement, was working in the political person like the Si in which he became the market in which he became the market in which he was working, was able to give advice to the above purport, but it was difficult for the Defendant to criticize the Defendant as at least seven to eight times that the Defendant did not take part in the political person’s position and the Defendant’s friendly market in front of the Sungnam city market in the male city, and there was a series of the Defendant’s will and criticism of the Defendant.

The Defendant, when Nonindicted 3’s above behavior happens due to the foregoing behavior, and Nonindicted 3 continued to publish the above criticism, he thought that his correction operation would interfere with it, and used the market’s authority to infer Nonindicted 3 to be hospitalized at a mental hospital. On November 2010, the Defendant called Nonindicted 48, who was entrusted with the operation of the Center from Sungnam city (the Center from around 1999 to December 31, 201), called “○○ Mental Hospital (the Center from around 31, 201), who was entrusted with the operation of the Center from Sungnam city, to Nonindicted 48, the former president of the entrusted operation of the Center, and made a personnel solicitation and instructions to the public official as if he were the market owner. As Nonindicted 3’s mental condition was not normal, Nonindicted 3 should not immediately be hospitalized at the hospital, and Nonindicted 48 should be determined to be accompanied by the Defendant’s face-to-face diagnosis, and Nonindicted 48 should not be accompanied by the Defendant’s guardian.”

After December 31, 2011, the Defendant entered into a contract to entrust the establishment of the ○○ Mental Hospital on January 1, 201 to the private sector with the operation institution of the Center, which was newly established as of January 1, 2012. Nonindicted 2, a medical specialist of the department of mental health belonging to the branch of the Seoul National University Hospital, was appointed as the head of the Center.

3) The procedure of hospitalization under Article 25(3) of the former Mental Health Act

A doctor's diagnosis and diagnosis shall face with a patient, except in the case of emergency hospitalization, and no person shall hospitalize or extend the hospitalization of a mentally ill person to a mental medical institution, etc. without a mental health specialist's diagnosis, and a mental health specialist's diagnosis in the case of hospitalization of a mentally ill person under Articles 23 through 26 of the former Mental Health Act (amended by Act No. 11998, Aug. 6, 2013; hereinafter "former Mental Health Act") refers to a "face-to-face diagnosis." A mental health specialist takes a method of estimatinging psychological experience on the basis of not only the verbal report of the patient in the course of diagnosis but also the behavior or attitude revealed in the outer area. An interview for the purpose of diagnosis finds signs of the symptoms through the symptoms, and investigate the time, condition, and factors affecting the occurrence, and establish an additional examination or treatment plan.

In addition, a mental health specialist or a mental health specialist, who discovers a person suspected of having a risk of undermining himself or other persons due to mental illness, may apply to the Mayor, etc. for the diagnosis and protection of the person concerned, and the market, etc. in receipt of the above application shall immediately request a psychiatrist to diagnose the person suspected as the psychopath concerned. In case where, as a result of the diagnosis by a mental health specialist, the person suspected as the psychopath concerned is at the risk of undermining himself or other persons, and where it is deemed necessary to conduct accurate diagnosis of the symptoms, the Mayor, etc. shall make an application for voluntary hospitalization or request the person responsible for protection to give consent of hospitalization, and if the person fails to comply with such request, the State or public mental medical institution or general hospital may

On the other hand, without face-to-face diagnosis by a psychiatrist, the mentally ill person cannot be forced to be hospitalized under any pretext, and even in the case of hospitalization under Article 25 (3) of the former Mental Health Act, it is acknowledged that a person suspected as a mentally ill person as a result of a face-to-face diagnosis by a psychiatrist is in danger of undermining himself/herself or others, and the Mayor, etc. was able to have him/her hospitalized for a fixed period of not more than two weeks only when he/she does not comply with an application for self-hospitalization and a request for hospitalization by a legal guardian.

【Criminal Facts】

Around February 22, 2012, Non-Indicted 3 posted a statement about the defendant's market qualification criticism of the defendant's defendant's 46 cases until the end of March of the same year, and repeatedly filed a civil petition against sexual male viewing public officials, on the grounds that the defendant's corrective operation does not comply with the foundation of democracy, with regard to the fact that the defendant's request was made to make a prior report on the Saemaul Council's budget by pressure of the City Council in relation to the compilation of the budget of the Saemaul Council of Seongbuk-si to pass through the Saemaeul Council's budget, and that such corrective operation of the defendant's request was not complied with by the foundation of democracy. In order to criticize this, Non-Indicted 3 posted a statement about the defendant's market qualification for the defendant's 46 cases from the end of March of the same year.

The Defendant, due to the above actions of Nonindicted 3, became a good question about viewing public officials and the Defendant’s family death during the discharge of the Defendant in Sungnam-si, and, when Nonindicted 3 continues to publish the above criticism, he thought that his correction would interfere with the operation of the Defendant’s business, he would be able to rehospitalize Nonindicted 3 to a mental hospital by using the market’s authority.

On the other hand, Nonindicted 3 acquired qualifications as a certified public accountant around 1986, and worked at △△△△△△ for three years from around 1990, operated Nonindicted 3 tax-free accounting office from around 1993 to around 2017, and continued to increase profits by running the above accounting office around 1993, and made approximately KRW 141 million profits in around 200,000 to around 200, and around 194, at around 1994, the Defendant did not have been able to attend the above △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and had no mental illness from around 1993.

In addition, in order to admit non-indicted 3 to be hospitalized pursuant to Article 25 of the former Mental Health Act, the non-indicted 3 should be “suspects that there is a risk of harm to himself/herself or others due to mental illness.” However, according to Non-indicted 3’s civil petition system or the content of writing posted on the above bulletin board, it was difficult to find that the non-indicted 3 has a risk of harm to himself/herself or others repeatedly due to mental illness. ② Even if the person who is obligated to protect the mental health department or the person who is obligated to protect the mental patient was unable to immediately interview the person in question or to observe his/her behavior for a certain period, the medical doctor or the person who is obligated to protect the patient in question was not deemed to have a mental health department or the person who is obligated to protect the patient under the above provision of Article 25(1) of the former Mental Health Act at the time of his/her request to protect the patient’s mental health department or the person who is obligated to protect the patient in question.”

In full view of the above circumstances, Nonindicted 3 could not be hospitalized under Article 25(3) of the former Mental Health Act in light of the status of Nonindicted 3, family relationship, occupation, etc., the procedure of hospitalization under the former Mental Health Act, diagnosis and practice of the center for protection, etc. at the time of this case. However, the Defendant, using the position in the gender south market, used the center under the direction and supervision of the head of the above public health center through the head of the branch public health center, who is directed and supervised by himself/herself, was reinfecting Nonindicted 3 by being hospitalized under Article 25(3) of the former Mental Health Act.

From May 1, 2011, Nonindicted 7, who was in office as the secretary of the Sungnam market, assisting the Defendant in the duties of the Defendant, who was in office in the Sungnam market and exchanged with the Defendant’s family members, etc., maintained a very close relationship with the Defendant, including the Defendant’s past family members who were in the past before several times. At the time of the instant case, Nonindicted 3 repeatedly filed a civil petition against the Defendant’s sexual male viewing, posted an article that criticizes the Defendant’s status of the Sungnam market on the bulletin board of the Sungnam View-si website, which led the Defendant to the spread of an influence of the Defendant’s family death in Sungnam and Sungnam city, and Nonindicted 7, who assist the Defendant, was well aware of the fact, and Nonindicted 3, who used the market position in order to have the Defendant be hospitalized in the public health clinic by Nonindicted 3, who was aware of the fact that Nonindicted 3 was unable to file a civil petition for sexual viewing or criticize the Defendant’s market qualification on the bulletin board, thereby leading the market and supervision of the Defendant.

1) Preparation, etc. of revision of Nonindicted 2’s assessment report with respect to Nonindicted 3 by a psychiatrist of a mental health department

On March 2012, the Defendant: (a) requested Nonindicted 3 to prepare a written statement to the effect that “Nonindicted 3 repeatedly files a civil petition with a view to harming himself or others due to a mental disease” as stipulated in Article 25(1) of the former Mental Health Act; and (b) instructed Nonindicted 3 to the effect that Nonindicted 3 was hospitalized on the Internet homepage to the effect that “Nonindicted 3 repeatedly files a civil petition with a viewing public official; and in light of the behavior, there is a mental problem” and then, sent it to Nonindicted 1, who is the head of the branch public health center, and then sent it to Nonindicted 3, who is the head of the branch public health center; and (c) examined whether Nonindicted 7 was hospitalized on April 2012, the above written statement to the effect that “Nonindicted 3, who is hospitalized, repeatedly files a civil petition with a view to harming himself or herself; and (d) drafted a written statement to the effect that “Nonindicted 3, who is hospitalized on the Internet homepage,” and then put it to the extent to be “Nonindicted 3”.

Accordingly, Nonindicted 1 reviewed the documents and the relevant Acts and subordinate statutes related to Nonindicted 3 delivered from the above Nonindicted 7 around that time, and suggested the following basic facts (c) to the Defendant by deeming that Nonindicted 3 could not be hospitalized by the former Mental Health Act Article 25 of the former Mental Health Act on the grounds as stated in the foregoing basic facts (i.e., the content stated in the door alone is difficult to readily conclude that Nonindicted 3 has a risk of undermining himself/herself or others due to mental illness, and Nonindicted 3 has a guardian and did not constitute a cause of hospitalization by the market, etc. because he did not undergo face-to-face diagnosis, etc.), but the Defendant instructed Nonindicted 1 to the effect that “It is difficult to conclude that there was a mental illness only by itself,” and that Nonindicted 3 was unable to obtain instructions from Nonindicted 2, the head of the Seocho Police Center, for reasons such as the above-mentioned relevant Acts and subordinate statutes, and that the Defendant was unable to get his/her family member’s consent to receive the examination and treatment from his/her family.”

Accordingly, the above non-indicted 1 demanded the non-indicted 2 to submit documents in the name of a psychiatrist with the purport that "the Mayor of the defendant was suffering from a manuous disease since before the towing, the degree of his family members came to know about, and the preparation of a medical specialist necessary to persuade his family members," and that "documents are likely to be suffering from a manuous disease as of the point of view of the medical specialist and medical treatment," and the above non-indicted 2 demanded documents in the name of a psychiatrist with the premise that "the contents stated by the non-indicted 3 on the Internet and the situation of the person in contact" were true. It is determined that there is a high possibility of a manuous disease, etc., and the above non-indicted 1 was delivered to the non-indicted 2 by preparing an evaluation report with the content of "the above evaluation report to the non-indicted 3," and the above evaluation report was delivered to the above non-indicted 1, who had his own mind or body at the bar of his own examination."

공소외 1은 피고인의 위와 같은 지시를 받고, 정신건강의학과 전문의인 공소외 2가 그 전문적인 지식과 판단에 기초하여 작성한 평가문건을 전문의가 아닌 피고인이 수정한대로 공소외 2에게 수정해줄 것을 요구하는 것은 의료계 종사자로서 할 수 없는 일이라고 생각하였음에도 보건소장에 대한 인사 및 징계 등의 권한이 있는 피고인의 지시를 거절할 경우 입게 될 불이익을 우려하여 어쩔 수 없이 다시 공소외 2를 찾아가 피고인이 직접 수정한 문건을 보여주면서 피고인이 수정한 내용이 반영되도록 공소외 3에 대한 평가문건을 다시 작성해달라고 요청하였다. 위 공소외 2는 정신건강의학과 전문의인 자신이 작성한 문건을 정신건강의학과 전문의도 아닌 피고인이 수정한 것을 보고 매우 기분이 나빴으나 성남시장인 피고인이 분당서울대학교병원이나 센터에 미치는 영향력을 감안하여 이를 거절할 수 없어 피고인이 수정한 내용 중 ‘조울병은 굉장히 심각한 질병’이라는 취지의 내용을 관련 교과서 문언을 참고하여 추가하는 등의 방법으로 피고인이 원하는 수정 취지에 맞게 다시 문건을 작성하였다. 이어 공소외 1이 위와 같이 수정 작성된 문건을 공소외 2로부터 건네받아 이를 피고인에게 교부하자, 피고인은 다시 공소외 1에게 위 평가문건에 분당서울대학교병원이나 센터의 직인을 받아오라고 지시하고, 공소외 1은 위 지시에 따라 공소외 2에게 분당서울대학교병원이나 센터 직인을 찍어달라고 요청하였으나 공소외 2는 정식문서가 아니라는 이유로 이를 거절하고 대신 센터에 가서 자신의 막도장을 찍는 것은 허락하여 공소외 1은 위 센터의 상임팀장인 공소외 28로부터 공소외 2의 막도장을 건네받아 위 수정문건에 날인한 후 피고인에게 교부하였다.

Accordingly, the Defendant, in collusion with Nonindicted 7, made Nonindicted 3 appear to be subject to the examination and protection application under Article 25(1) of the former Mental Health Act by abusing the authority of the branch of the Gu Public Health Center and the center to direct and supervise and hospitalization under Article 25 of the former Mental Health Act, and let Nonindicted 1 revise the above evaluation report according to the Defendant’s intent against Nonindicted 2’s professional knowledge and judgment, against the judgment of Nonindicted 2, and had Nonindicted 1 affix the seal of the above Nonindicted 2 on the documents revised so that he can be seen as a medical doctor’s emotional opinion, and had Nonindicted 2 revise the above evaluation report according to the Defendant’s intention, contrary to his professional knowledge and judgment as a medical specialist.

3) Preparation and delivery of official documents for diagnosis and preparation of application for protection against Nonindicted 3

In the early April 2012, the Defendant: (a) received a report from Nonindicted 1 on Nonindicted 3, along with the relevant legal data, to the effect that “it is difficult to readily conclude that Nonindicted 3 is at risk of undermining himself/herself or others due to mental illness; (b) there is no face-to-face diagnosis; and (c) there is no need for compulsory hospitalization by the market, etc., unless there is his/her spouse’s consent; and (d) presented the “the risk standard for harm to others” publicly notified by the Ministry of Health and Welfare, which is the Ministry of Health and Welfare, by printing out and expressing the “the risk standard for harm to others” by Nonindicted 3, including, but not limited to, inter alia, Nonindicted 7, Nonindicted 49, and Nonindicted 31’s performance expenses, Nonindicted 1’s opinion on hospitalization pursuant to Article 25 of the former Mental Health Act.

The non-indicted 1 sought advice from the defendant to the non-indicted 26, the head of the Gyeonggi-do Mental Health Support Group before receiving the order to continuously proceed with the hospitalization procedure by the market, etc. under Article 25 of the former Mental Health Act, and the above non-indicted 26 also presented the opinion that "it is difficult to readily conclude that the case alone is likely to harm himself or others due to mental illness, and there is no face-to-face diagnosis, and no compulsory hospitalization by the market, etc. may be conducted without the consent of the spouse who is the guardian." The non-indicted 1 reported the result of the above consultation to the defendant around that time.

Since the Defendant, at the Sungnam market room on April 2012, in which Nonindicted 7, Nonindicted 49, and Nonindicted 31, and the head of the revised public health clinic, made the Defendant 1’s appearance with Nonindicted 4 and read, “I would like to be unable to hospitalize Nonindicted 3 in the mental hospital, or why the hospitalization by the head of the Si/Gun would not be possible, but if I would be able to make it possible to determine the law, I would like to say, and I would like to express my opinion continuously, I would like to disregard Nonindicted 1’s opinion, and I would like to find out how Non-Indicted 3 would be hospitalized in the public health clinic for the maximum period of two weeks, and thus, I would like to be able to find out how Non-Indicted 3 would be able to be hospitalized in the public health clinic for the purpose that “I would still be able to be hospitalized in the public health clinic after being hospitalized in accordance with the relevant provision,” and thus, I would like to continue to be able to see whether the Defendant would be hospitalized in the public health clinic after being hospitalized.

Since then, on April 2012, the Defendant instructed Nonindicted 1 to “the head of the Gu office, the mental health center, and the person who is obligated to instruct compulsory hospitalization pursuant to Article 25 shall be the head of the Gu office, and the person who is obligated to instruct compulsory hospitalization pursuant to Article 25 shall be the head of the Si/Gun/Gu office,” and Nonindicted 1 responded to Nonindicted 4 “the head of the Gu office, the head of the Gu, the head of the Si/Gun/Gu office, the head of the Si/Gun/Gu office, the head of the Si/Gun/Gu office, the head of the Si/Gun/Gu office, the head of the Si/Gun/Gu public health center, the head of the Si/Gun/Gu public health center, shall not be the head of the Si/Gun/Gu public health center.”

As above, the Defendant did not follow the Defendant’s instructions, and observed the attitude that Nonindicted 1 did not follow Nonindicted 4’s instructions, and only the head of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center to replace Nonindicted 1 from Nonindicted 3 to Nonindicted 4 on May 2, 2012, the head of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health

As above, at the Sungnam Viewing market room on April 2012, Nonindicted 4 knew that the hospitalization of Nonindicted 3 by the mayor, etc. under Article 25 of the former Mental Health Act with respect to Nonindicted 3 was unlawful because it did not meet the requirements. Furthermore, around May 2, 2012, Nonindicted 4 was appointed as the head of the branch public health center at the branch public health center at the branch public health center, and Nonindicted 9 of the head of the regional public health team at the branch public health center at the branch public health center, and Nonindicted 29 of the head of the health administration division at the head of the branch public health center at the branch public health center at the branch public health center at the branch public health center at the branch public health center at the branch public health center at the branch public health center, and became aware that the above direction of the Defendant was unlawful.

Meanwhile, on June 11, 2012, the Defendant thought that there was no progress in the procedure of hospitalization with Nonindicted 3 as the center did not cooperate even after replacing the head of the Gu branch of the public health clinic to Nonindicted 4. The Center pressured Nonindicted 2 to find the Seoul National University Hospital entrusted with the foregoing center with Nonindicted 50, Nonindicted 7, and Nonindicted 31, etc., and sought advice from Nonindicted 24, a psychiatrist, who is a psychiatrist, and sought advice from Nonindicted 24, who is a mental health specialist, and asked Nonindicted 3 to the effect that “the foregoing procedure of hospitalization is not a way other than a method of sending evidence to the hospital,” and the Defendant responded to the purport that “Non-Indicted 24 should not be subject to compulsory hospitalization of the foregoing hospital,” and the Defendant should not be subject to any negative measure to inform Non-Indicted 3 as to why Non-Indicted 2 was forced to be hospitalized. The same should not apply to this reason.

Prior to the report of the above relevant Acts and subordinate statutes by Nonindicted 1, along with Nonindicted 24, Nonindicted 25, and Nonindicted 32, the director of the Seoul National University Hospital, who is a mental health clinic, as above, the Defendant knew that hospitalization by Nonindicted 3 by the market, etc. under Article 25 of the former Mental Health Act with respect to Nonindicted 3 was not possible because the requirements are not met. In addition, the term “finding” under Article 25(1) of the former Mental Health Act means that, after receiving a civil petition from the ordinary center, a mental health specialist or a mental health specialist who is the head of the center directly called the site for mental illness and observe the procedure of consultation or for a certain period with respect to the suspected mentally ill person, despite the absence of the above “finding”, the Defendant continued to be hospitalized at the Seongbuk market room around June 12, 2012, with Nonindicted 4, who is the head of the Seoul National University Hospital, and the head of Nonindicted 32, who is the head of the Seoul National University Hospital, and continued to go to the public health Center.

