[1] The meaning of the protected legal interest under Articles 21 and 67(2) of the former Korea Housing Finance Corporation Act / The standard for determining whether a case constitutes a "confidential known in the course of performing duties" under Article 21 of the same Act

[2] In a case where the defendant who is an executive officer of the Korea Housing Finance Corporation was indicted for violating the former Korea Housing Finance Corporation Act on the ground that he divulged the confidential information learned in the course of performing his duties by allowing Gap to inspect the list of candidates for the professor Group among the candidates for the technical evaluation committee members of the Korea Housing Finance Corporation's relocation and establishment projects upon Gap's request, the case holding that the court below erred in the misapprehension of legal principles on the ground that the above list of candidates for the Evaluation Committee's members could impede fairness and reliability of the results of bidding, and interfere with the overall performance of the duties of the Korea Housing Finance Corporation, and it is worth protecting them as a substantial secret in order to achieve the purpose of the Korea Housing Finance Corporation, and constitutes "confidential learned in the course of performing duties

[1] The purpose of the Korea Housing Finance Corporation established the Korea Housing Finance Corporation (hereinafter “Corporation”) to facilitate the long-term and stable supply of housing finance, etc., and to provide credit guarantee and reverse annuity mortgage guarantee services, thereby contributing to promoting the welfare of citizens and the development of the national economy (Article 1). The specific scope of services of the Corporation run as prescribed by this Act and the Act on the Management of Public Institutions and the articles of incorporation (Articles 3 and 22). In addition, Article 21 of the former Korea Housing Finance Corporation Act (amended by Act No. 15417, Feb. 21, 2018) provides that “No current or former executive or employee of the Corporation shall divulge any confidential information learned in the course of performing his/her duties,” and Article 67(2) provides that a person who divulges confidential information shall be punished by violating the aforementioned provisions.

In light of the legislative purport of the Korea Housing Finance Corporation Act, the work performed by the Corporation in charge of assisting and supervising the functions of the State housing welfare policy, the characteristics of the status of its executives and employees, and the language, contents, etc. of the above provisions, the aforementioned provisions are intended to protect the functions of the State or the Corporation threatened with the divulgence of secrets among the former and incumbent executives and employees. As such, “confidentially known in the course of performing duties” should be determined on the basis of whether the disclosure of the relevant facts may interfere with or threaten the achievement of the purposes of the Corporation. Determination as to whether such disclosure may cause harm to the achievement of the purpose of the Corporation, and the contents of the duties known to the public are not necessarily limited to the duties listed in

[2] In a case where the Defendant, an executive officer of the Korea Housing Finance Corporation (hereinafter “Corporation”), was indicted for a violation of the former Korea Housing Finance Corporation (amended by Act No. 15417, Feb. 21, 2018; hereinafter the same) on the ground that he disclosed confidential information he/she learned in the course of performing his/her duties by allowing Gap to transfer the IT center to the IT center and peruse the list of candidates for the faculty group among the candidates for the technical evaluation committee members of the construction project upon Gap’s request, the case holding that the lower court acquitted the Defendant of the facts charged on the ground that, in full view of the purpose and content of the aforementioned project, the purpose and content of the project, the degree of impact of the evaluation committee’s evaluation on the evaluation members’ evaluation members’ evaluation upon the selection of the business operators to perform the project, the measures of construction works to maintain the security of the candidate and the selection order of the evaluation committee members, where some of the list is leaked, may impair the fairness and reliability of the results of the project and hinder the stable performance of the overall work.

[1] Articles 21 and 67(2) of the former Korea Housing Finance Corporation Act (Amended by Act No. 15417, Feb. 21, 2018); Articles 1, 3, 22, and 69 of the Korea Housing Finance Corporation Act / [2] Articles 21 and 67(2) of the former Korea Housing Finance Corporation Act (Amended by Act No. 15417, Feb. 21, 2018)

Defendant

Prosecutor

Law Firm Gongsung, Attorneys Lee Gyeong-hwan et al.

Seoul Central District Court Decision 2015No5024 decided May 27, 2016

The part of the judgment below against the Korea Housing Finance Corporation is reversed, and that part of the case is remanded to the Seoul Central District Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. Whether the Korea Housing Finance Corporation has violated;

A. Summary of the facts charged

The Defendant, in the order of July 5, 2014, prepared a list of candidates for the professor group evaluation committee members (10 persons) (hereinafter “instant list”) who are the executive officers of Nonindicted Corporation 1 (hereinafter “Corporation”), and Nonindicted Party 2, in the order of July 2014, upon the request of Nonindicted Party 2, “a specific professor who knows well, becomes the chairman of the IT center’s technical ability evaluation project (hereinafter “instant project”). The Defendant, upon receipt of a request from the IT center’s request, prepared a list of candidates for the professor group evaluation committee members (10 persons) who are the chairman of the evaluation committee and other professors who are the candidates for the evaluation committee members (hereinafter “instant list”). On August 5, 2014, the Defendant divulged information on the instant project, which was a confidential information learned while performing his duties, by allowing Nonindicted Party