Accordingly, on June 2012, Non-Indicted 4 requested that Non-Indicted 2 file an application for diagnosis and protection with the following purport: (a) Non-Indicted 4 and Non-Indicted 7 apply for diagnosis and protection, which is a prior condition to proceed with hospitalization procedures pursuant to Article 25 of the former Mental Health Act, at the Division of the Gu Public Health Center; and (b) around that time, Non-Indicted 4 requested Non-Indicted 2 to the effect that “I would not have to be hospitalized in the market,” while requesting Non-Indicted 4 and Non-Indicted 7 to the effect that “I would not have to be hospitalized in the market.” However, Non-Indicted 2 rejected Non-Indicted 4 and Non-Indicted 7 by stating that “I would have to not have to be hospitalized in the market.”

In addition, Nonindicted 4 instructed Defendant 3 to take the procedure of hospitalization by the mayor, etc. under Article 25 of the former Mental Health Act from Nonindicted 7, around that time, instructed Nonindicted 5 to hold an interview with the Center, and sent the results of the interview to Nonindicted 9, who was the head of the regional health center in the above branch of the public health center, on June 19, 2012, called the “request for interview” to Nonindicted 5, who was called the head of the regional health center in the above branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health center, and requested the interview to the Center, and sent the results of the interview to the public health center in the branch of the branch of the branch of the branch of the Gu (public health administration department), and ordered Nonindicted 29 to review the contents of the interview to the public health center of the above 20th of the branch of the branch of the branch of the branch of the local health center. Accordingly, Nonindicted 29, after reviewing it, sent the above 20th of the draft of the draft of the public health center.

On June 20, 2012, Nonindicted 4, as of June 20, 2012, instructed Nonindicted 9 to draft a public letter stating, “The guardian of a person suspected of having mental illness,” Nonindicted 4, “as a result of the center’s interview with the guardian of the person subject to mental health counseling, who is suspected of having mental illness, shall apply for diagnosis and protection as soon as possible,” and instructed Nonindicted 29 to review it, Nonindicted 9 puts the above public letter in accordance with the above order, and Nonindicted 29 reviewed it, and then sent the above public letter to the Center by Nonindicted 4’s approval.

Accordingly, the defendant, in collusion with the non-indicted 7, ordered the center to conduct the procedure of hospitalization under Article 25 of the former Mental Health Act with respect to the non-indicted 3, including the application for diagnosis and protection, in collusion with the public health clinic of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health clinic, to direct and supervise the branch of the branch of the public health clinic and the center, and to abuse the authority of the gender south market that can be hospitalized under Article 25 of the former Mental Health Act, and to let the non-indicted 3 be hospitalized under Article 25 of the former Mental Health Act by abusing the authority of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health clinic and the center of the branch of the branch of the branch of the public health clinic, to request the center for the result of the interview with the public health clinic of the non-indicted 5, and to send the result of the interview to the public health clinic of the five minutes.

3) Diagnosis and preparation and dispatch of a written application for protection against Nonindicted 3

On June 20, 2012, Nonindicted Party 2 rejected the contents of the request for diagnosis and protection of the branch public health clinic, such as the above paragraph 2, in a formal manner, that “it is impossible to apply for diagnosis and protection at the present stage” as the content of the request for examination and protection of the branch public health clinic.

After July 2012, Non-Indicted 4 thought that the Seoul National University Hospital did not assist Non-Indicted 3 in the procedure of hospitalization at the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the Seoul National University, and that the branch of the branch of the branch of the branch of the branch of the branch of the branch of the △ Hospital did not seek two times the branch of the branch of the △ Hospital, which is a hospital under the direction and supervision of the public health clinic of the branch of the branch of the branch of the branch of the △ Hospital, and requested Non-Indicted 10 of the department of mental health who is affiliated with the above branch of the branch of the branch of the branch of the △△ Hospital to “a written opinion or diagnosis necessary for being hospitalized,

On the other hand, around July 28, 2012, Nonindicted 7 prepared a certificate of the content that “ Nonindicted 2, a mental health specialist, demanded the diagnosis and treatment of children in the name of Nonindicted 3 and the mother of Nonindicted 5, using a computer located at a place to pressure Nonindicted 3 to apply for the diagnosis and protection against Nonindicted 3.” Nonindicted 7 reported this to the Defendant, and sent the said certificate to Nonindicted 32 and the head of the Center on Seoul Special Hospital on the following day after reporting it to the Defendant.

Nonindicted 2: (a) After receiving the aforementioned content certification, the statement that he/she will be legally responsible to the side of the Seoul National University Hospital working on his/her contractual basis; and (b) on the premise that if he/she did not accept the said request, Nonindicted 4, the head of the supervising agency of the Center, and Nonindicted 7, etc. urged him/her to continue his/her service at the Seoul National University Hospital, he/she would be unable to serve in the future; and (c) around August 2, 2012, at the Center, Nonindicted 2: (a) as prescribed in Article 6(1) and (2) of the former Enforcement Decree of the Mental Health Act, Nonindicted 2, who found a person suspected of harm to himself/herself or others, submitted an application for diagnosis and protection to the Mayor having jurisdiction over the place where he/she discovered; (d) Nonindicted 2, the address of the person suspected of being a mentally ill person, and (e) Nonindicted 3, who prepared an application for diagnosis and protection to the public health clinic, and (e) Nonindicted 2, an application for the examination and protection of the draft.

Accordingly, for the purpose of hospitalizing Nonindicted 3 by Nonindicted 7 pursuant to Article 25 of the former Mental Health Act, the Defendant, in collusion with Nonindicted 7, led Nonindicted 3 to direct and supervise the Gu branch public health clinic and center and abused the authority of the gender south market that can be hospitalized pursuant to Article 25 of the former Mental Health Act, and caused the relevant person, such as Nonindicted 2, etc. to perform a non-obligatory act by having the center-related person, such as Nonindicted 2, file an application for diagnosis and protection with Nonindicted 3, who did not face a face-to-face meeting, against relevant statutes, practices of the center that determines whether to apply for medical examination and protection after a long-to-face meeting observation, and

4) The attempt to enforce hospitalization against Nonindicted 3 pursuant to Article 25(3) of the former Mental Health Act

On August 3, 2012, Nonindicted 4 received Nonindicted 2’s written request for diagnosis and protection, and instructed Nonindicted 9 to draft an official door stating “In response to Nonindicted 2’s request for diagnosis and protection pursuant to Article 25(1) of the Mental Health Act, Nonindicted 4 cooperates with a person suspected of having mental illness pursuant to Article 25(2) of the same Act to give diagnosis to him/her and instruct Nonindicted 29 to review him/her. Accordingly, Nonindicted 9 puts the above official door in accordance with the above order; Nonindicted 29 was examined; Nonindicted 4, through an employee of the public health clinic; and Nonindicted 4, prepared the above official door in response to Nonindicted 25(1) and delivered it to Nonindicted 4, the mental health clinic’s request for the examination and treatment of the person suspected of having mental illness in response to his/her request by Nonindicted 4, who is the medical instruction and supervision authority for the diagnosis and treatment of the said person.” On August 7, 2012, Nonindicted 10 continued to be requested by Nonindicted 4.

All of the above circumstances are as follows: (a) Nonindicted 7, on August 2012, Nonindicted 31, 2012, read Nonindicted 31, “In order for Nonindicted 7 to meet all the requirements, two viewing registered security guards to interview Nonindicted 4 and forced hospitalization of Nonindicted 3; (b) Nonindicted 31, who was designated in advance by Nonindicted 7, carried two viewing security guards designated by Nonindicted 7, and sent Nonindicted 3 to Nonindicted 4 as a branch public health clinic, and Nonindicted 4, who was in fact aware that the hospitalization of Nonindicted 3 against the will of the wife, who is the guardian of Nonindicted 3 and Nonindicted 3, was illegal; and (c) Nonindicted 4 rejected this.

그러나 공소외 4는 2012. 8. 17.경 계속하여 피고인과 공소외 7 등으로부터 시장 등에 의한 입원 절차 이행의 압박을 받자 피고인의 공소외 3에 대한 구 정신보건법 제25조 시장 등에 의한 입원 절차 진행 지시에 따르지 아니할 경우 피고인에 의한 고소, 인사상 불이익 등을 염려하여 결국 앰뷸런스를 이용하여 공소외 3을 위 공소외 10이 작성한 ‘정신질환자로 의심되는 자에 대한 진단 의뢰에 대한 회신’ 문건으로 분당△병원에 입원시키기로 마음먹고 위 공소외 9에게 ‘2012. 6. 15.자 성남시 정신건강센터에 대상자의 어머니와 여동생이 방문하여 면담하였던 대상자의 진단의뢰를 위해 차량 및 정신보건전문요원의 동행을 요청하오니 협조하여 주시기 바랍니다’라는 내용의 공문을 기안하도록 지시하고, 공소외 29에게 검토하도록 지시하였다. 그리하여 공소외 9가 위 지시에 따라 위 내용의 공문을 기안하고, 공소외 29가 이를 검토하고, 그런 다음 공소외 4는 이를 결재하여 센터에 발송하였다. 이어 공소외 4는 같은 날 공소외 9와 함께 보건소 앰뷸런스를 타고 센터로 가서 공소외 2를 태운 다음 ▷▷경찰서에 출석하기로 되어 있는 공소외 3을 강제로 입원시키기 위해 ▷▷경찰서로 가면서 공소외 2에게 “오늘 진단을 하고 바로 입원시킵시다”라고 말을 하였다. 그러나 공소외 2가 “그건 절대 안된다”라고 말하고, 불상의 성남시 관계자로부터 유선으로 경찰관들이 ‘공소외 3을 정신병원에 강제로 입원시키는 것은 위법하다’라는 취지로 말하였다는 것을 전해 듣고 자신이 형사처벌을 받을지 모른다는 생각에 공소외 3에 대한 강제입원 시도를 포기하고 앰뷸런스를 돌려 분당구보건소로 돌아왔다.

Accordingly, for the purpose of being hospitalized by Nonindicted 7 pursuant to Article 25 of the former Mental Health Act, the Defendant, in collusion with Nonindicted 7, led and supervised the branch public health clinic and center, and abused the authority of the gender south market that can be hospitalized by Article 25 of the former Mental Health Act, and caused Nonindicted 4 and other persons related to the branch public health clinic to be hospitalized by Nonindicted 3 under the relevant Acts and subordinate statutes and Article 25 of the former Mental Health Act, as a result of the examination of the branch public health clinic, that it is impossible for Nonindicted 3 to be hospitalized by Nonindicted 4 and other persons related to the branch public health clinic, and requested the center to accompany Nonindicted 4, Nonindicted 2, and Nonindicted 9 to accompany the center, against the practices of the branch public health clinic and center, and against the principle of face-to-face treatment in the field of mental health specialists, etc.

B. Determination on the assertion on the terms of lawsuit

1) Summary of the assertion

This part of the facts charged contains contents that could give a judge an unreasonable prejudice, such as the defendant's personal family history, the defendant's psychological condition, and legal opinion on the law, which are not related to the specification of the facts charged or the facts constituting the elements of the facts charged, and thus, the indictment is null

2) Determination

A) When a prosecutor institutes a public prosecution, he/she shall submit only one indictment in principle, and attach documents or other things that may cause the court’s prejudice on the case, or not cite the contents of the indictment (Article 118(2) of the Rules on Criminal Procedure). It also includes the so-called “Prohibition of entry of other facts” that the indictment does not allow the court’s prejudice as a fact other than the facts required by law. Whether the violation of the principle of an indictment only is included in the contents of the indictment only. In light of the type and content of the crime as stated in the facts charged, the issue of whether the documents or other things attached or quoted in the indictment, and whether the facts other than those required by law may interfere with the judge’s understanding of the substance of the crime by causing a judge’s prejudice (see, e.g., Supreme Court en banc Decision 2009Do7436, Oct. 22, 209).

B) The facts charged of abuse of authority and obstruction of another’s exercise of rights are the constituent elements of the Defendant’s act of abuse of authority and obstruction of another’s exercise of official authority, and whether the Defendant’s exercise of official authority was practically unlawful and unreasonable as a commission of the exercise of official authority. As such, it is necessary to describe the grounds for the Defendant’s act and the interpretation of relevant statutes, background, motive and process of the Defendant’s act of abuse of official authority, and the psychological state of the person involved in the case, etc. in a way that clearly describes the fact that the pertinent act constitutes abuse

In this regard, even if there is a somewhat unnecessary or broad statement in the facts charged, it does not seem to have reached the degree that the judge could be an obstacle to grasping the substance of the crime by causing a judge’s prejudice.

This part of the defendant and defense counsel are not accepted.

C. Interpretation of relevant statutes, such as Article 25 of the former Mental Health Act

This part of the facts charged includes the defendant's act related to the progress of the procedure under Article 25 of the former Mental Health Act with respect to non-indicted 3, and the prosecutor contains the interpretation theory of the relevant provision. However, since there are different opinions between the defendant and the prosecutor about the interpretation of the requirements, etc. of the relevant provision, the meaning of Article 25 of the former Mental Health Act is examined on the premise of judgment on the facts charged.

1) Relevant statutes

Article 25 (Hospitalization by Head of Si/Gun/Gu) (1) A psychiatrist or mental health specialist who discovers a person suspected of undermining himself/herself or others due to mental illness may request the head of a Si/Gun/Gu to diagnose and protect the person concerned. (2) Upon receipt of an application under paragraph (1), the head of a Si/Gun/Gu shall immediately request a psychiatrist to diagnose the person suspected of suffering from mental illness. (3) When it is deemed necessary to accurately diagnose the symptoms of a person suspected of suffering from mental illness under paragraph (2), the head of a Si/Gun/Gu may allow the relevant person to be hospitalized within a fixed period of not more than two weeks (hereinafter referred to as "hospitalize") at a mental medical institution or a general hospital established or operated by the State or a local government (hereinafter referred to as "person in question") and the head of a Si/Gun/Gu who discovers the risk of harm to himself/herself or others due to mental illness pursuant to Article 6 (1) of the former Enforcement Decree of the Mental Health Act (amended by Presidential Decree No. 28074, May 29, 2017).

2) Legislative intent of the former Mental Health Act and procedures for hospitalization of mentally ill persons

The purpose of the former Mental Health Act is to contribute to the improvement of mental health of citizens by preventing mental illness and prescribing necessary matters concerning the medical treatment and rehabilitation of mentally ill persons (Article 1). The Mental Health Act provides for the right to optimum treatment and protection for all mentally ill persons in the concept of social security law, including the dignity and value of human beings, prohibition of discrimination, and the right to receive optimum treatment and protection for all mentally ill persons with limited mental capacity, the right to special education in cases of minors, the right to self-help and free exchange of opinions with other persons (Article 2).

The former Mental Health Act recognizes hospitalization by a person responsible for protection (Article 23) and non-voluntary hospitalization (Article 24), and hospitalization by a head of a Si/Gun/Gu (hereinafter “head of a Si/Gun/Gu, etc.”) (hereinafter “head of a Si/Gun/Gu, etc.”) and emergency hospitalization (Article 25), and takes into account not only his/her treatment and rehabilitation to a mentally ill person, but also social defense aspects, as well as appropriate treatment. In cases of non-voluntary hospitalization, it may result in infringing on an individual’s physical freedom, depending on cases where he/she is hospitalized in a mental medical institution, etc. against or against the will of a person suspected of being a mentally ill person. Accordingly, a person suspected of having a mentally ill person without due process under the former Mental Health Act and due process may not be hospitalized in a mental medical institution, and a person who violates this shall be held a civil and criminal liability.

The former Mental Health Act strictly provides for the requirements and procedures of hospitalization in order to prevent indiscreet abuse of hospitalization of a mentally ill person. In principle, voluntary hospitalization of a mentally ill person is recommended, and, even in the case of voluntary hospitalization, the mentally ill person is required to submit an application for hospitalization, and clearly confirm the intention of hospitalization. In the case of hospitalization by a legal guardian, the consent of the legal guardian and the diagnosis of a mental health specialist is required, and the consent of hospitalization and documents by the legal guardian are to be submitted. In the case of hospitalization by the head of a Si/Gun/Gu, the hospitalization by the legal guardian is likely to harm himself/herself or others, and the accurate diagnosis of the symptoms is necessary, the person suspected as a mentally ill person may be hospitalized within a fixed period of not more than two weeks at a mental medical institution or a general hospital. In addition, the period of validity of hospitalization can be extended without the consent of the medical specialist of not less than two mental health specialists who need to continue hospitalization of the mentally ill person, except for cases where hospitalization is highly dangerous to himself/herself or others, and thus, it can be conducted within a certain period of diagnosis by a police officer.

3) Independent meaning of Article 25(1) and (2) of the former Mental Health Act

As seen earlier, hospitalization in a mental medical institution, other than the case of emergency hospitalization, is based on the language and text of the law itself, and even based on the premise of diagnosis. As to the diagnosis which is the premise of hospitalization, other provisions regarding hospitalization except Article 25 of the former Mental Health Act do not regulate the procedure and method of diagnosis.

In relation to hospitalization by the legal guardian under Article 24 of the former Mental Health Act, even if the legal guardian gave consent to hospitalization by the legal guardian, the director of the medical institution for mental illness has diagnosed the mentally ill person in direct face-to-face and diagnosed the necessity of hospitalization. Accordingly, the director of the medical institution for mental illness is allowed to exercise physical strength within the reasonable scope from a mental and social perspective only when the mentally ill person resists the hospitalization measures that meet these requirements (see Supreme Court Decision 2000Do4415, Feb. 23, 2001, etc.). Thus, the Supreme Court declared that there is no ground to permit the exercise of physical force to undergo face-to-face diagnosis in the course of proceeding hospitalization by the legal guardian.

However, even after the above legal principles have been declared, in light of the fact that the procedure under Article 25 of the former Mental Health Act was almost not followed at the mental medical institution in a day, and instead, in the case of not taking part in the illegal act committed in the course of transfer from the side of the mental medical institution, the victim’s hospitalization may be held liable without criminal liability and may meet the requirements for hospitalization by the legal guardian. Accordingly, the legal guardian used the following methods: (a) the method of compulsory transfer of a person who did not undergo the diagnosis to a mental medical institution; (b) the protection hospitalization system permits the transfer of a mentally ill person to a mental medical institution under the pretext of diagnosis by a mental health specialist with the consent of two legal guardians; (c) the mentally ill person is frequently being illegally transferred by a private emergency transport to the legal guardian; or (d) the detention or assault is frequently caused in the process.

As such, Article 25(2) of the former Mental Health Act provides that even if a person suspected as a mentally ill person is deemed to have a risk of undermining himself/herself or other persons, the procedure under Article 25(3) of the former Mental Health Act may proceed with with the procedure under Article 25(3) of the former Mental Health Act after first priority is given to hospitalization by a person who is not a procedure under Article 25(3) of the former Mental Health Act or by a legal guardian. Article 25(1) and (2) of the former Mental Health Act provides that the aforementioned procedure has the meaning as a prior procedure of hospitalization by a person who is obligated to provide for diagnosis and protection; Article 25(2) provides that the request for diagnosis of a mentally ill person upon request for diagnosis and protection has no room for discretion to the mayor, etc.; while Article 6(3) of the Enforcement Decree provides the Mayor, etc. with discretion to hospitalization and, even if that person satisfies the requirements of hospitalization under Article 25(2) of the latter Mental Health Act, it is meaningful that the procedure is not a mental health specialist.

In addition, in addition to Article 25 of the former Mental Health Act, even if a person needs to undergo a diagnosis, the former Mental Health Act does not provide a basis for mental health diagnosis by another person's will, such as the legal guardian, without depending on his/her own will, so that the diagnosis according to his/her own will can be the basis for hospitalization. In principle, even in cases where the diagnosis should be conducted inevitably against his/her own will, the requirements are strict. The commencement of the procedure is limited to a mental health specialist or a mental health specialist who is an expert, other than the legal guardian, etc., and the person who is the subject of the diagnosis following the commencement of the procedure can become a mental health specialist designated by the head of a local government, who is not the applicant or the legal guardian, etc., so that the human rights of the subject is not unfairly infringed.

4) The meaning of “finding” under Article 25(1) of the former Mental Health Act

As seen earlier, unlike other provisions of the former Mental Health Act, Article 25 of the same Act independently provides for the procedure of diagnosis that is distinguished from hospitalization within the relevant procedure for the purpose of hospitalization. In addition, the literal meaning of “finding” is interpreted as “the discovery of things, phenomenon, or fact-finding which was not known or yet known,” and there is no restriction on the method and method of discovery even upon examining the former Mental Health Act or other medical related Acts and subordinate statutes. In addition, Article 25(2) of the former Mental Health Act provides that where a request for diagnosis and protection is filed pursuant to Article 25(1) of the same Act, the request for examination and protection may be continued to request the diagnosis without determination as to the substantial content thereof. In light of the fact that there is no provision premised on face-to-face request for diagnosis and protection in accordance with the Enforcement Decree and the Enforcement Rule of the same Act, this procedure does not require hospitalization by the legal guardian, but it is reasonable to view that the procedure is not necessarily restricted to a psychiatrist’s mental health specialist’s mental health diagnosis or treatment method necessary for hospitalization, etc.”

5) Procedures for requesting diagnosis under Article 25(2) of the former Mental Health Act

As seen earlier, Article 25(2) of the former Mental Health Act provides that a person who does not want to undergo a diagnosis based on the administrative authority of the Mayor, etc. shall be diagnosed by a mental health specialist against his/her will. Moreover, since the procedure for requesting a diagnosis falls under the procedure for receiving a diagnosis, which serves as the basis for hospitalization, a diagnosis by a mental health specialist directly must be conducted, and the procedure for requesting a diagnosis does not include providing documents, etc. to a mental health specialist formally, so that a mental health specialist can be diagnosed by a person who complies with a request for diagnosis. Further, the above procedure for requesting a diagnosis constitutes a disposition against the will of the person subject to an administrative authority, and thus, the head of the Si/Gun/Gu may be permitted to exercise the right to request a special Self-Governing Province pursuant to Article 25(2) of the former Mental Health Act, based on the premise that the person suspected of mental illness is not in compliance with the basic principles of the former Mental Health Act or the procedure for providing a safe diagnosis and treatment to a person subject to a diagnosis and treatment within the reasonable scope of time.

6) Whether hospitalization under Article 25(3) of the former Mental Health Act requires face-to-face diagnosis

As seen earlier, in the procedure of hospitalization except for emergency hospitalization under Article 40(1) of the former Mental Health Act, the examination is required, and the procedure of hospitalization under Article 25(3) of the former Mental Health Act constitutes an independent procedure of hospitalization, namely, “evaluation hospitalization.” In history, only the procedure of hospitalization under Article 25(3) of the former Mental Health Act is difficult to be regarded as a procedure of exclusion under Article 40(1) of the former Mental Health Act. Furthermore, as seen earlier, the procedure of requesting the diagnosis under Article 25(2) of the former Mental Health Act is not merely a mere request for the diagnosis, but is a procedure premised on actual diagnosis (Article 6 of the Enforcement Decree of the same Act provides that “the Mayor, etc. may request hospitalization, etc. based on the result of the request for diagnosis.” Even in accordance with attached Form 18 of the Enforcement Rule of the same Act, the examination procedure must be deemed necessary and directly conducted by the diagnosis of the mentally ill person, including the date and time and place, in relation to the request for diagnosis.

Therefore, in order to take a measure of hospitalization under Article 25(3) of the former Mental Health Act, the medical specialist directly examines and recognizes the necessity of hospitalization (when it is deemed necessary to conduct accurate diagnosis of the symptoms because of the risk of harm to his/her own body or others) as stipulated by the law, according to the request of the diagnosis, and the head of the mental medical institution shall determine the hospitalization at the request of the Mayor, etc. based on the request of hospitalization. In addition, when a person suspected of having a mental illness who meets all the requirements, the administrative agency may exercise physical strength within the reasonable scope in light of his/her mental health and social nature in order to achieve the purpose of hospitalization.

D. Legal principles regarding the crime of abusing authority and obstructing another’s exercise of rights and the exceptional points of this part of the charges

1) Relevant legal principles

A) The term “violation of authority” in the crime of abuse of authority refers to the case where a public official unlawfully exercises it with regard to matters falling under his general authority, that is, in the form of a formal and external aspect, a public official appears to have performed an act other than a justifiable authority. Accordingly, the abuse of authority is distinguishable from a tort using a status where a public official does an act that does not fall under his general authority. The term “duty” in the crime of abuse of authority refers to a legal obligation and does not constitute a simple psychological obligation or moral obligation (see, e.g., Supreme Court Decision 90Do2800, Dec. 27, 191).

B) If the crime of abuse of official authority under Article 123 of the Criminal Act is completed, it is insufficient to say that there was an act of having the victim perform an act without any obligation, and it is required to have the victim performed an act without any obligation (see Supreme Court Decision 75Do2665, Oct. 10, 1978). There is a proximate causal relation between the abuse of official authority and the result of the victim’s act of non-performance of legal obligation (see Supreme Court Decision 2002Do3453, Apr. 15, 2005).

C) “When one allows a person to perform a non-obligatory act” means the time when one allows a person to perform a non-obligatory act, and even if a public official allows a person in charge of business to perform a fact-finding act assisting the performance of his/her duties with respect to matters belonging to his/her official authority, this does not constitute “when one causes a person to perform a non-obligatory act” in the crime of abusing authority and obstructing another’s exercise of rights. However, if the standards and procedures for performing his/her duties specifically stated in statutes and the person in charge of business has been granted an inherent authority and role to apply the standards and procedures for performing his/her duties and to participate in the procedures, the said act constitutes “when one assists a person in performing his/her duties in violation of such standards and procedures” (see Supreme Court Decision 2010Do13766, Feb. 10, 201).

D) The criteria for determining whether a public official constitutes abuse of official capacity ought to be determined by taking into account all the elements, such as the purpose of a specific public official’s act of performing his/her duties, the necessity and reasonableness of the situation in which the act was committed, whether the act satisfies the legal requirements that permit the exercise of official authority (see Supreme Court Decision 2010Do11884, Jan. 27, 2012).

2) The exceptional points of this part of the facts charged

The prosecutor considers that the defendant would have attempted to hospitalize Nonindicted 3 pursuant to Article 25 of the former Mental Health Act. However, in order for the defendant to commit the crime of abuse of official authority against Nonindicted 3, the defendant could not be punished as an attempted crime of abuse of official authority and obstruction of another’s exercise of individual official authority against the members of the branch public health center and the Seongbuk mental health center in the series of processes to hospitalize Nonindicted 3 as a victim and thereby constitutes a crime of abuse of official authority. The crime of abuse of official authority constitutes a crime of abuse of official authority. Since the crime of abuse of official authority requires another person to commit an act of abuse of official authority, the requirements required by Article 123 of the Criminal Act, such as whether the act of having the defendant perform an act without any individual obligation, separately from the crime of abuse of official authority, should be satisfied (in order for the defendant to commit the crime of abuse of official authority against Nonindicted 3, the act of abuse of official authority with respect to a public official belonging to the branch public health center or the specialized public official belonging to Nonindicted 3.

E. Evaluation of the details and circumstances leading the Defendant to proceed with the procedure under Article 25 of the former Mental Health Act with respect to Nonindicted 3

1) Circumstances suspected of having mental illness of Nonindicted 3

A) The situation surrounding the brush of preferential commission of juvenile training centers in 2002

(1) On February 2002, Nonindicted 3 opened a meeting on the homepage of the Sungnam City with Toluthian, and made a statement that he/she was given preferential treatment to the youth training shop in Sungnam-si, the Sinnam City, and that he/she became a Buddhist relationship with women twice.

공소외 3은 그 후 위 게시글과 관련하여 자신을 취재하려는 □◇방송의 공소외 51 기자와 2002. 2. 5.부터 2002. 2. 21.까지 전화 통화를 하면서, 전화 통화 과정에서 횡설수설을 하거나, 두서 없이 욕설이 섞인 말을 하기도 하면서 ‘하나도 없다, 도덕적인 잘못은 전혀 증거가 없다. 나는 홀딱 벗겠다‘, (간통한 사실을) 내가 하나님한테 고백한거지, 인간한테 고백한 거 아니야’, ‘내 언어는 불립문자라서 사람들이 이해를 못해’, ‘공인회계사 공소외 3은 톨스토이, 참회록처럼 비록 완전한 참회, 살인을 했다, 강간을 했다는 식으로 참회를 못합니다. 톨스토이를 보고 느낀 거예요’, ‘간통도 했습니다. 이러한 간통은 예수님이 말씀하셨듯이 이 여자를 보고 음미하고 간통에 대해서’, ‘술집 가서 씹을 했다’, ‘내가 홀딱 벗은 거야. 톨스토이를 보고. 나는 이 세상을 버렸잖아요’, ‘이 세상 지성인들이여, 공소외 3이 좆 까놓고 얘기하는 사람 있나요 얘기해 우리 어머니한테 가서 내가 뭐라고 한줄 알아요? 어머니 옛날에는 여기 지나가는 예쁜 여자만 보면 좆이 자지가 섰습니다. 공소외 3이 이제 안 섭니다’, ‘부처님이 애를 꼬시려고 부처가 나간다고 그러니까 3천 명이 누워서 홀딱 벗고 이러고 있어. 부처가 이렇게 딱 이렇게 보더니 야 이 씨발 왜 이렇게 시체가 많아? 공소외 3은 30명만 딱 홀딱 벗겨놓고, 대한민국 제일 예쁜 여자. 좆이 안서야 돼’, ‘절대 좆이 안서야 돼. 거기서 좆이 서면 공소외 3은 헛일이야‘, ’예수 새끼가 재림하는 거 필요 없고‘, ’아니 뜰 필요 없어요. 죽어야 돼, 나는 더‘, ’발칸이라는 사람이, 발칸이라는 사람이 아버지가 제우스야. 제우스 열차를 타본다고, 화차를 타본다고 탔다고. 제우스가 뭐라고 그랬어? 너무 뜨지도 말고 너무 가라앉지도 마라‘, ’술 먹고 저녁에 씹한 거를 간통이라고 그거를 나는 하나님한테 고백했다니까? 인간의 언어가 아니고. 우리 마누라가 만날 물어 본다고‘, ’하나님이 도와준대, 창세기에 하나님이 보시기에 아주 좋았더라, 그러면 돼 공소외 3은 죽어도 괜찮아‘ 등의 이상하거나 의미를 알기 힘든 말을 하였고, 공소외 51은 당시 전화통화 과정에서 확인한 공소외 3의 발언과 아래의 조증약을 먹었다는 내용을 듣고 공소외 3이 정신적인 이상이 있다고 생각하였다는 취지의 진술을 하였다.

그리고 공소외 51은 자신이 위 특혜위탁의혹 관련 기사를 올리자 공소외 3이 전화를 걸어 “성남에서 매장시켜 버리겠다, 죽여버리겠다”고 협박을 하고, □◇방송 홈페이지, ☆☆▽▽모임 홈페이지, 성남시청 홈페이지에 공소외 51의 기사 내용에 반발하는 글을 수백 건씩 올리고, □◇방송 본사로 전화를 하루에도 수십 통씩 걸어와 “사장을 바꾸라, 보도국장을 바꾸라”라고 소리를 지르고 욕설을 하였다는 취지로 진술하기도 하였다.

(2) At the time, Nonindicted 52, a working-level of the △△△△△ group, stated that, at that time, Nonindicted 52, who was a working-level of the △△△△ group, expressed that Nonindicted 3, who did not enter the Defendant, Nonindicted 3, who reported the suspicion of entrustment of preference, and the media to the reporters and the media that reported the alleged fact of the above preferential commission, had the name of the resistance known to the Defendant and Nonindicted 3, who took advantage of the phone and the △△△△△ group, and who was sexually superior to the honor or the ministry, made efforts to become an adult, is superior to the adult military in that he was making efforts to become an adult.”

(3) Nonindicted 50 and Nonindicted 53 stated that Nonindicted 3 used the Defendant’s home and made a statement that there was an enemy by finding out the Defendant’s home.

B) As to the uniforms of 2002, 2002

(1) On June 5, 2012, Non-Indicted 3 stated that Non-Indicted 13 was in fluent with the Defendant, and Non-Indicted 13 was influent with the Defendant, and Non-Indicted 13 took place on the Pins North and Ninsber Brogs, etc., “this article is brought about through the spirit and after delivery,” and “a medicine” is written on the Sins North and Ninsberg., which was written on the Sins, and was investigated as a suspect of the case of assaulting her mother and her birth at the Sungnam branch of the Suwon District Prosecutors’ Office on October 9, 2012, Non-Indicted 3 stated that Non-Indicted 13 was influent with the spirit and medicine, and that it was written on the Internet, which was written on the P influsium, and that it was not written on the Internet.”

(2) Around February 2002, Nonindicted 3 and Nonindicted 51 calls with Nonindicted 51 reporters and calls, Nonindicted 3 said, “The Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Doese Does

(3) 공소외 13이 근무하는 ◎◎◁◁병원의 진료기록부에 작성일자가 2002. 2. 16.으로 된 공소외 3의 이름이 기재된 기록이 있다.

(4) At the time, Non-Indicted 13 made a statement to the effect that: (a) at the time, the Defendant was exempted from the charge, rather than the charge for the kind of medicine in the court; (b) at the time, Non-Indicted 13 made a statement to the effect that: (c) at the time, Nonindicted 13 made a request by the Defendant “I am too difficult due to punishment; (d) a large number of claims; and (e) made a lot of comments on the Internet bulletin board; (c) Non-Indicted 3 was heard upon the request of members of the △△△△ Group; and (d) the Defendant cannot be said to have made a call at the time; and (e) in circumstances, the Defendant was able to be deemed to have a weak effect.

(5) Nonindicted 11 stated, “A person who was aware of such a medicine. Nonindicted 13 and the Defendant attempted to put Nonindicted 3 into the difficult border.”

(6) At the time of Nonindicted 15, Nonindicted 54, Nonindicted 14, and Nonindicted 19, the persons related to Nonindicted 3’s relatives, Nonindicted 55, Nonindicted 53, and Nonindicted 52, etc. stated that Nonindicted 3 was aware that he/she was aware that he/she was to drink, and that Nonindicted 11 was aware that he/she was to go to the Korean medicine during Nonindicted 3’s statement.

(7) While Nonindicted 13 appears to have acknowledged that he gave a little in the course of the currency with Nonindicted 3, Nonindicted 13 made a statement to the effect that he is fine because he did not have the record.

C) Statements by families against Nonindicted 3

(1) around 2002, Nonindicted 50 stated that Nonindicted 3 5 had a little debate with the mother of Nonindicted 5 on how to resolve a male problem. The mother of Nonindicted 50 stated that Nonindicted 3 had a little debate with other children.

(2) While Nonindicted 14 changed from around 200 to around 200, Nonindicted 3 took violent and abnormal actions, Nonindicted 14 stated that, in the early 2000s, at the house of 2000 major Nonindicted 20, she spreads a bath to a large amount of punishment without any justifiable reason, and returned to the company. Nonindicted 54 made verbal abuse, such as she was frighting and killed in a woman Nonindicted 54’s husband’s fighting, with which he could not have been able to see himself. When she had sexual intercourses or specifications, Nonindicted 3 was trying to see the latter while she was in length and tried to drive the latter, and she was the overtaking and the latter, and she was also the latter and the latter, who did not lend KRW 50 million to her mother.”

(3) From among the counseling records in the National ▽▽ Mental Hospital, “Nonindicted 3 was showing a large amount of economic difficulties in 2007.” The same is the same when there is a record that there is a record that there is a record that there is a lot of time when there is a lot of self-contributation and a large amount of self-contributation after that period, and the appearance of self-contributation remains.

D) Nonindicted 3’s behavior from February 2012 to around the charge

(1) Preparation of a large volume of writing that criticizes the male market, etc. on the bulletin board of "Seonam-si"

From February 22, 2012 to August 11, 2012, Non-Indicted 3 published a total of 156 comments on the bulletin board of "Seonam City". At the same time, Non-Indicted 3 continued to repeatedly and repeatedly posted a demand for criticism on the gender south market, criticism and criticism on personnel affairs, budget, projects being promoted in the gender south city, etc. in the sex south city, complaint and criticism of public officials who have conflict with themselves, employees of affiliated agencies, and employees of the defendant and employees of the Sungnam city, and suspicions against public officials belonging to the defendant and the Sungnam city. In the majority of this article, Non-Indicted 3 attached a statement that his office had been subject to intimidation one year’s telephone, and if there is intimidation, it was a responsibility to the Mayor of Sungnam City.

(2) abusive language, abusive language, abusive language, abusive language, intimidation, etc. for public officials, executives and employees of Seongbuk-si affiliated agencies, citizens, etc.

(A) Contents in the certificates, statements, etc.