B. The judgment of the court below

For the following reasons, the lower court reversed the judgment of the first instance that found the Defendant guilty of this part of the facts charged, and found the Defendant not guilty on this part of the facts charged. Of the technical evaluation members of the instant project, the instant list includes the name of the candidate for the professor Group and the classification by recommendation, the affiliation of each professor, position, and duties in charge. It is difficult to view that such content is leaked to threaten the functions of the Corporation’s securitization of mortgage-backed claims, housing finance credit guarantee, and reverse annuity mortgage guarantee business, and it cannot be said that the said list is worth protecting the relevant

C. Supreme Court Decision

(1) The purpose of the Korea Housing Finance Corporation is to promote the long-term and stable supply of housing finance, etc. by establishing the Corporation to provide credit guarantee services and reverse annuity mortgage guarantee services (Article 1). The specific scope of business operations of the Corporation operated in accordance with this Act and the Act on the Management of Public Institutions and the articles of incorporation (Articles 3 and 22), and the executives of the Corporation and employees prescribed by Presidential Decree are deemed public officials in the application of the provisions of bribery Act under the Criminal Act (Article 69). In addition, Article 21 of the former Korea Housing Finance Corporation Act (amended by Act No. 15417, Feb. 21, 2018; hereinafter the same shall apply) provides that “The executives, employees, and persons who were in the position thereof shall not divulge any confidential information learned in the course of performing their duties,” and Article 67(2) provides that a person who divulges confidential information in violation of the aforementioned provisions shall be punished.

In light of the legislative purport of the Korea Housing Finance Corporation Act, the work performed by the Corporation in charge of assisting and supervising the functions of the State housing welfare policy, the characteristics of the status of its executives and employees, and the language, contents, etc. of the above provisions, the aforementioned provisions are intended to protect the functions of the State or the Corporation threatened with the divulgence of secrets among the former and incumbent executives and employees. Here, “confidentially known” should be determined on the basis of whether the disclosure of the relevant facts may interfere with or threaten the achievement of the purposes of the Corporation. Determination as to whether the disclosure of the relevant facts may cause harm to the achievement of the purposes of the Corporation, and the contents of the duties known to the public are not necessarily limited to the duties listed in each subparagraph of Article

(2) According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed. ① The project of this case aims to: (a) relocate all of the existing IT infrastructure to a new headquarters without suspending its work; and (b) introduce, maintain, and repair various systems, such as business, disaster recovery, information security, and computer equipment; and (c) stably build an IT-based infrastructure that can smoothly perform the work at a new headquarters; (b) the selection of the project of this case is made in the manner of entering into a contract with the person eligible for preferential bargaining in the order of higher score among the eligible bidders who meet certain requirements as a bidding participant; and (c) the technical evaluation score that accounts for 90% from the comprehensive evaluation score is calculated as the score granted by the technical ability evaluation committee; and (c) the selection of the evaluation committee members is determined based on the evaluation of the evaluation committee members practically. The examination committee’s detailed evaluation of the project of this case requires the prior evaluation of technical ability to ensure the security order of the evaluation committee members; and (d) the list of the evaluation committee members was also replaced the list of the candidates with the entire evaluation committee members.

Examining the purpose and contents of the instant project, the degree of influence of evaluators on their evaluation in the selection of business operators to carry out the instant project, and the measures of construction works to maintain security for the candidate and the order of priority in the selection of evaluators, etc. in light of the legal principles as seen earlier, the list of candidates for evaluators may, even if some of them are leaked, impair the fairness and reliability of the results of the project in question and hinder the stable performance of overall construction works. Accordingly, the list of candidates for evaluators constitutes “a secret obtained in the course of performing duties,” which is worth protecting them as a substantial secret in order to achieve

Nevertheless, even if the list of candidates is leaked, the lower court determined that it is difficult to view that the function of the State or the Corporation, such as securitization of mortgage-backed claims, housing finance credit guarantee, and reverse annuity mortgage guarantee, is threatened. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of “confidential known in the course of performing duties,” thereby adversely affecting the conclusion of the judgment. The

2. Whether the Act on the Registration of Real Estate under Actual Titleholder's Name is violated;

The court below affirmed the judgment of the court of first instance which acquitted the prosecutor on the ground that the evidence submitted by the prosecutor alone cannot be deemed to have proved this part of the facts charged without reasonable doubt, and rejected the prosecutor's grounds for appeal for mistake of facts.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

The part of the lower judgment against the Korea Housing Finance Corporation Act is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won (Presiding Justice)