공소외 3은 민원팀장 공소외 56을 상대로 공소외 57(공소외 3이 성남시 홈페이지 게시판에 비방글을 게시한 분당을 국회의원 예비후보자)과 관련하여 민원팀장의 말을 듣고 글을 삭제하였는데 그 사람이 고발한 이유를 묻고 공소외 57에게 연락하여 본인에게 고소를 취하도록 요구하고, 그렇지 않으면 재미없을 것이라고 말하고, ‘왜 삭제하라고 말하고 고소를 취하토록 하지 않느냐’, ‘이새끼 너 죽을래’ 하면서 ‘나한테 한번 혼나봐야 되겠다’는 욕설을 하였으며, ‘민원여권과장과 민원팀장 공소외 56은 나한테 죽을 각오를 하라’는 말도 하였다. 공소외 3은 민원여권과장 공소외 58을 상대로 ‘민원여권과에서 공소외 57한테 연락해서 고발 취하하라 해라. 그렇지 않으면 가만히 있지 않겠다’는 말을 하였다. 공소외 3은 민원여권과 공소외 59를 상대로 ‘야 공소외 59가 너 죽고 싶어? ○○년 ○○년’ 등의 ‘죽고 싶어’와 몇 번의 욕설을 반복적으로 하였다. 공소외 3은 공보관실 공소외 60을 상대로 ‘성남시에 바란다’ 답변과 관련한 전화통화에서 ‘당신 간첩이야, 권력의 하수인이야’ 등 황당한 이야기를 하고, 통화자의 이름을 부르면서 안기부에 고발한다고 협박하고, 혼잣말을 중얼거리는 등의 행위를 하였다. 공소외 3은 행정지원과 공소외 61을 상대로 전화를 수차례 하였는데 그 내용의 대부분은 특정인에 대한 비난, 또는 그 내용을 시장에게 전하라는 것으로 ‘집구석에 찾아가서 다리 몽달이를 분질러 놓겠다고 전해라, 가만두지 않겠다고 전해라, 이런식으로 하면 인생을 망칠 것이다, 다음 시장 바뀔 것이다, 놀고 앉아 있다, 문자 보내도 씹는다’는 등의 이야기를 하였고, 공소외 62 비서관을 일방적으로 바꿔달라면서 비서관에 대한 욕설 통화를 하였고, 공소외 3의 전화를 끊은 것에 대한 항의를 하면서 직무유기로 고소하느니, 손해배상을 청구하겠다고 하기도 하고, ‘기다리라고 이름을 올려주겠다’는 등의 말을 하였다. 공소외 3은 행정지원과 공소외 62를 상대로 국회의원 선거에 개입시 성남시장을 시장 퇴출시키겠다는 협박성 발언, 산하기관 인사, 판교 철거민, 공소외 63 시의원과의 다툼, 개인 신상 문제를 거론하면서 1주일을 줄 테니 공소외 7 비서실장이 연락줄 것을 요구하고, 연락이 없을 경우 성남시 홈페이지 게재 및 언론에 보도하겠다는 협박성 발언, 성남시장에게 내용을 전달하지 않을 시 직무유기로 고발하겠다는 말을 하였고, 공소외 64 이사장이 자신에게 반말을 했는데 시장이 지시했냐면서 욕설, 폭언, 협박 등으로 정상적인 민원업무를 볼 수 없을 정도였고, 시정 여론조사를 실시해서 시민만족도 50% 미만시 시장 퇴출, 50% 이상시 사과하겠다는 이야기, 선거 미개입 요구, 공소외 49, 공소외 65, 공소외 66을 자를 것을 요구하는 등의 말을 하였다. 공소외 3은 행정지원과 공소외 67을 상대로 피고인, 공소외 7, 공소외 68 성남문화재단 대표, 공소외 65 성남시시설관리공단기획본부장에 대하여 정상인으로서는 차마 입에 담을 수 없는 비인격적이고 무차별적인 욕설, 폭언 등 언어 폭력을 행사하였다. 공소외 3은 행정지원과 공소외 69를 상대로 통화 시작부터 ‘공소외 68 알아? 공소외 68 ○새끼는 어떻게 공무원을 한거야’, ‘피고인 ○새끼’, ‘공소외 7 비서실장 그 ○새끼는 도대체 뭐하는 놈이야’ 등의 공무원 전체를 비하하고 욕설을 하였고, 공소외 69에게는 ‘공소외 69씨 탄천에서 쓰레기 줍게 해줄까’, ‘전 공소외 70시장 인수위에 내가 있었는데 다음번 정권에 내가 인수위에 들어가서 공소외 69씨 탄천으로 보내겠다’ 등의 협박성 민원전화를 하는 등 20분간 언어폭력에 시달리게 했다. 공소외 3은 자치행정과 공소외 71을 상대로 ‘민간협력팀장 공소외 71 왜 거짓말을 하느냐 ○○년, ○○년, ○같은 년 죽어버리겠다라고 당장 쫓아가서 귀싸대기를 때리겠다’는 등 심한 욕설을 하였고 ‘너는 거짓말을 했으니 경찰서에 고발하겠다, 경찰에서 보자’는 등 상식밖의 말을 하였다. 공소외 3은 자치행정과 공소외 72를 상대로 ‘성남시에 바란다‘에 기재된 글에 관하여 ’공소외 73 자치행정과장이 답변 못하게 했냐? 개새끼, 죽여버리겠다. 내가 인수위 시절 공소외 73 과장은 무슨 팀장이었나? 이름 다 적어놨다. 나중에 시장 바뀌면 탄천 청소나 해라‘ 등의 말을 하였다. 공소외 3은 예산법무과 공소외 74를 상대로 ‘잘못한게 없고 다 잘했다는 거냐. 어느어느 과장들은 다 죄송하다는데, 너는 뭐가 그렇게 잘나서 그렇게 도도하냐며 언론에 이름을 내주겠노라, 감사실에다가 이야기하겠다’는 이야기를 했고, 잠시 후 다시 전화를 해서 1시간이 넘는 시간 동안 공소외 65, 피고인의 측근에 대한 불만의 내용을 이야기하였다.

(b) Other matters described in the current status of visit and telephone response.

Nonindicted 3, Nonindicted 3, Nonindicted 4, Nonindicted 7, and Nonindicted 3, Nonindicted 7, and Nonindicted 3, were to change Nonindicted 8’s telephone call to Nonindicted 3. Nonindicted 7, and were to take a look at Nonindicted 3’s seat to Nonindicted 8’s public health clinic, and then, Nonindicted 3, 7, Nonindicted 7, and 8, who were to take a look at Nonindicted 3’s seat to Nonindicted 8’s seat and to make Nonindicted 3’s seat and to make Nonindicted 8’s seat and address Nonindicted 8’s seat. Nonindicted 3’s seat and address Nonindicted 8’s seat and address Nonindicted 7, and to make Nonindicted 3’s seat and address Nonindicted 8’s seat and address Nonindicted 3’s seat and to make Nonindicted 3’s seat and address Nonindicted 7, and to make Nonindicted 3’s face-to-face talk to the public health clinic, and to make Nonindicted 3’s face-to-face talk, i.e., to the public health clinic.

(c) the content recorded in other evidence;

공소외 3은 성남시시설관리공단 공소외 65 본부장과 통화하면서 왜 회계사님이라 안 부르고 공소외 3씨라 부르냐며 육두문자를 퍼붓고 일방적으로 전화를 끊었다. 공소외 3은 공소외 7 비서실장에게 문자를 보내 시설관리공단 공소외 65의 고소 건에 대해 취하를 하지 않으면 피고인 구속시키고, 집에 가서 다리 몽뎅이를 뿐질러 버리겠다. 국가정보원 압수수색도 각오하라는 등 위협하였다. 공소외 3은 성남시가 한국매니페스토운동본부로부터 최우수등급을 받은 것에 대해, ‘돈 주고 샀다’고 비난하였다. 공소외 3은 성남시에 바란다 게시판에 피고인을 비난하는 글을 올리는 공소외 3에게 시민으로서 충고를 하는 내용의 글을 올린 시민 공소외 85에게 2차례 통화 과정에서 “야 이 씨발 새끼야! 시민이면 나도 올려, 이 새끼야! 신경 꺼라 이 씹새끼야! 내가 니 좆이야, 이 새끼야!? 이 건방진 새끼 죽고 싶어서 죽고 싶어, 이 새끼야!? 너 뭐하는 놈이야!? 이 새끼 뒤질라고 좋게 얘기했더니 건방지게 어디에다 글을 올려? 다 지워, 이새끼야!‘ 등의 욕설을 하였다. 공소외 3은 성남시 감사관 공소외 84가 사는 마을로 찾아가 ‘공소외 84 개새끼’, ‘꽃뱀’, ‘도둑놈’ 등의 소리를 질러대었다. 공소외 3은 공소외 86 성남시 의회 의장에게 공소외 87 말고 아무나 의장으로 선출해주면 그 사람을 차기 시의장으로 만들어주겠다는 이야기를 하였다. 공소외 3은 경남 고성군에서 어린이들을 오른쪽으로 줄을 세우지 않고 3줄로 걸어다니게 해서 가는 길을 방해했다는 이유로 인솔교사에게 ‘교장을 정리할 테니까 대요! 학교 이름 대요!’, ‘청소년 수련관 관장 오라고 그래!’, ‘내 일당 50만 원 하는 사람이야.’, ‘학교 이름 어디에요? 내가 교육청에 올리게! 인터넷에 올리게 대세요. 여기가 말이죠, 6천만 년 전의 공룡 쥬라식 파크에 사는 거에요’, ‘경상남도 도지사는 그 따위로 교육시키냐고!?, 도지사 이름 뭐에요? 도지사 이름 알아요? 대세요. 관장 이름 뭐에요? 내 당장 쫓아 올라갑니다.’, ‘관장 사표 쓰게 해드릴게 내가, 경남도지사한테 얘기 해가지고. 내 청와대 갈까요? 한 번도 안 빌었어요, 나한테?’, ‘아저씨 아니에요! 회계사라고 했어요!’ 등의 말을 하고, 수련원장에게 ‘원장님! 나는 회계사님이라고’, ‘당신 말이야 고성군수실로 와!’, ‘이리 와! 철창으로 와! 경찰서로 와!’, ‘경찰서 와!, 술 한 잔을 먹었으면 당신 구속이야! 빨리 와. 따라오라고’, ‘고성군수실로 따라와! 당장 따라와 내 차 타고. 고성군수실 금방 가. 이거 개판이구만 이 동네? 원장이 나보고 당신이라고 그랬어? 당신 깡패지?’ 등의 말을 하였다. 공소외 3은 경기 성남시 중원구 여수동에 있는 성남시청 시의회 청사 4층 세미나실에서 새누리당 시의원 공소외 88 등 17명이 시의회 의장선출을 위한 임시총회를 열고 있다는 사실을 알고, “일요일에 새누리당 성남시 의회의장 후보를 선출하는 것은 불법이다. 피고인 시장이 나를 정신병자로 취급하고 있는데 왜 아무런 조치를 취하지 않느냐.”라고 하면서 성남시의회 청사에 침입하였다. 공소외 3은 성남시의회 청사 침입 건으로 체포되면서 ‘나는 경찰청에 갈 사람이지 지구대나 갈 사람이 아니다. 내가 피고인 시장의 친형이다’라고 말하였다. 공소외 3은 농협은행 지점장에게 찾아가 ‘지금 화장실 왜 문 잠갔죠? 8시 넘어서? 8시 넘어서 문 잠갔다고. 그 계약서 가져와요. 임대차계약서에 8시 넘으면 문 잠그는지 갖고 오라고. 화장실 문 잠갔다고 화장실에 와보세요!’, ‘피고인이 전화 왔잖아’, ‘당신이 피고인한테 했잖아!’, ‘당신 사표 써!’, ’꺼져 너 죽을 줄 알아!‘, ’야, 부지점장 웃었어 너? 잘라버릴 거야 너‘, ’계약서 있어, 없어? 화장실 못 쓰는 계약서 대요. 안하면 당신 죽을 줄 알아 화장실‘, ’야 이 개새끼야 미친놈이라고 했지 너?‘, ’피고인이랑 공범이야‘ 등의 말을 하였다. 공소외 3은 □□백화점에 찾아가 매대를 차고 소리를 지르며 영업방해를 하고, 직원과 행인들에게 욕설 폭언을 하며 소란을 피운 적이 있고 ‘피고인 시장 친형인데 불만 있냐’, ‘이 개새끼 성남시장이잖아’, ‘당신 □□야? 당신 □□ 이름 뭐야? 이 놈의 공소외 89이! □□ 공소외 90 오라고 해! 공소외 90 오라고 해!’, ‘분당구청으로 와!, 분당구청으로 와. 내가 너희들 아작 내줄게’, ‘형님! 저 좀 도와주십쇼. □□백화점 놈들이 저를 쫓아오고 있습니다. 아작을 좀 내주세요. 저 분당구청으로 들어갑니다. 빨리 오세요. 만사... 분당구청장실 들어가요 □□백화점 애들 내가 폭행... 폭행 했다고 쫓아오고 있어요’, ‘공소외 90 고소해. 그 씹새끼 고소해 오라 그래. 공소외 90은 씹새끼다, 공소외 90은 일본놈이다. 공소외 90은 세컨드 있다 꼽냐 공소외 90은 □□□□다 웃었지 공소외 90은 또라이다 공소외 90은 □□ 또라이다 내가 불러주지 공소외 84가 불러줄게’ 등의 폭언 욕설을 하였다.

(3) Abuse of abusive language, abusive language, intimidation, threat, etc. against the defendant and his relatives

(A) On May 28, 2012, Nonindicted 3 found Nonindicted 5, who was gathered on May 28, 2012, called “Nonindicted 31 Nonindicted 31, who was a partner, called “to leave the house and church to the head of the public health clinic,” and then, in the process of telephone conversations with the Defendant, Nonindicted 3 called “to leave the house and church to the house and church.” In short, Nonindicted 3 told Nonindicted 3 of the “to die by sending the head of the public health clinic.” On the inside, Nonindicted 3 made a speech, etc., whether the mother was her mother, who was her mother, and her mother was her, who was aware of the money.”

(B) around June 2012, Nonindicted 3: (a) her mother Nonindicted 5 (“Nonindicted 5”) stated that Nonindicted 5 had his occupation but her mother her mother. In fact, she must have his father believe her religion. (b) her father her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother. (b) her mother her mother her mother her mother her mother her mother her mother her to her mother her to her mother her to her mother her to her. (c) her mother her mother her to her mother her mother her to her mother her, and her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her mother her he her.

(C) On June 5, 2012, Non-Indicted 3, on the Defendant, on the following grounds: “A person who is detained by the head of a aquatic patrol box,” “A person who does not carry the scam?” “A person who is detained by the police box,” “A person who is arrested by the police box,” “A person who is arrested by the police box,” “bring this scam? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? the head of the police box box ? ? ? ? ? ? 1 billion.00 million, ? ? ? ? ? ? ? ? ? this ? ? ? ? ? this ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? the head of the public health clinic ?. ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?.............................................................

(D) On June 5, 2012, Non-Indicted 3 entered the phone with Non-Indicted 50 on the phone with Non-Indicted 50, it is necessary to see that she died in her face. It is necessary to see that she will be the head of a public health clinic. she will be able to appear in the hospital if she only she is a doctor in charge of franchising, she is able to appear in the hospital, she was recommended by a personnel administration agency, and she is her head of a team or lower level. she also recommended her name as she can have legal terms and conditions, she was her recommendation, she was sat. Do, she was 13 people, and she was sat. Do, so how she was sat? she was sat? she was satch? she was satn? Do, she was satn't she was sat?

(E) On June 5, 2012, Non-Indicted 3 consulted with Non-Indicted 50 along with Non-Indicted 11 on June 5, 2012, and (i) Non-Indicted 3 (related to money) “I wish to do so in a consistent manner,” “I wish to do so in a knife knife knife,” “I wish to do so,” “I want to completely do so,” “I wish to do so,” “I do you do you do you do you do see? I want to do so? I can see that I would do so? I would see that I would do so? I would like to grow? I would see that I would like to do so? I would like to see that I would like to do so. I would like to make a strong investment in an apartment house, but we should not make an investment in the U.S. and should not make an investment in it.

(바) 공소외 3은 2012. 6. 5. 피고인과 통화 과정에서 ’그 여자가 나를 꼬시려고 우리 회사에 침입했다고’, ‘뺨 안 맞았어 인마!’, ‘나가라고 밀어냈다니까!’, ‘너 이새끼야. 너 이새끼야, 마이킹 출신이라며? 공소외 91이 알라딘 사장인데 간첩이다. 마이킹 출신이다. 너 있지, 그래서 단일화 했냐? 간첩들하고’, ‘내가 경고했지? 성남에서 요번에 한 100명 정도 간첩단, 청와대 50명 잡아간다’, ‘대검에서 그렇게 나왔다’, ‘성추행으로 해 갖고 돈 받아 갈라 그랬다’, ‘나한테 팬티를 보이고 유방을 보이면서 꼬셨다. 거래처 사장도 꼬셨다. 안 넘어갔지. 그래, 내 복수한 거다, 내한테’, ‘공소외 4가 쫄았더라. 공소외 1이 쫄았더라. 전화 받으니까 딱 끊더라.’ 등의 이야기를 하였다.

(사) 공소외 3은 2012. 7. 15.경 가족들을 비롯하여 여러 사람들에게 “오늘 나를 미쳤다는 사람은 ♥♥♥교회 예배당 앞으로 오시오. 하나님이 증명하리라. 지금 당장 ♥♥♥교회 쳐들어갑니다. 목사 알아서 하세요”라는 문자메시지를 전송하였고, 교회에 경찰이 출동하는 등의 상황이 벌어진 일이 있다.

(h) On July 15, 2012, Nonindicted 3 demanded that Nonindicted 14, an infant, who was the mother of Nonindicted 5, posted an article on the Internet to the effect that “the mother would fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright to fright upon fright to fright to fright to fright to fright to fright to fright to fright to fright.”

(4) A dispute with Nonindicted 31

On May 19, 2012, Nonindicted 3 made a telephone call to Nonindicted 31, Nonindicted 31, Nonindicted 31, Nonindicted 2, Nonindicted 3, Nonindicted 2, Nonindicted 3, and Nonindicted 31, Nonindicted 31, and Nonindicted 31, and she should do so regardless of how they want to do so? she should do so? Nonindicted 31? This she want to see Nonindicted 92? This she would she start to her father? Nonindicted 3, Nonindicted 3, Nonindicted 9, Nonindicted 2, Nonindicted 3, Nonindicted 3, Nonindicted 4, Nonindicted 4, Nonindicted 4, Nonindicted 4, and Nonindicted 4, Nonindicted 4, Nonindicted 4, Nonindicted 4, Nonindicted 4, and Nonindicted 4, Nonindicted 4, Nonindicted 5, and Nonindicted 1, Nonindicted 4, Nonindicted 5, and Nonindicted 3, Nonindicted 1, 5, Nonindicted 5, and Nonindicted 1, Nonindicted 4, Nonindicted 4, 5, and Nonindicted 3, 5, Nonindicted 1, Nonindicted 1.

2) Circumstances following the facts charged

A) The process leading to the diagnosis of depression

공소외 3은 2013. 2. 20. ◇◇한의원을 방문하여 건망, 불안, 초조, 불면, 신경쇠약 등 심신의 안정을 위해 흔히 사용하는 처방인 온담탕, 귀비탕 관련 처방을 받았다. 그 후 2013. 3. 13. ☆☆☆☆☆ 정신건강의학과 의원에서 우울증 진단을 받았다.

B) Nonindicted 3’s traffic accident

On March 16, 2013, 2013, 3 days after receiving the diagnosis of depression, Nonindicted 3, along with Nonindicted 11, talked with Nonindicted 11, and talked with Nonindicted 11 that she would die by telephone after the dispute with Nonindicted 11. After that, Nonindicted 3, in the course of driving, caused a traffic accident that intrudes with the central line and causes a collision with the truck, resulting in a heavy injury, such as cutting down the bridge.

C) Hospitalization in the National Late Hospital

공소외 3은 2014. 10. 29. ☆☆☆☆☆ 정신건강의학과 의원에서 상세불명의 우울에피소드 진단을 받고, 2014. 10. 31.부터 2014. 11. 5.까지 가족과 함께 한 터키여행에서 가족들과 싸워서 공소외 11 등은 따로 귀국하였는데, 공소외 3은 2014. 11. 18. 치아가 여러 군데 뽑히고 여기저기 다친 모습으로 나타났다. 그 후 공소외 11은 2014. 11. 21. 공소외 3을 국립▽▽병원에 보호의무자에 의한 입원 절차로 의사에 반하여 입원시켰다.

D) Circumstances revealed in the medical records, etc. against Nonindicted 3

(1) The medical records of the National ▽▽△ Hospital were diagnosed in February 2013, “the same shall apply to a person who was diagnosed with the balance of revenues and expenditures.” The words “I would like to kill and die”, “I tried suicide on March 16, 2013,” and “I would like to repeat their entry into and departure from the military with an anti-scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic s,”.

(2) The written opinion on February 9, 2015 by Non-Indicted 17 of the department of mental health in the National ▽△△ Hospital stated that “Non-Indicted 3 began with symptoms, such as excessive behavior, over-the-counter, and the reduction of the degree of sleep, and the decrease of the degree of sleep, and the symptoms repeated and the symptoms repeated in 2014.”

(3) On August 17, 2017, Nonindicted 18-2, Nonindicted 3 of the department of mental health at the university, knife hospital, indicated that “Nonindicted 3 committed violence at the family conference place since 2012 and took aggressive action against the department store staff members” in the response to the cooperation with Nonindicted 3 on August 17, 2017.

(4) 그 외에 ♣♣대학교병원 2015. 3. 10.자 자료에 의하면 ‘2007년에 집짓고 이사 가서 무리해서 투자한 돈이 안 들어오고 해서 물질적으로 어려워서 죽고 싶다고 한 적은 있다‘, ’2012년 11월부터 2013년 2월까지는 많이 우울했다‘, ’3월 6일날 죽겠다고 차로 사고‘ 등의 내용이, ♧♧♧♧♧♧♧♧병원의 2016. 3. 28. 자료에는 ’내원 약 4년 전 환자의 동생이 고위공무원에 선출되면서 집안 내 가족 간의 갈등이 발생하였음. 환자는 이 무렵 동생을 비롯한 누이들의 태도에 크게 상심하여 우울감이 발생하였다’, ‘내원 약 3년 전 환자는 자가용 운전 도중 중앙차선을 가로질러 맞은편에 오던 5톤 트럭과 의도적으로 충돌하는 자살시도를 하였음’ 등의 내용이 기재되어 있다.

3) Circumstances relating to efforts to encourage the treatment of the family history and the father and children of the non-indicted 3.

A) Of the Defendant’s relatives, there was Nonindicted 14 and Nonindicted 15’s husband Nonindicted 19 weeks 5 at the time, etc., the Defendant and the Defendant’s relatives were aware of the symptoms and characteristics of the depression. Nonindicted 14 stated with Nonindicted 94 in his own state state, and that Nonindicted 14 would be able to promptly treat the same because he was the same from Nonindicted 94.

B) Nonindicted 5 reported Nonindicted 3’s act and solicited Nonindicted 11 to provide a mental health care, but Nonindicted 11 refused to provide medical treatment to the effect that there is no error in the content. In light of the discussions of Nonindicted 5, Nonindicted 15, Nonindicted 47, Nonindicted 14, and Nonindicted 50 except the Defendant, and the written request for mental appraisal made in the name of Nonindicted 5 on April 10, 2012, Nonindicted 5 received the written request for mental health care in the name of Nonindicted 5, Nonindicted 15, Nonindicted 47, and Nonindicted 14, respectively.

C) On June 2012, Non-Indicted 5 and their families were seeking counseling at the former Mental Health Center in order to find out, but the application for diagnosis and protection was rejected, and thereafter, they were filing a petition to the police to seek access prohibition under the Act on Special Cases Concerning the Punishment, etc. of Crimes of Domestic Violence and seeking medical treatment entrustment to a medical institution. However, the treatment entrustment disposition did not proceed.

D) After that, Nonindicted 5 asked Nonindicted 3 to the effect that Nonindicted 3 would receive and receive medical treatment in a criminal case in the course of telephone conversations with Nonindicted 3.

4) Evaluation of the Defendant’s procedural progress under Article 25 of the former Mental Health Act with respect to Nonindicted 3

A) In around 2005, the prosecutor argued that the relationship between the defendant and the non-indicted 3 was far away due to the dispute that Non-indicted 3 lent KRW 50 million from Non-indicted 5 to his mother. In 2010, Non-indicted 3 posted a criticism on the Defendant’s operation on the bulletin board of the Seongbuk-si website and made a press report, etc. In 2012, the defendant’s position was difficult. In 2012, Non-indicted 3 expressed a large number of comments criticizes the Defendant’s market qualification on the bulletin board of the Sungnam-si website, “I think that the Sungnam city is qualified for the Sungnam market? I think that the Sungnam City is qualified for the Sungnam-si market?” Non-indicted 3 repeatedly posted a civil petition by visiting or speaking at the time of Sungnam-si, and repeatedly corrected the civil petition by using Non-indicted 3’s public health clinic’s instruction and supervision on the ground that the operation interfered with Non-indicted 3’s operation.

B) However, as seen earlier, the following circumstances are acknowledged by the record as follows: (i) Nonindicted 3 is aware of the circumstances before and after the facts charged; (ii) the relationship between the Defendant and Nonindicted 3; and (iii) the Defendant knows that Nonindicted 3 has recovered from a mental disease even during the Defendant’s punishment; and (iii) Nonindicted 3 has a family ability to suffer from a mental disease; and (iv) it is unreasonable or unreasonable to determine that Nonindicted 3 is in need of medical treatment from the Defendant’s standpoint when repeated violent speech and behavior; (ii) the volume of violence committed by Nonindicted 3 was widened by not only the persons in a close relationship, such as family members, but also the level of display is gradually strengthened; and (iv) the need to obtain or suspect a large number of mental health questions with respect to Nonindicted 2 or 3’s request; and (v) the need to obtain or suspect evidence of mental illness by taking account of the need to do so.

In other words, as seen earlier from February 22, 2012, the Defendant continued to operate the Defendant on the Sungnam City website, etc., as seen earlier, and continuously criticizes or criticizes the Defendant on the corrective operation of the Defendant, market qualification, operation of public institutions belonging to Sungnam city or Sungnam city, personnel management, public officials belonging to Sungnam city and its officers and employees, etc., and continuously calls to the public officials belonging to Sungnam city or its employees and employees, and calls to the public officials belonging to Sungnam city or its officers and employees, and makes an unreasonable demand for, verbal abuse, and abusive language, and take a bath for posting the comments while moving to the Sungnam City market room, and avoid disturbance. Furthermore, it is difficult to view that such behavior was caused by the mental symptoms such as Nonindicted 3’s depression, and even if the public officials belonging to the Defendant have repeatedly resisted their operational difficulties and difficulties, it is difficult to view the Defendant’s mental health diagnosis and treatment to have his own mental health diagnosis and treatment to the extent possible by being recommended by Nonindicted 3 and his family members within the scope of his authority.

Therefore, the Defendant, in the form of receiving a written statement, etc. on the case of damage to public officials under his jurisdiction via Nonindicted 7, collected the case of damage caused by verbal abuse, abusive language, or unreasonable demand, etc. by Nonindicted 3 to the public officials under his jurisdiction, and Nonindicted 3 took notes, etc. posted on the bulletin board, and then had Nonindicted 1, the head of the Gu branch public health clinic, deliver them to Nonindicted 1, who is the head of the Gu branch public health clinic, confirm the possibility of diagnosis and hospitalization in accordance with the procedure under Article 25 of the former Mental Health Act.

In addition, the application for diagnosis and protection of Article 25 of the former Mental Health Act itself is difficult to evaluate that supporting the discovery of a person suspected of having a mental disorder is illegal or unfair, by confirming the inherent role of a psychiatrist or a mental health specialist, by an administrative agency, or by collecting cases of damage and data, and by seeking cooperation in the process.

Of course, Nonindicted 3 does not accurately understand the person suspected of having a risk of undermining himself/herself or others due to mental illness, and Nonindicted 3’s wife or adult child is rejected with respect to Nonindicted 3’s suspected mental illness. However, the Defendant’s act of taking the hospitalization procedure under Article 25 of the former Mental Health Act against Nonindicted 3 by mobilization of public officials under his/her control is socially controversial and may be subject to some criticism. However, it should not be readily concluded that the Defendant’s act of participating in the procedure constitutes a constituent element of abuse of authority or obstruction of another’s exercise of rights.

However, as seen earlier, hospitalization without a diagnosis by a mental health specialist, in addition to emergency hospitalization, is deemed illegal hospitalization. However, the circumstance that the Defendant determined that the procedure of hospitalization pursuant to Article 25(3) of the former Mental Health Act is possible without face-to-face diagnosis by a mental health specialist is an aspect that even if the execution of hospitalization by Nonindicted 3 under Article 25(3) of the former Mental Health Act itself is illegal, it is difficult to view all other procedures as illegal or unfair. Furthermore, Article 25 of the former Mental Health Act provides that the procedure may commence independently regardless of the existence of the legal guardian, and whether Nonindicted 3 is a person suspected of undermining himself/herself or others, and the head of a local government is interpreted to provide the proviso to discovery of persons subject to a mental health specialist as part of public health administration, and that there is no essential conflict between the Defendant and public health clinic and the Defendant based on Article 25(1) of the former Mental Health Act and Article 25(3) of the former Mental Health Act’s reasoning that the procedure of face-to-face examination and treatment is unlawful.

F. As to the revision of Non-Indicted 2’s assessment report by a mental health medical specialist

1) Whether a request for advice falls under the territory of the Defendant’s general authority

According to Article 3 subparag. 10 of the former Ordinance on the Establishment and Operation of Mental Health Centers in Seongbuk-si (wholly amended by Ordinance No. 3149, Nov. 20, 2017), the advisory service is one of the duties of the Seongbuk-si Mental Health Center, and according to Article 5, the trustee of the Seongbuk-si Mental Health Center is under the direct direction and supervision of the market. In addition, although a person who seeks advice is the defendant's friendship and is requesting an assessment under the name of family opinion in appearance, it cannot be deemed that a public official requests an assessment of the acts of Nonindicted 3, which were conducted by verbal abuse, etc. to collect and discuss the countermeasures against the public official, and it cannot be deemed that the request for an assessment of the acts of the public official is an individual request irrelevant to the public official duties. Accordingly, it can be deemed that the exercise of authority on the part of the defendant's general authority.

2) Whether it constitutes an abuse of official authority

The advisory procedure is the procedure for hearing opinions from the relevant professional, etc., and it is possible to present opinions on the contents and direction of the advisory procedure or to ask or confirm the matters requiring supplementation with respect to the advisory opinion already made in that process. Meanwhile, the advisory duty is to seek a judgment based on the medical knowledge of Nonindicted 2, and it falls under the area within the independent scope of authority of Nonindicted 2, and thus, it is difficult to deem that the Defendant’s request has reached the abuse of authority, unless it is assessed to have neglected medical judgments beyond such independent scope of authority.

In addition, Nonindicted Party 1 did not mean that it should be resolved as it is while delivering the Defendant’s request for revision to Nonindicted Party 2. In fact, Nonindicted Party 2 did not state the revised opinions requested by the Defendant, but rather state general matters on the seriousness of illness, necessity of hospitalization, etc. which had not been stated in the previous evaluation text, and thus, it can be deemed that the Defendant presented his opinion. It is difficult to view that the Defendant urged or instructed Nonindicted Party 2 to state a specific content that did not comply with his medical judgment.

Therefore, the Defendant’s ex officio exercise of this part of the previous advisory opinion does not indicate the seriousness of Byung and the necessity of hospitalization, and it is difficult to view it as an unlawful or unreasonable exercise of official authority. Considering the scope of work of the center as seen earlier, it is difficult to deem that the Defendant’s request for the official seal, etc. on the relevant document itself constitutes an unlawful or unreasonable exercise of official authority.

3) Part of the request made to Nonindicted 1 for delivery to Nonindicted 2

The act of allowing Nonindicted 1 to deliver the revised statement of evaluation written by Nonindicted 2 or a request for the official seal affixed thereon is merely a fact-finding that assists in the exercise of official authority intended to deliver the Defendant’s opinion regarding the advisory act. The mere delivery of the request by Nonindicted 2 cannot be deemed as an act of abuse of official authority. Furthermore, as seen earlier, the act of delivering the revised statement to Nonindicted 2 cannot be deemed as an act of abuse of official authority, unless seeking advice by presenting the revised opinion to Nonindicted 2 cannot be deemed as an act of abuse of official authority.

G. Regarding Nonindicted 5’s request and delivery of the result of the interview, and Nonindicted 3’s request for diagnosis and protection

1) According to the records of this case as to the request and delivery of the result of the interview with Nonindicted 5, it is difficult to deem that Nonindicted 5’s request from the Center for Nonindicted 5 to send the result of the interview with Nonindicted 5 to the Center after Nonindicted 4 had an interview with Nonindicted 5 with Nonindicted 3 at the Center. It is reasonable to deem that there was a circumstance to deem that Nonindicted 5’s request was about confirming the result of the interview with Nonindicted 5 as part of the collection of data to determine the direction for Nonindicted 3, who was pending issues at the time, and that the performance of the interview with Nonindicted 3 was difficult to send the pertinent data at will without the official document. In light of the fact that Nonindicted 2’s request was made, it is difficult to deem

2) According to the records of this case, in relation to the request for diagnosis and protection against Nonindicted 3, the medical examination and the demand for protection made at the subcommittee public health center of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the non-indicted 2, the non-indicted 2 and the non-indicted 4, who urged the non-indicted 2 to give a reply to the request, appears to have been consulted in advance in the form of a public inquiry.

H. Regarding the application for diagnosis and protection against Nonindicted 3

1) Whether there exists a causal relationship

According to the evidence duly adopted and examined by this court, as shown in the facts charged, the defendant found the branch of the Seoul National Health Center directly entrusted to the Center after replacing the head of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health center from Nonindicted 1 to Nonindicted 4, and asked Nonindicted 24, who is a mental health specialist, about the countermeasures against Nonindicted 3’s response. The defendant called the head of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the hospital, and sought cooperation in Nonindicted 3’s hospitalization. The chief of the non-indicted 7 also sought advice on whether the non-indicted 3 could be forced to be hospitalized by the mental health specialist of the branch of the Seoul National Health Center, and the defendant’s mother of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the public health center of the branch of the branch of the branch of the branch of the branch of the public health center.

However, in light of the following circumstances acknowledged by the record, it is difficult to view that there is a causal relationship between the exercise of Defendant’s authority and the examination and protection application conducted by Nonindicted 2 and employees of the Seongbuk-si Mental Health Center.

① On June 20, 2012, Nonindicted Party 2 explicitly rejected the request for diagnosis and protection that was sent to the Sungnam-si Mental Health Center from the branch of the Gu, and there is no data to deem that the Defendant or Nonindicted Party 7 had committed a direct and specific act that forces Nonindicted Party 2 to conduct diagnosis and protection.

② On June 20, 2012, Nonindicted 2 refused to give diagnosis and demand for protection to Nonindicted 3, who was the head of the branch public health center of the Gu branch public health center of the branch public health center of the branch public health center of the branch public health center of the branch public health on June 20, 2012. After that, Nonindicted 2 received the content-certified document under Nonindicted 5, Nonindicted 3 became additionally aware of various violent acts and received an objection from the center as to whether Nonindicted 3 did not take any measures at the center of the Sungnam mental health center. Nonindicted 2 considered it as a circumstance to suspect that Nonindicted 3 was at risk of undermining himself/herself or others, and determined that the commencement of the procedure under Article 25(1) of the former Mental Health Act with Nonindicted 25(1) does not necessarily require a medical specialist to face with the subject of face-to-face medical care, and thus, Nonindicted 2 made a statement to the effect that he/she had the instant application for diagnosis and protection without meeting Nonindicted 3, and there is no reason to suspect that he/she applied for diagnosis and protection.

③ There is no obvious material to deem that there was an ex officio exercise of authority to request Nonindicted 2 to proceed with the procedure different from the determination of the requirements and procedure for the former Mental Health Act before the diagnosis and application for protection.

④ Inasmuch as the Defendant’s mother sent content certification in the name of Nonindicted 5 to Nonindicted 2, or Nonindicted 7 assisted Nonindicted 5 in the course of preparing content certification, it is difficult to deem that the Defendant exercised a direct authority in relation to the examination and protection application against Nonindicted 2. Nonindicted 2 stated that the mother of Nonindicted 3 submitted to the Center was a critical cause for Nonindicted 3’s application for diagnosis and protection.

2) Whether it constitutes abuse of authority or whether Nonindicted 2 committed an act without any obligation

In light of the following circumstances acknowledged by the records of this case, i.e., the examination and protection application is not carried out as the head of the Sungnam City Health Center, but is an act of being carried out on the basis of the independent status of the mental health specialist, which is given by the law, and even if Nonindicted 2 is in a position to follow the direction of the Sungnam City Health Center in the position of the head of the Sungnam City Health Center, it is only an act of regional public health administration, and the examination and protection application constitutes an inherent authority distinct from this, and as seen earlier, it is not necessarily necessary to face face-to-face examination and protection application, and there is no material to deem that the defendant or Nonindicted 7 instructed Nonindicted 2 that he would proceed to the examination and protection application without face-to-face examination and protection application, even if there was an act of having the appearance of the ex officio exercise against Nonindicted 2, it cannot be deemed that the contents of the ex officio exercise constitutes abuse of authority, regardless of the medical judgment of Nonindicted 2, to the extent of demanding the application for diagnosis and protection.

Even if it is not so, as seen earlier, the phrase “an act that does not have any obligation in the crime of abuse of authority” means “an act that does not have any obligation as an individual’s internal area or psychological aspect,” and does not mean an act that does not have any obligation as an individual’s internal area or psychological aspect. Thus, even if the Defendant or Nonindicted 7 exercised any influence on Nonindicted 2, who is a mental health specialist under the former Mental Health Act, it cannot be deemed that he violated the freedom of decision-making by Nonindicted 2 and caused him to perform an act that does not have any obligation under the law.

I. As to Nonindicted 3’s attempt to hospitalization under Article 25(3) of the former Mental Health Act

1) Illegality of the execution of hospitalization under Article 25(3) of the former Mental Health Act

According to the evidence duly adopted and examined by this court, the defendant sent a reply stating that the non-indicted 10 of the mental health medical specialist did not directly observe and diagnose Non-indicted 3 at the defendant's request for a face-to-face examination, and that "it is recognized that accurate diagnosis of the symptoms is necessary due to the risk of harm to his/her own or others," under Article 25 (3) of the former Mental Health Act, the court determined that the situation at the time constituted "when the medical specialist of mental health is in danger of harm to a person suspected as a mentally ill person as defined in Article 25 (2) of the former Mental Health Act, and that the defendant demanded Non-indicted 4 et al. to proceed with the hospitalization procedure."

However, as seen earlier, in order to execute hospitalization under Article 25(3) of the former Mental Health Act, a face-to-face diagnosis must be conducted by a psychiatrist who directly observes and evaluates the subject, and Article 25(3) of the former Mental Health Act refers to a follow-up procedure in cases where an actual diagnosis has been conducted pursuant to Article 25(2) of the same Act. Therefore, the execution of hospitalization with Nonindicted 3 constitutes an illegal act as it was intended to execute hospitalization without diagnosis.

2) Whether Nonindicted 4 attempted to be hospitalized under Article 25(3) of the former Mental Health Act

기록에 의하여 인정되는 다음과 같은 사정에 비추어 보면, 공소외 4가 2012. 8. 17.경 차량에 탑승하여 ▷▷경찰서로 이동한 것이 구 정신보건법 제25조 제3항 에 의한 공소외 3의 강제입원을 시도한 행위라는 점이 합리적 의심의 여지 없이 증명되었다고 보기 어렵다. 오히려 당시 공소외 4가 공소외 3을 설득하여 구 정신보건법 제25조 제2항 에 따른 진단이 이루어지게 할 목적으로 ▷▷경찰서로 이동하였다고 보아야 할 사정도 다분하다.

① Nonindicted 4 stated at the police that “the degree of diagnosis is to be recommended”, “Non-Indicted 4 did not have any idea of coercion,” and “ Non-Indicted 3 would have been subjected to a temporary diagnosis if Non-Indicted 3 wished to receive a face-to-face diagnosis,” and the prosecutor made a statement to the effect that Non-Indicted 4 would be forced to undergo a face-to-face diagnosis, and the prosecutor made a statement to the effect that Non-Indicted 4 would be forced to undergo a face-to-face diagnosis, and that Non-Indicted 3 would be forced to undergo the procedure under Article 25(2) of the former Mental Health Act on the ground that the request for a diagnosis by only the document was not complete because it did not face-to-face patient. At the time, Non-Indicted 4 did not intend to be hospitalized by Non-Indicted 3, but did not seem to have committed an act described in this part of the facts charged.

② 공소외 2는 당시 현장에 간 이유에 대하여 공소외 3을 설득하여 진단을 받게 하려고 간다고 알고 있었다고 하여 당시 ▷▷경찰서에 가게 된 최초의 이유가 입원을 시키기 위한 목적이 아니었다고 진술하고 있다. 또한 공소외 2는 오늘 진단이 되면 바로 입원을 시키자는 말을 공소외 4에게 들어서 말도 안 된다는 답변을 하였다고 진술하였는바, 그 진술 자체에 의하더라도 공소외 2가 들은 이야기는 진단을 하게 한 다음에 그 결과에 따라 입원을 시키겠다는 진술이어서 공소외 4가 당시 ▷▷경찰서에 입원을 진행하기 위하여 간 것인지에 대한 의문이 든다.

③ At the time Nonindicted 9 also stated that Nonindicted 3 was aware that he was trying to get a diagnosis.

④ Meanwhile, the official document, which appears to have been prepared at that time, was written by Nonindicted 9, at the time, in response to Nonindicted 4’s instruction, and was written by Nonindicted 4, and the content of the document was written to execute hospitalization. Rather, the document explicitly stated that the vehicle and mental health specialist requested for diagnosis according to the language and text of Article 25(2) of the former Mental Health Act.

⑤ In light of the fact that Nonindicted 4, before this part of the act, Nonindicted 31 moved to the two police assigned for special guard in order to assist Nonindicted 3 in the execution of hospitalization, Nonindicted 4 stated that he rejected Nonindicted 3’s refusal on the ground that it was an illegal act, and that Nonindicted 3 was found at the time that was not requested for such assistance, there is considerable room to deem that Nonindicted 4 moved to the relevant place for other purpose than the execution of hospitalization.

⑥ 당시 외관상 공소외 10의 회신을 구 정신보건법 제25조 제3항 의 요건이 될 수 있는 자료로 보아 공소외 3에 대한 입원의 요건이 갖추어졌다고 판단하였더라도, 실제 입원에 이르는 행위를 하기 위해서는, 같은 법 시행령 제6조 제3항 에 따른 자의입원, 보호의무자에 의한 입원절차를 진행하여야 할 뿐 아니라, 최소한 입원을 진행할 정신의료기관의 물색, 입원조치 의뢰 및 해당 정신의료기관의 승인 등이 있어야 할 것이다. 그런데 기록을 모두 살펴보아도 공소외 4가 당시 입원을 위하여 필요적으로 요구되는 위와 같은 준비행위를 한 상태에서 ▷▷경찰서로 갔다고 볼 만한 증거가 없다.

3) As to the part on which Nonindicted 4, Nonindicted 2, and Nonindicted 9 had Nonindicted 3 go on to the place in which they were located.

Non-Indicted 4’s independent judgment different from that of Non-Indicted 7, thereby satisfying the requirements of diagnosis required under Article 25(2) of the former Mental Health Act. In addition, upon the request of a diagnosis, the measure to enable a psychiatrist to diagnose the subject is an act planned under Article 25(2) of the former Mental Health Act, and even if Non-Indicted 4 had an intention to deliberate on Non-Indicted 3 according to the circumstances when Non-Indicted 3 resisted by his opinion, the act of escort and the exercise of physical power in the process is one of the methods of execution stipulated under Article 25(2) of the former Mental Health Act, so it is difficult to evaluate this part of the act as unlawful or unfair.

4) Determination on the part requested to accompany a vehicle or mental health specialist

The reason why Nonindicted 4 requested the accompanying of the vehicle and mental health specialist is not for the attempt of the execution of hospitalization as seen earlier, but for completing the procedure under Article 25(2) of the former Mental Health Act by having Nonindicted 3 undergo a diagnosis. In light of the status of the Seongbuk-si Mental Health Center in charge of the management of suspected regional mental patients, it is difficult to evaluate that the act constitutes an unlawful or unjust act that abused official authority.

(j) Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced under the main sentence of Article

2. Violation of the Public Official Election Act concerning abuse of authority and obstruction of exercise of rights

A. Summary of the facts charged

around June 2, 2010, the Defendant won the 5th nationwide local election and was in office from July 2010 to June 2014. On June 4, 2014, the Defendant re-listed at the 6th nationwide local election and reappointed from July 2014 to March 2018, and was in office as the Governor of Gyeonggi-do from July 13, 2018.

피고인은 ① 2018. 5. 29.경 KBS 경기도지사 후보자 토론회에 참석하여 다른 후보자 공소외 6의 ‘형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?’라는 질문에 “그런 일 없습니다. 그거는 어머니를 때리고 어머니한테 차마 표현할 수 없는 폭언도 하고, 이상한 행동도 많이 했고, 실제로 정신치료를 받은 적도 있는데 계속 심하게 하기 때문에 어머니, 저희 큰형님, 저희 누님, 저희 형님, 제 여동생, 제 남동생, 여기서 진단을 의뢰했던 겁니다, 그런데 저는 그걸 직접 요청할 수 없는 입장이고, 제 관할 하에 있기 때문에 제가 최종적으로 못하게 했습니다”라고 발언하고, ② 2018. 6. 5.경 MBC 경기도지사 후보자 토론회에 참석하여 “우리 공소외 6 후보께서는 저보고 정신병원에 형님을 입원시키려 주6) 했다 이런 주장을 하고 싶으신 것 같은데 사실이 아닙니다. 정신병원에 입원시킨 것은 형님의 부인 그러니까 제 형수와 조카들이었고, 어머니가 보건소에다가 정신질환이 있는 것 같으니 확인을 해보자라고 해서 진단을 요청한 일이 있습니다. 그 권한은 제가 가지고 있었기 때문에 제가 어머니한테 설득을 해서 이거 정치적으로 너무 시끄러우니 하지 말자 못하게 막아서 결국은 안 됐다는 말씀을 또 드립니다”라고 발언하였다.

However, the fact was that the Defendant attempted to hospitalization Nonindicted 3 at the ○○ Mental Hospital around the end of March 2010. Nonindicted 3 suffered from depression due to the aftermath of the pertinent accident. Nonindicted 11 and Nonindicted 16, who was his/her father, were hospitalized at the △△△ Hospital around November 2014, and was hospitalized at the ○○○ Mental Hospital. Nonindicted 11 and Nonindicted 16 did not think that there was a mental problem at the time of hospitalization. Nonindicted 3 did not appear to have been hospitalized at the ○○○ Mental Hospital, and the Defendant did not appear to have been subject to criminal punishment under Article 25 of the former Mental Health Act because he/she did not appear to have been hospitalized at the ○○○○ Mental Hospital. Nonindicted 11 and Nonindicted 16 had been hospitalized to the public health clinic, etc. over several times from April 8, 2012, and the Defendant did not appear to have been subject to criminal punishment under Article 25 of the former Mental Health Act.

Nevertheless, the defendant published false facts about the defendant's act for the purpose of winning the defendant's success in a true statement that he/she intends to be hospitalized in the Gyeonggi-do debate, etc.

B. Determination on the assertion on the terms of lawsuit

1) Summary of the assertion

This part of the facts charged contains contents that could give a judge an unreasonable prejudice, such as the defendant's personal family history, the defendant's psychological condition, and legal opinion on the law, which are not related to the specification of the facts charged or the facts constituting the elements of the facts charged, and thus, the indictment is null

2) Determination

This part of the facts charged are partly cited in the facts charged of abuse of authority and obstruction of another’s exercise of rights. As seen earlier, it is necessary to cite part of the facts charged of abuse of authority and obstruction of another’s exercise of rights in order to explain that the Defendant’s disclosure is false, and it is also necessary to describe the background, motive, and progress of the act

From this point of view, even if it is somewhat unnecessary or unreasonable to view that there is a clear statement in this part of the facts charged, it does not seem to have reached the degree that it may hinder the judge from understanding the substance of the facts charged by causing a judge’s prejudice.

This part of the defendant and defense counsel are not accepted.

C. Relevant legal principles

"False facts" under Article 250 (1) of the Public Official Election Act means matters inconsistent with the truth, which are sufficient enough to mislead electors to make an accurate judgment on candidates. However, in cases where important matters are consistent with objective facts in light of the overall purport of the published facts, even if they are different from truth or somewhat exaggerated expressions, it cannot be viewed as false (see Supreme Court Decision 2009Do26, Mar. 12, 2009). Whether certain expressions contain false facts or not should be determined based on the overall purport of the expression, objective contents, ordinary meaning of words used, connection method of words, etc., on the basis of the overall increase in the number of electors (see Supreme Court Decision 209Do8947, Feb. 11, 2010; Supreme Court Decision 209Do8947, Feb. 11, 2010; Supreme Court Decision 2009Do8947, Feb. 25, 2010).

In addition, as in the case of other election campaign, a candidate who participates in a joint debate held by a candidate for public office, presents only his/her own opinion or his/her argument consistent with the truth, and uses his/her opinion clearly and accurately in questioning or answering questions of other candidates, so that the elector can clearly grasp the quality, knowledge, and opinion of each candidate. However, unlike a campaign speech unilaterally expressed his/her opinion by preparing materials in advance, it is difficult to say that such expression has limitations due to the nature of a joint debate in which objection, interpellation, and answer are made between the candidates, i.e., interested and continuous, to the extent that the accurate decision of the elector is likely to be excessively distorted, not intentionally distorted the opinions or remarks of other candidates, and thus, it is difficult to interpret the meaning of another candidate’s opinion or statement to the extent that it is reasonably possible to see that it is unreasonable to see that there is an inaccurate or inaccurate opinion that is contrary to the nature of the other candidate’s opinion or statement in the process of making an incorrect inquiry or questioning as long as it has been contrary to the other candidate’s opinion or explanation.

D. Whether the Defendant’s remarks include “no Defendant had attempted to hospitalize Nonindicted 3 at the ○○ Mental Hospital” around the end of 2010.

검사는 공소외 6 후보자의 ‘형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?’라는 질문에 ‘피고인이 2010년 말경에 공소외 48을 통하여 공소외 3을 입원시키려고 하였느냐’는 질문이 포함되어 있음을 전제로 공소를 제기한 것으로 파악된다.

However, the opportunity for Nonindicted 6 to make this part of the statement was intended to confirm the suspicion of Nonindicted 3’s attempt of compulsory hospitalization with respect to Nonindicted 3, which had been between April 2012 and August 2012. The Defendant’s attempt of compulsory hospitalization with respect to Nonindicted 3, who had been in the end of 2010, was only filed by the investigative agency during the investigation of the instant case, and there was no external indication at the time of the debate of the instant case. Nonindicted 6 also stated to the effect that the suspicion of his attempt of hospitalization with respect to Nonindicted 3, who had been in the end of 2010, was not considered at the time of the questioning of the Defendant.

Therefore, it is clear that the questioning by Nonindicted 6 was not related to the fact that occurred in 2010, and the Defendant cannot be deemed to have understood that the questioning by Nonindicted 6 was related to the fact that occurred before 2012. Therefore, it cannot be deemed that the Defendant was aware that there was an awareness that the Defendant published false facts or published false facts.

E. From April 2012 to August 2012, the Defendant instructed Non-Indicted 3 to proceed with the procedure of hospitalization so that he can be forced to be hospitalized under Article 25 of the former Mental Health Act, whether the Defendant’s speaking to the effect that it was false to publish the false information.

1) Facts of premise

According to the evidence duly adopted and examined by the court of first instance, it is difficult for Nonindicted Party 3 to find out the following facts: (a) Nonindicted Party 4’s request for hospitalization to Nonindicted Party 5, and Nonindicted Party 3’s request to the Seoul High School Health Center for the treatment of his own mental disease; and (b) Nonindicted Party 4’s request to the Seoul High School Hospital for the treatment of Non-Indicted Party 5; and (c) Nonindicted Party 3’s request to inform Non-Indicted Party 3 of the legal and administrative review as to whether hospitalization could be conducted at the hospital; and (d) Nonindicted Party 4’s request to the Seoul High School Hospital for the treatment of Non-Indicted Party 5; and (d) Nonindicted Party 3’s request to the Seoul High School Health Act for the treatment of Non-Indicted Party 4; and (e) Nonindicted Party 3’s request to the Seoul High School Health Center for the treatment of Non-Indicted Party 4’s mental disease; and (e) Nonindicted Party 3’s request to provide a warning to the Seoul High School Center.

2) The impression that the Defendant’s statement gives to the right of retention

Since the above acts of the Defendant constitute the act of having the intention and purpose to hospitalization Nonindicted 3, the Defendant, at least if the legal requirements are met, has the intention to exercise discretion on hospitalization under Article 25(3) of the former Mental Health Act, and ordered the procedural progress under Article 25 of the former Mental Health Act with the intention to admit Nonindicted 3 as a market.

위와 같은 사실관계에다가 다음과 같은 사정들, 즉 토론 방송을 보는 선거인의 입장에서는 피고인이 시장의 권한을 이용하여 친형인 공소외 3을 정신병원에 입원시키려는 행위를 하였는지에 관한 사실관계 여부를 확인하여 피고인이 경기도지사가 되기 위한 자질, 도덕성 등을 갖추었는지에 관한 판단을 하려는 것이 주요 관심사이었을 것으로 보이는 점, 피고인의 친형 정신병원 입원 시도 행위가 법령에 따른 정당한 행위인지 여부는 사실관계가 먼저 규명된 다음에 2차적으로 후보자 선택의 판단에 영향을 미칠 요소라고 볼 수 있는 점 등을 고려하면, 피고인이 2012년 4월부터 8월까지 분당구보건소장 공소외 1, 공소외 4 등에게 공소외 3을 구 정신보건법 제25조 의 시장 등에 의한 입원 규정에 의하여 강제로 입원시키도록 지시하였고, 분당구보건소장 등이 위법한 일이라고 이행하지 아니하자 수회에 걸쳐 질책하면서 계속하여 입원 절차 진행을 지시하였음에도, 후보자 합동토론회에서 공소외 6의 ‘형님을 정신병원에 입원시키려고 하셨죠? 보건소장 통해서 입원시키려고 하셨죠?’라는 질문에 ‘그런 일 없습니다’고 답변한 것은 이 사건의 실체를 전혀 모르고 있는 유권자에게 마치 피고인(내지 성남시)은 공소외 3의 정신병원 입원 시도와 관련하여 아무런 사실행위를 한 적이 없다는 인상을 심어 주고 그 결과 후보자에 대한 정확한 판단을 그르치게 할 수 있어 그 범위에서 피고인은 자신의 관여 사실을 적극 부인하는 방법으로 허위사실을 공표한 것으로 볼 수 있는 측면도 있다.

3) Whether Defendant’s remarks constitute publication of false facts

However, in light of the following circumstances acknowledged by the record, in particular, the intent of questioning and answering questions, the diversity of remarks, the situation at the time, and the characteristics of joint debates, etc., the Defendant’s answer, such as the statement in the facts charged, is an unclear statement that does not specify the existence of a specific act, and it is difficult to deem that the statement intentionally distorted facts to the extent that it would mislead the elector’s accurate judgment. Therefore, it is insufficient to recognize that the evidence submitted by the prosecutor alone proves that the Defendant published false facts as to the Defendant’s “act” without any reasonable doubt, and there is no other evidence

A) The uncertainty of the specific act extracted through the answer;

The phrase “from or about to be hospitalized” is a connected word indicating the intent or desire to commit a certain act, and the question is whether there was what was what was the intention to hospitalize the Defendant rather than the specific fact that is specified time and spatially. Therefore, barring any other circumstance, the argument that the Defendant would have intended to hospitalize Nonindicted 3 (or whether the Defendant would have attempted to hospitalize Nonindicted 3 through the head of a public health clinic) was affirmed. Unless there were other circumstances, it was denied that the Defendant’s speech was a part of the intent to hospitalize Nonindicted 3, and that the Defendant’s speech was clearly published on the part of the Defendant’s intent to hospitalize Nonindicted 3, and in relation to the specific act, it is merely a statement as to whether there was no matter that can be evaluated as an act with the above intent, and therefore, it is nothing more than a statement as to whether the Defendant’s act as to the Defendant’s act as referred to in the crime of publishing false facts is a false fact, reporting on the existence of the past or specific past or present act.

b)the purpose of questioning and the guidance of answer;

공소외 6의 질문이나 주장이 구체적인 사실관계를 전제로 하지 않았다는 점은 다음과 같은 문제가 있다. 공소외 6은 피고인이 공소외 3에 대한 불법적인 입원을 시키려 하였느냐는 취지에서 질문을 한 것이라는 취지의 진술을 한 바 있고, 피고인은 공소외 6의 질문이나 의혹제기를 멀쩡한 사람에 대한 불법적인 정신병원 강제입원을 하려고 한 것은 아니라는 질문으로 이해하고 이를 부인하였다고 주장하고 있다. 이러한 관점에서 보면 피고인의 답변은 그 의도 자체에 대하여도 허위를 말하였는지 아닌지 달리 해석되고 평가될 수 있다.

C) The diversity of the speech

(1) The issue according to the defendant's admission

In light of the Defendant’s SNS materials and press materials revealed in the record, prior to the investigation of this case, the Defendant’s basic position was that “Isnman requested a public health clinic to examine whether the disease was a mental illness (not a week 7) to confirm whether Isnman had a mental illness, and sexual male public health clinic started the procedure of confirming whether Isnman had a mental illness by administrative procedure. However, since the public health clinic was under the jurisdiction of the male market, there was no political problem, and thus, the examination procedure could no longer proceed.” It does not mean that the Defendant forced Non-Indicted 3 to be hospitalized, and the actual hospitalization was conducted by Non-Indicted 3’s wife and his wife, which is similar to that of the Defendant’s statement. The above Defendant’s remarks do not mention the facts unfavorable to the Defendant in relation to Non-Indicted 3’s hospitalization, and it does not necessarily mean that I would not have to have the Defendant hospitalized the procedure of compulsory diagnosis, and it would not be reasonable to conclude that the Defendant’s act was not a specific one who made public notice of these facts.

(2) Non-existence of a direct purpose of hospitalization

앞서 본 바와 같이 공소외 4는 기본적으로 공소외 3을 설득하여 진단을 받게 할 목적으로 ▷▷경찰서로 이동한 것이므로, 현실적으로 공소외 3을 강제적으로 입원시키려는 외부적인 행위는 존재하지 않았다. 결국 구 정신보건법 제25조 에 따른 절차는 입원단계에 이르기 전에 위법성 여부 등에 대한 내부적인 논란으로 결국 입원을 위한 실질적인 실행행위가 없게 된 것이다. 그리고 ‘~하려고 하였냐’는 질문은 준비행위를 넘어선 실질적인 실행의 착수에 이른 행위가 있느냐는 것을 물어보는 의미도 있으므로, 직접적인 실행을 목적으로 하는 행위가 없었다는 이유로 입원을 시키려는 행위가 없다는 답변을 한 것이라면, 그 자체가 허위의 사실을 공표한 것이라고 단언할 수도 없다.

(3) It does not reach the stage of hospitalization under law.

As seen earlier, insofar as the examination has not been completed, the examination is conducted only at the stage of diagnosis under Article 25(2) of the former Mental Health Act, and under Article 6(3) of the former Enforcement Decree of the Mental Health Act, the examination is conducted, and the hospitalization is conducted after being hospitalized by a person responsible for voluntary hospitalization or a person responsible for protection. Thus, the examination is conducted and the hospitalization is requested or recommended by a person responsible for voluntary hospitalization or a person responsible for protection. In addition, the head of a branch public health clinic, upon requesting the examination of the document after requesting the examination of August 31, 2012, Nonindicted 4 only received the opinion according to the result of the examination of the document. In implementing the hospitalization procedure, it is necessary to have a face-to-face diagnosis by a mental health doctor, but it is not possible to obtain a diagnosis, and the legal basis for compelling the examination is not sufficient to conclude that the examination was conducted without having received a false report, and thus, the examination procedure was not conducted without having been reported.

D) Characteristics of joint discussions

In the end, the comprehensive form of questions as seen earlier are unclear, so even if they are based on the answer, the meaning of the answer may be diverse or unclear, and the joint debate is premised on the formulation of ambiguous matters through the public debate on the assertion in its nature. As such, the supplementation of the questions falls under the share of the other party to the debate.

F. Whether the Defendant’s statement constitutes a publication of false facts to the effect that the part of the Defendant’s statement that “the proposal was finally unable to be made.” preventing the Defendant from speaking, which eventually became final, constitutes a publication of false facts.

This part of the facts charged is premised on the premise that the procedure for hospitalization of Nonindicted 3 in a mental hospital under Article 25 of the former Mental Health Act with respect to Nonindicted 3 was completely interrupted by Nonindicted 4’s will.

However, the following circumstances acknowledged by the record are as follows: ① the Defendant, at the time of the time, has a final and conclusive authority with respect to the interruption and interruption of the hospitalization procedure by the market, etc. under Article 25 of the former Mental Health Act; ② the progress of the pertinent procedure, which Nonindicted 3 was intended to be hospitalized pursuant to Article 25 of the former Mental Health Act, constitutes the procedure of active and active intervention by the Defendant from the commencement stage of the procedure; ③ there is no person other than the Defendant; ③ according to Nonindicted 34, who was the deputy head of Sungnam-si at the time, Nonindicted 34, in view of Nonindicted 4, who was the head of the branch public health center at the time, want to suspend the examination process and the procedure related to the progress of Article 25 of the former Mental Health Act; ② Nonindicted 3’s request from the public health center to the effect that there is no room for the prosecutor to readily acknowledge that there was a lack of reasonable evidence from the prosecutor’s request to the effect that there was a lack of sufficient evidence to prove that the procedure was conducted by the public health center.

G. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced under the text of Article 58

3. Violation of the Public Official Election Act due to the publication of false facts related to the previous offense of inspector;

A. Summary of the facts charged

1) Facts of premise

피고인은 2002. 5. 10. 10:59경부터 11:26경 사이 성남시 (주소 2 생략)에 있는 변호사 피고인 법률사무소 내 피고인의 집무실에서 “분당 백궁·정자지구 파크뷰 용도변경 및 특혜분양 사건”에 관한 보도자료를 수집하던 KBS ‘추적60분’ 담당 프로듀서 공소외 12가 당시 성남시장 공소외 35에게 통화를 시도하던 중 실패하여 “검찰청이라고 전화를 해 볼까요”라고 하자 “그렇게 해 보죠, 그러면 통화가 되지 않을까요”라고 답변하고, 공소외 12가 “괜찮을까요”라고 하자 “별 일 있겠어요, 그렇게 하면 연결이 되겠죠”라고 하며 공소외 12로 하여금 검사를 사칭하도록 결심하게 하고, 이어 공소외 12가 “수원지검에 경상도 말을 쓰는 검사 중 아는 사람 있어요?”라고 묻자 “수원지검에 ♠모 검사가 있는데 시장도 그 이름을 대면 잘 알 겁니다”라고 하며 공소외 12에게 사칭할 검사의 이름 및 ‘분당 파크뷰 시행사 H-1개발 공소외 39 회장의 선거지원문제’, ‘골프연습장에서 시 직원 인선문제’ 등 공소외 35에 대한 개략적인 질문사항을 알려주었다.

이에 공소외 12는 2002. 5. 10. 11:28경 위 변호사 집무실에 동석하고 있던 KBS 카메라담당 공소외 42, 오디오담당 공소외 36에게 녹음을 준비하라고 지시한 뒤, KBS로부터 받은 업무용 휴대전화를 이용하여 공소외 35의 휴대전화로 전화한 다음 전화통화에 응한 공소외 35에게 “수원지검 ♠검사입니다, 수사 중에 아니 조사하는 과정에서 시장님께 확인을 받아야 할 일이 있어서 전화를 하였습니다, 제가 조사하는 참고인이 시장님께서 ♤회장으로부터 은갈치를 받았고 ♤회장과 골프를 쳤다고 진술하는데 그 부분에 대하여 시장님의 확인을 받고 싶어서 전화를 하였습니다. 시장님께 도움을 드리려고 그러니까 좀 상세하게 말씀해 주시기 바랍니다”라고 하며 위 수원지방검찰청 ♠모 검사를 사칭하여 공소외 35와 통화 및 그 대화의 녹음을 시작하였다.

피고인은 위와 같이 공소외 12가 통화를 시작하자 녹음 중인 카메라 스피커에 귀를 대고 공소외 35의 답변 내용을 들으면서 공소외 12에게 공소외 35에 대한 추가 질문사항의 요지를 “은갈치”, “골프칠 때 검사” 등과 같이 메모지에 간단히 적어 주거나 나지막한 목소리로 위와 같이 개략적으로 알려준 질문요지 및 추가로 질문할 사항 등을 보충 설명하고, 공소외 12는 피고인이 알려 준 질문사항에 따라 공소외 35를 상대로 분당 백궁지구 용도변경 경위, 은갈치 선물 수령 등 파크뷰 ♤회장과의 관계 및 백궁지구 용도변경과의 관련성, 검사들과의 골프 약속 등 ♤회장과 검사들과의 친분 및 시장이 고소한 사건의 수사지연이유 등에 관하여 마치 검사가 조사하듯 질문하여 공소외 35의 답변을 얻어내었다.

Accordingly, the defendant, in collusion with the non-indicted 12, exercised his authority by misrepresenting himself, and as a result, on July 1, 2003, the Suwon District Court sentenced a fine of KRW 1.5 million for the crime of misrepresentation as a public official qualification, etc. and decided on December 24, 2004.

2) Criminal facts

No person shall publish false facts about the place of birth, family relation, status, occupation, career, property, act, act, organization to which he/she belongs of a candidate, support from a specific person or specific organization, etc. in favor of a candidate, his/her spouse, lineal ascendant or descendant, lineal ascendant or descendant, career, career, property, act, organization to which he/she belongs, or others in favor of the candidate by means of speech,

At around 23:00 on May 29, 2018, the Defendant responded to the question of Nonindicted Party 6’s candidate at the “2018 Jeju Yeongdeungpo-gu KBS invitation debate for candidates for Gyeonggi-do Governor of Gyeonggi-do”, which took place in KS 13, the Yeongdeungpo-gu Seoul, to mean, “I have made a false statement that I tried to go because I had an interview to do so,” and “I have no day to talk with the prosecutor. I have the same intention on the ground that I had an interview. I had an interview next to me. I have presented that I had an interview. I have an interview. I have my opinion to see that I have an interview. I have an interview with her. I have an interview with her. I have an interview with her. I have an interview with her. I have a lot of interview with the Mayor. I have presented my my opinion. I have an interview with this opinion.”

그러나 사실 공소외 12가 피고인과 인터뷰 중 공소외 35로부터 전화를 받고 피고인과 무관하게 ♠모 검사를 사칭하며 공소외 35와 통화한 것이 아니라 위 전제사실과 같이 피고인이 공소외 35로부터 전화를 달라는 음성메시지를 받은 공소외 12에게 사칭할 수원지방검찰청 검사의 이름과 물어볼 질문의 요지를 알려준 다음 공소외 12가 위 ♠모 검사를 사칭하여 공소외 35와 통화를 시작하자 메모지에 추가질문사항을 적어주거나 나지막한 목소리로 설명을 해 주는 등 공소외 12와 공모하여 피고인과 공소외 35 간의 형사사건을 담당하는 수원지방검찰청 검사를 사칭하여 그 권한을 행사하였고 그로 인해 형사처벌을 받았다.

As a result, the Defendant published false facts about the candidate’s career or behavior in favor of the candidate for the purpose of winning the election.

B. Relevant legal principles

The expression of fact as the constituent element of the crime of publishing false facts under Article 250(1) of the Public Official Election Act refers to an expression of opinion, the contents of which include a value judgment or evaluation, and refers to a statement of fact, time, spatial and specific past or current facts, which can be proved by evidence. Therefore, even if certain expression appears to indicate one opinion or comment by stating the subject and act and at the same time it appears that it is a premise of the expression, in full view of the context before and after the expression and the situation at the time when the expression were made, it shall be deemed that the expression is a non-recognous, detailed contents, date, time, purpose, and method, etc. of general expropriation and it is difficult to understand the core meaning to be generally accepted, and it shall not be deemed that the expression is a statement of fact, and if there is room to see otherwise by its readers, it shall not be deemed that the expression is a statement of opinion or evaluation, and it shall not be deemed that the expression is a mere statement of opinion or evaluation, and if it is not consistent with the purport of the former Supreme Court’s opinion or evaluation.

C. Criminal facts and the defendant's assertion acknowledged in the case 2002 Gohap113 decided Nov. 13, 2002 (hereinafter "final judgment of the prosecutor's name case"), which became final and conclusive Suwon District Court's Sung-nam branch.

1) 기록에 의하면 확정판결에서 인정된 범죄사실은, 이 부분 공소사실의 기재와 일부 내용을 달리하는 ‘한국방송공사 “추적 60분” 프로그램에서 프로듀서로 재직한 공소외 12는 2002. 5. 18. 22:00경 케이비에스(KBS) 2TV에서 방영될 ‘분당 백궁·정자지구 파크뷰 용도변경 및 특혜분양 사건’에 관한 보도자료를 수집하기 위해 성남시장과 위 파크뷰 시행업체인 에이치원(H-1)개발 주식회사 회장 공소외 39 등과의 유착의혹 및 이들의 배후를 취재함에 있어 2002. 5. 10. 10:59경 전 성남시장 공소외 35의 전 수행비서 공소외 40에게 전화하여 “검찰청”이라고 자신을 소개하고, 같은 날 11:26경 성남시청 시장 비서실에 전화하여 소속 직원인 공소외 41에게 자신을 “검찰청 검사실”이라고 소개하며 각 공소외 35와의 통화를 시도하였는데, 공소외 12가 같은 날 11:28경 위 피고인의 법률사무소 내 집무실에서 취재 목적으로 KBS에서 제공받아 사용 중인 핸드폰에 공소외 35로부터 자신의 핸드폰으로 전화를 해달라는 내용의 음성메시지가 녹음되어 있는 것을 확인하자, 피고인은 공소외 12로 하여금 공소외 35와 피고인간에 맞고소하여 수사 중인 업무상 배임 및 명예훼손 사건의 주임검사인 수원지방검찰청 ♠모 검사의 자격을 사칭하여 마치 위 ♠검사가 공소외 35를 상대로 위 맞고소 사건에 관하여 전화로 그 의혹 및 배후관계 등에 조사하는 것처럼 하려고 공소외 35에 대한 질문사항을 사전에 공소외 12에게 개략적으로 설명하면서 통화중 그때그때마다 메모지에 추가로 작성하여 보여주고, 공소외 12는 공소외 35에게 전화를 걸어 위 메모지에 기재된 내용을 가지고 질문하여 그 답변을 얻어내고 카메라담당 공소외 42, 오디오담당 공소외 36으로 하여금 이를 녹취하게 하여 보도하기로 하고, 공소외 12와 공동하여, 공소외 12는 피고인에게 “수원지검에 경상도 말을 쓰는 검사 중 아는 사람 있어요”라고 물어 피고인이 “수원지검에 ♠모 검사가 있는데 시장도 그 이름을 대면 잘 알 겁니다”라고 대답하자, 공소외 12는 공소외 35에게 “수원지검 ♠검사입니다, 수사 중에 아니 조사하는 과정에서 시장님께 확인을 받아야 할 일이 있어서 전화를 하였습니다, 제가 조사하는 참고인이 시장님께서 ♤회장으로부터 은갈치를 받았고 ♤회장과 골프를 쳤다고 진술하는데 그 부분에 대하여 시장님의 확인을 받고 싶어서 전화를 하였습니다. 시장님께 도움을 드리려고 그러니까 좀 상세하게 말씀해 주시기 바랍니다”라고 마치 위 사건을 수사 중인 ♠검사인 양 운을 뗀 다음 공소외 35를 상대로 사칭하는 통화를 시작하였고, 피고인은 가끔 카메라 쪽으로 가 스피커에 귀를 대고 공소외 35의 답변 내용을 들으면서 공소외 12에게 공소외 35에 대한 추가 질문 사항을 메모지에 간단하게 적어 주거나 나지막한 목소리로 보충 설명하고, 이에 따라 공소외 12는 공소외 35에게 「분당 백궁지구 용도변경은 누구의 부탁을 받고 한 것은 아닌가, 파크뷰의 ♤회장에게서 은갈치를 받고 함께 골프를 치는 등 친분관계가 있는 것으로 알고 있는데 ♤회장으로부터 부탁을 받고 설계변경을 한 것은 아닌가, 선거 때 ♤회장이 도와주었는가, 왜 성남시 부시장이 ♤회장의 골프클럽하우스의 사무실을 사용하였는가, ♤회장이 성남지청과 수원지검 검사들과 어울려 골프를 쳤다는 말이 있는데 어떻게 된 것인가, 박모 비서관과 이모 부장검사가 시장과 가깝게 지낸다는 말이 있는데 어떻게 된 것인가, 작년에 ♡시장이 고소한 내용의 수사가 그 당시 왜 지연되었는가」등에 관하여 마치 검사가 공소외 35를 상대로 피의자신문 하듯이 유도 질문을 하며 그 답변을 얻어내는 등으로 조사하여 공무원인 검사의 자격을 사칭하여 그 직권을 행사하였다‘는 내용이다.

2) 피고인은 검사사칭 사건의 재판 과정에서 ① 당시 공소외 12가 사건담당 검사를 물어봐서 검사의 이름을 알려주고, 사건에 관한 이야기를 하였으나 공소외 12가 검사를 사칭한다는 것을 모르는 상황에서 말한 것으로, 수원지방검찰청의 ♠모 검사는 경상도 말을 쓰는 검사가 아니라 자신과 공소외 35 사이에 진행되던 사건의 주임검사이고, ② 자신은 통화 당시 컴퓨터가 있는 책상으로 이동하여 일을 하다가, 공소외 12와 공소외 35의 통화 내용 중 흥미로운 부분이 있어서 2번 정도 카메라 스피커로 가서 통화내용을 들었을 뿐 통화 과정에서 따로 질문할 사항을 알려주지 않았다는 취지의 주장을 하였으나, 그와 같은 주장이 받아들여지지 않고 위와 같은 범죄사실이 인정되어 유죄판결을 받게 되었다.

3) On the other hand, this part of the facts charged is not based on the premise of this part of the facts charged, but based on the facts charged in the final judgment of the case named as inspector, taking into account the fact that it appears to have been partially different from the facts charged, considering the fact that the facts charged were recorded differently from the facts charged in the final judgment of the public prosecutor's name case, and that the statements of major witnesses, such as Nonindicted 12, and in particular, Nonindicted 12, unlike the facts charged, misrepresented the prosecutor's office before arrival in the defendant's office and called for Nonindicted 35 market.

D. Whether the Defendant’s remarks publicly announced false facts about the Defendant’s career and act

According to the evidence duly adopted and examined by this court, it is recognized that the defendant made a statement that "I have made a false statement that I attempted to go because I had an interview in the next place because I had an interview with the person who attempted to go. I had an interview with the person who tried to go. I have a false statement. I have a false statement on the ground that I had an interview with the person who had an interview from the person who had an interview. I have an interview. I have written a false statement on the ground that I had an interview with the person who had an intention to go. I have a false statement on the ground that I had an interview from the person who had an interview."

However, in light of the following circumstances acknowledged by the record, the evidence alone presented by the prosecutor is insufficient to recognize that the defendant published false facts as to the defendant's career and act, and there is no other evidence to acknowledge it.

1) At the time, Nonindicted 12, 42, and 36 collected information from Nonindicted 12 at the time, Nonindicted 42, and 35 at the Sungnam market, for the purpose of an interview on “the purpose of a protein, protein, protein for the alteration of the purpose of using a protein interview and preferential sale” refers to the opportunity for the Defendant to participate in the previous case. In addition, the interview refers to any act of gathering information by an ordinary reporter, etc. for the purpose of gathering news gathering or information. Thus, the whole process of collecting information on a case that can serve as the premise for the Defendant’s name or questioning by a prosecutor at the time is deemed to be the day of an interview itself or during an interview.

2) There is no statement as to whether the Defendant’s speech was evaluated as an inspector’s name due to any specific content in the Defendant’s speech, and on the sole basis of such statement, it cannot be deemed that Nonindicted 12 published the fact that Nonindicted 12 caused the Defendant to misrepresent himself during the commission of an act unrelated to the inspector’s name. In particular, the Defendant published a specific fact in the election campaign bulletin published around that time, such as: “The Defendant asked the name and important matters of the public prosecutor in charge during the interview of the Defendant in which the broadcast PD was recorded; and at the end of the legal dispute, the Defendant announced the fact that he had been in an interview, such as making the Defendant’s act irrelevant to the inspector’s name.” In light of this, it cannot be deemed that the Defendant published the fact that the Defendant committed an act irrelevant to the inspector’s name.

3) In light of the fact that Nonindicted 36: (a) “Defendant prepared a document related to the case at the time of the litigation; (b) the recording of the phone name call was commenced at that time; and (c) the Defendant, after five minutes, made a statement at the investigative agency at the time of making a statement to the effect that “Nonindicted 36, a defendant was working on the computer book because of the litigation case at the time of the Defendant; and (d) the Defendant had been working on the computer book, a consignee, and a camera,” Nonindicted 12 appears to have been working on the document related to the case as an attorney at the time of the call for the public prosecutor’s name, and thus, it is difficult to deem

4) While Nonindicted 12 puts on Nonindicted 35 at the Defendant’s speech, the part in which Nonindicted 12 stated “ Nonindicted 12, who received the phone from Nonindicted 35,” in itself, appears to be different from the fact. However, in light of the fact that: (a) the act of receiving the voice message and the act of receiving the phone was continued at the time; (b) the case occurred long; and (c) the Defendant had no reason to make a false statement on this part, it is difficult to deem that the Defendant intentionally made this part of the statement because it is highly likely that the Defendant would have made a false or misleading speech rather than the intentional act, and thus, it is difficult to deem that the Defendant intentionally made a false statement.

5) The phrase “a reputation” used in the sense that the name is not a fact, but a reputation that makes it more satisfy, and the expression to the effect that the name is written as an inspector’s name is eventually a penuous that the Defendant was sentenced and punished by the judgment as an inspector’s name was unreasonable or sound. Moreover, the mere expression that the Defendant’s name was written cannot be deemed as a statement of fact made by the Defendant in the course of the instant trial for misrepresentation of the prosecutor’s name.

6) The fact that the Defendant’s judgment was led to the failure to conduct an inspection is close to the evaluative statement without the identity of the body, and there is no part to know the specific facts by itself. In other words, the meaning is very diverse as to whether to deny all the acts listed in the crime, to deny only a part of the fact, or to recognize the fact, but to deny the legal evaluation thereof. Therefore, insofar as the Defendant did not make a false statement of other specific facts that are difficult to be compatible with the facts premised on the final judgment, it cannot be said that Nonindicted 12, at the time of such expressive act itself, made a misrepresentation with the Defendant regardless of the Defendant. In addition, such expressions are difficult to identify the core meaning to be generally accepted from the Cheonger’s standpoint because the specific contents, date, place, purpose, method, etc. of the expression are not specified, and thus it can be understood differently depending on the Cheonger.

7) In a case where the Defendant, at the time of debate, made a statement that is close to the above evaluative expression, the other party could have confirmed the position of the Defendant as to more specific facts through additional questions to supplement the contents of the debate, given the nature of debate in which multiple candidates make inquiries and answers. However, as at the time of debate on this part, there was no question as to the Defendant’s position in relation to the individual facts pertaining to this part, and the Defendant’s statement was not a stage to regard the Defendant’s statement as an expression of specific facts. Ultimately, it is reasonable to view that the expression that the Defendant’s statement was written without the Defendant’s individual assertion on this portion is not until the publication of the specific facts as to the final judgment, and it remains within the extent of the Defendant’

E. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced under the text of Article 58

4. Violation of the Public Official Election Act by publishing false facts about the achievements of the Nowon-dong Urban Development Project;

A. Summary of the facts charged

(i) Publication of false facts using the election campaign bulletin;

On May 2018, the Defendant produced and distributed the election campaign bulletins at the Defendant’s election campaign office located in Suwon-si ( Address 3 omitted) in Suwon-si (hereinafter “Seman-si”), and distributed copies of the election campaign bulletins to the right holder of Gyeonggi-do Election Commission through the book-type 50.3 billion won (hereinafter “Seman 5,50.3 billion won at a time”) from the approval of the approval of the approval of the election campaign bulletin at the election campaign office of the Defendant (hereinafter “Seman 50.3 billion won”). (b) Sungnam-si recovered the development profit of KRW 50.5 billion as the citizen’s share. (c) Of this, the KRW 92 billion was used as the construction cost of facilities behind the region behind the KOW-dong, and distributed copies to the right holder of the election campaign bulletins-type 5,50.26 billion won from June 2, 2018 to June 3, 2018.

그러나 피고인이 성남시장으로 재직하면서 개시한 성남시 대장동 일대 도시개발사업의 구조는 성남도시개발공사와 ●●은행, ▲▲은행 등으로 구성된 민간 컨소시엄에서 특수목적법인(SPC)을 설립하여 개발사업을 시행하되 민간 컨소시엄에서 개발에 필요한 자금을 조달하여 그 비용으로 대장동 지역 기반시설(터널, 확장된 진입로 및 배수지 등)과 1공단 부지 공원조성공사를 진행하는 구조로서, 성남도시개발공사와 민간 컨소시엄은 위와 같이 조성된 기반시설과 공원을 성남시에 무상으로 귀속시키고 이에 더하여 대장동 내 임대주택부지 또는 그 환가대금을 배당 형태로 성남시에 지급하기로 약정하였을 뿐 선거일 당일인 2018. 6. 13.까지 실제로 5,503억 원 상당의 개발이익금이 성남시로 귀속된 바 없었다.

On the other hand, in the case of 92 billion won for the construction cost of the hinterland facilities behind the Dong-dong area, it is nothing more than the estimated construction cost, not only the determined construction cost, but also the construction cost for each hinterland facilities on the day on June 13, 2018, which is the day of the election day, and the amount executed as the construction cost of the hinterland facilities is merely about KRW 900 million, such as the design cost, and there was no use of the relevant construction cost or development profit or nor there was no fact that the relevant development profit or development profit was confirmed

또한, 1공단 부지 공원조성 사업비 2,761억 원 또한 선거일 당일인 2018. 6. 13.까지 토지보상비 및 PF 대출수수료 등 합계 약 1,254억 원만이 지출되었을 뿐이고, 성남지원 및 성남지청 신청사 이전을 둘러싼 성남지원의 예정부지 면적 확대 및 공원조성공사 잠정 유보요청 등으로 인해 공원조성공사가 착공도 되지 않았으며, 이 사건 사업시행 이전 1공단 부지 도시개발사업 관련 권리자였던 ■■■■■■ 주식회사가 성남시 등을 상대로 소가 2,511억 원 상당의 손해배상의 소를 제기하여 해당 민사소송이 계속 중이었으므로 1공단 부지 공원조성비가 사용되었다거나 성남시에 관련 개발이익 내지 개발이익금이 확정되거나 귀속된 사실이 없었다.

Nevertheless, the Defendant stated the above contents in his election campaign bulletin and distributed it through the election commission, thereby publicly announcing false facts about the candidate’s act in favor of the candidate for the purpose of being elected.

(ii) the publication of false information on an election campaign price;

At around 17:00 on June 11, 2018, the Defendant made a statement to many unspecified voters who listen to the Defendant’s speech during the election campaign speech for the candidate of the Gyeonggi-do, which was in progress in Kimpo-dong, Kimpo-si, Kimpo-si, which was located in Kimpo-si, about 17:00, about 17:00, about 50 billion won, and 5:50.3 billion won, and 5:0 billion won, and 5:50 billion won, and 100 billion won, to be made in the surrounding area and to be made in the road construction.”

However, the development gains amounting to KRW 50.3 billion that will be reverted to Sungnam City was merely an agreement between the Sungnam Urban Development Corporation and the private consortium, and the development profits amounting to KRW 50.3 billion on the day of the election day was not accrued to Sungnam City by June 13, 2018. The development profits amounting to KRW 50.5 billion on the day of the election day was not accrued to Sungnam City. The development profits amounting to KRW 92 billion on the behind facilities in the Dong-dong area was merely an estimated cost, rather than an established construction cost, and there was no construction cost for each behind facilities, and the executed amount was merely KRW 90.9 billion, and there was no fact that related development gains or the development profits accrued at the time of Sungnam.

Nevertheless, the Defendant published false facts about the candidate’s act in favor of the candidate himself by means of a speech for the purpose of election by making the above statements to many unspecified voters.

B. Relevant legal principles

“False facts” under Article 250(1) of the Public Official Election Act means matters inconsistent with the truth, which are sufficient enough to have the elector make an accurate judgment on candidates. However, in a case where important matters are consistent with objective facts in light of the overall purport of the published facts, even if there is a little exaggeration or exaggeration of the truth in detail, it cannot be deemed a false fact. Whether a certain expression is false or not should be determined on the basis of the overall increase of the relevant expression, comprehensively taking into account the overall purport of the expression, objective contents, ordinary meaning of the words used, connection method of the words, etc., on the premise that the general elector has an ordinary method of expressing such expressions (see, e.g., Supreme Court Decision 2015Do1202, May 14, 2015).

C. Determination

1) Progression of the urban development project and restitution of development gains

A) The Sungnam-si, through the Sungnam-si Development Corporation, planned to undertake the project in 100% investment in 100% of the Sungnam-si, but the private business entity and the Sungnam-si Development Corporation, which will play the role of investment in the project cost by a specific method, also made a special purpose corporation (the equity ratio of 50% + 1 week, 50% of the private business entity - 1 week).

나) 성남도시개발공사에서는 대장동 도시개발사업의 민간사업자를 공모하였는데, 개발이익을 사전적으로 확보하기 위한 수단으로 민간사업자 공모단계에서부터 2,561억 원 상당의 제1공단 공원화 사업을 진행하고 및 임대주택부지(A11 블럭)를 제공받을 수 있도록 공모의 기준을 만들었고 이에 따라 ●●은행, ▲▲은행 등으로 구성된 민간 컨소시엄이 그 조건을 받아들여 민간사업자로 선정되었다.

다) 이에 따라 성남도시개발공사와 민간 컨소시엄은 사업비로 제1공단 공원화사업(2,561억 원 상당의 주8) 사업비 + 지하주차장)을 진행하고, 임대주택부지(1,822억 원 상당의 A11 주9) 블럭) 또는 배당금을 받기로 한 후, 특수목적법인 ★★★★㈜를 설립하여 사업시행자 지정을 받고 개발 사업을 진행하였다.

라) 그 후 대장동 도시개발 사업을 진행하면서 위 사업 구역 외에 기반시설(북측 터널조성, 남측 진입로 확장, 배수지 신설)을 ★★★★㈜의 부담으로 만드는 것으로 인가조건이 변경되었다.

마) 한편, 제1공단 공원화 사업과 관련하여 위와 같은 개발이익 환수 구조를 보장할 목적으로 처음 대장동 도시개발사업을 진행할 당시에는 제1공단 공원화 사업을 사업 자체에 포함시켜 「성남 대장동·제1공단 결합도시개발사업」을 진행하였으나, 이후 제1공단 부지와 관련한 소송 때문에 사업 전체에 문제가 생길 우려를 고려하여 이를 분리하여「성남 판교대장 도시개발사업」을 진행하게 되었다. 그리고 그 이행을 확실히 하기 위하여 ★★★★㈜로부터 이행확약서 및 부제소특약확약서를 받았다.

바) 대장동 도시개발사업의 개발이익 환수구조는 ①성남시에서 성남도시개발공사와 사업에 필요한 자금을 조달하는 등의 역할을 맡을 민간컨소시엄이 함께 특수목적법인 ★★★★㈜를 설립하여 사업을 진행하되, ②★★★★㈜에서 제1공단 공원화 사업(공원조성사업 2,561억 원 및 지하주차장) 및 구역 외 기반시설 사업(북측 터널조성, 남측 진입로 확장, 배수지 신설)을 하고, ③★★★★㈜로부터 성남도시개발공사가 1,822억 원 상당으로 평가되는 임대주택부지(A11 블럭) 또는 같은 금액 상당의 배당금을 받을 수 있게 하는 구조이다. 즉, 장래에 상당한 개발이익이 발생할 것을 예상하여 미리 사업을 수행하는 ★★★★㈜에서 일정한 사업비가 소요되는 사업을 하고, 임대주택부지 또는 현금을 받을 수 있게 정한 형태이다.

2) Contents of the report that the Defendant received in connection with the Kandong Urban Development Project

According to the records, the Defendant received a report related to the restoration of the development profit of the K-dong development project for a press conference related to the K-dong development project around March 2017, and the main content thereof was to use the development profit amounting to KRW 276.1 billion for a park project (park creation project KRW 256.1 billion, underground parking lot development project KRW 20 billion), and to use development profit amounting to KRW 274.2 billion for the development profit amounting to KRW 60 billion on the north side, KRW 26.6 billion for the extension of the access road to the south side, KRW 6 billion for the extension of the access road to the south side, KRW 18.2 billion for the leased apartment site. The content was thereafter utilized as the basic material for publicity and election publicity related to the K-dong development project.

(iii) the accuracy of expressions expressed in election campaign bulletins and election campaign bulletins;

앞서 본 대장동 도시개발사업의 개발이익 환수구조에 의하면 제1공단 공원화 사업 및 구역 외 기반시설 사업의 경우 성남시 또는 성남도시개발공사가 ★★★★㈜로부터 돈을 받아 사업을 진행하는 구조가 아니라, 대장동 도시개발사업으로부터 개발이익이 발생할 것을 기대하면서 사업을 수행하는 ★★★★㈜에서 비용이 소요되는 다른 사업(제1공단 공원화 사업 및 구역 외 기반시설 사업)을 하게 하는 구조이다. 즉, 성남시가 재정을 부담하여야 하는 사업을 ★★★★㈜에서 대신 진행하도록 하여, 실질적으로 성남시가 이익을 얻도록 하는 것이다. 기본적으로 임대 주택 용지와 관련하여 현금으로 수령할 수 있는 부분을 제외하고는 성남시 측에서 돈을 받는 구조가 아니기에 엄밀한 의미에서 선거 공보물 및 선거 유세에서의 표현, 특히 성남시에서 돈을 벌었고, 이를 특정 용도에 사용하는 것이라는 취지의 표현은 정확한 표현이라고 볼 수 없다.

Therefore, when this part is based on the defendant's report that he received, it is correct in the form that it is intended to undertake the 1st public corporation park project that will be used as 276.1 billion won for Sungnam City, and the 1st public corporation project that will be used as 92 billion won and infrastructure project outside the zone that will be used as 92 billion won for Sungnam City, and it is also correct in the form that it is intended to obtain the same amount as the leased apartment site or the same amount as 182.2 billion won at the option of Sungnam City Development Corporation.

4) Whether the crime of publishing false facts is established

As seen earlier, although there are somewhat inaccurate or inappropriate parts among the descriptions of the election campaign bulletin or the expressions in the course of taxation, in full view of the following circumstances acknowledged by the record, each of the expressions is a case where important parts are consistent with objective facts, and it is merely a case where there is a little difference between truth and truth or a little exaggeration in the detailed contents, and thus, it cannot be deemed that a false fact is published, and there is no evidence to acknowledge it differently.

가) 해당 표현에 있어 가장 중요한 부분은 대장동 도시개발사업으로 인하여 5,503억 원 상당의 이익을 성남시 측에서 얻게 되었는지 여부이다. 그리고 이 부분은 비록 추산치가 포함되어 있으나, ★★★★㈜에서 2,761억 원이 투입될 예정인 제1공단 공원화 사업, 920억 원이 투입될 구역 외 기반시설 사업을 진행하기로 하고, 1,822억 원 상당의 임대 주택용지 또는 현금을 성남도시개발공사 측에서 받기로 하였고, 위와 같은 사업을 하게 되는 것은 사전적으로 미리 정해놓은 것이므로 결과적으로 성남시 측에서 해당 사업을 통하여 5,503억 원 상당의 이익을 얻게 될 상황은 만들어진 상태이므로, 그러한 이익을 얻었다는 것은 허위라고 보기 어렵거나, 적어도 피고인이 이에 관하여 허위라는 인식을 가졌다고 보기는 어렵다. 그리고 위와 같이 5,503억 원 상당의 이익을 받는 방법이 정해져 실행만이 남은 이상 그 이익에 관한 표현을 ‘환수하였다’, ‘벌었다’, ‘수익으로 하였다’ 등으로 표시하더라도, 그것이 명시적으로 현금을 받았다는 취지의 표현이 아닌 한 위와 같은 이익 확보 내역을 급부가 단축된 것으로 이해하고 다소 과장된 표현으로 사용하였다고 볼 것이지 이를 허위의 사실을 공표한 것으로 볼 것은 아니다.

나) ‘사용하였다’ 또는 ‘썼다’는 표현도 성남시의 부담으로 2,761억 원과 920억 원이 지출되어야 할 사업이 ★★★★㈜ 측의 비용 부담으로 진행되기로 정해진 것이라는 측면에서 볼 때 시민들이 직관적으로 이해하기 쉽게 표현을 한 것으로 볼 것이지 이를 허위의 사실을 공표한 것으로 볼 것도 아니다.

C) In particular, in the case of partial amount of infrastructure charges outside the district, the estimated value was merely a significant decrease in the actual cost, and the estimated value itself also has an inaccurate aspect, such as data calculated as KRW 88 billion. However, if the development gains are to be recovered in the form of a project instead of a specific project instead of a kind, the development gains recovered will eventually be expressed as an estimated cost incurred in the performance of the relevant project. Furthermore, inasmuch as the Defendant received a report at KRW 92 billion, even if the estimated amount was erroneously calculated, it is only a matter of a side that failed to accurately report the estimated amount, and thus, it cannot be deemed as an intentional act with the Defendant’s belief and publicity that the Defendant would recover the development gains.

D) As seen earlier, the fact that the issue of the site of the court and the prosecutor’s office, etc. scheduled to be established in the vicinity of the park and the lawsuit of compensation for damages surrounding the site of the first public corporation is separate from securing development gains in this part, and as seen earlier, the “used” and “written expression” are not deemed as a completed expression, but as long as the permissible division division can be seen, the above circumstance does not affect the falsity of expression by the Defendant.

E) Considering that the Defendant’s expression of the details related to the infrastructure project outside the relevant zone as KRW 100 billion appears to be a similar amount to KRW 100 billion, the Defendant made an oral explanation to the extent of memory. Since 50.3 billion, the total amount at the time was accurately expressed, it cannot be deemed as an act with intent to publish false facts.

F) In addition to the acts indicated in this part of the facts charged, the Defendant engaged in various public relations activities and tax-free activities in the election of the Gyeonggi-do Governor. In that process, the first Corporation explicitly stated that the project for the parkization or infrastructure project outside of the park zone is in progress, or expressed that the amount of KRW 182.2 billion is a future revenue (In this part of the facts charged, the statement about the projects for the parkization of the first Corporation seems excluded from the facts charged because it was a future form of statement). In view of this point, it is highly probable to deem that the Defendant made a statement as to this part of the facts charged in order to emphasize the current status and source of the development gains, rather than using the same expression as the facts charged in the intention to determine the actual development gains or to cause confusion to the voters by granting the meaning of the actual development gains through the expression.

D. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this part of the judgment is publicly announced under the main sentence of Article

Judges Choi Chang-hun (Presiding Judge)

1) Unlike Paragraph 2 of Article 25 of the former Mental Health Act, Article 25(3) of the former Mental Health Act provides that the Mayor, etc. may proceed with the procedure of hospitalization at his/her own discretion, so the relevant provision of the Enforcement Decree is in progress with the procedure under Article 25(3) of the former Mental Health Act, which is a discretionary act, taking into account the basic ideology prescribed in Article 2(5) of the former Mental Health Act that voluntary hospitalization should be encouraged, and the status and role of the legal guardian prescribed in Article 22 of the same Act, taking into account the basic ideology prescribed in Article 2(5) of the former Mental Health Act,

(2) In the Supreme Court Decision 200Do4415 Decided February 23, 2001, supra, suggesting that the pertinent legal guardian may proceed with the procedure under Article 25 of the former Mental Health Act with a psychiatrist (at the time of the time of the time of the medical doctor) in relation to the measure to admit a person subject to face-to-face medical examination is understood to the effect that in the process of this procedure, face-to-face measures such as face-to-face medical specialists, etc. are necessary in finding the person subject to face-to-face medical specialists, etc.

3) Article 25(3) of the former Mental Health Act (amended by Act No. 25(3))

4) Meanwhile, according to Article 25(3) of the former Mental Health Act, the head of a Si, etc. is the subject of hospitalization. However, it is apparent that the hospitalization itself is a measure taken by a medical institution as the principal agent, and the third party market, etc. has the status to request hospitalization ( Accordingly, Article 6 of the former Enforcement Decree of the Mental Health Act expresses that the head of the Si, etc. is requesting the measure of hospitalization pursuant to the above provision).

5) Since then, second, Nonindicted 20 had been discovered, and Nonindicted 3 had been diagnosed with a sullle.

Note 6) According to the evidence, the “inhospitalized” of the indictment appears to be a clerical error.

Note 7) It is written that the forced diagnosis of a mental disease was requested.

Note 8) The amount to be reduced by KRW 256.1 billion upon occurrence of the following circumstances, such as the reduction of the created area, shall be the profit of the Sungnam Urban Development Corporation.

9) Subsequent to the supply value at KRW 182.2 billion, the remainder after deducting the supply value determined within the appraisal value of the A11 block site at the time of supply shall be preferentially paid.