2016Do7104 A. Violation of the Presidential Records Management Act

(b) Disclosure of official secrets

(c) No height;

(d) Concealment of public documents;

(e) Violation of the Act on the Aggravated Punishment, etc.;

Defendant 1 and one other

Defendant 1 and Prosecutor (as to all the Defendants):

Law Firm Barun et al.

Seoul High Court Decision 2015Do3042 Decided April 29, 2016

January 14, 2021

All appeals are dismissed.

"The violation of the Presidential Records Management Act except for the violation of the Presidential Records Management Act due to delivery of the documents listed in No. 9 of the attached Table 9 in the judgment of the court of first instance" shall be corrected to "the violation of the Presidential Records Management Act".

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. As to the Defendants’ violation of the Presidential Archives Management Act (hereinafter “Presidential Archives Management Act”).

1) The principle of no punishment without the law requires that crimes and punishments be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, penal provisions should be strictly interpreted, and interpreting them in a manner unfavorable to the defendant beyond the possible meaning of the language and text shall not be permitted pursuant to prohibition of extended interpretation, which is the content of the principle of no punishment without the law (see, e.g., Supreme Court Decision 2015Do17847, Mar. 10,

2) The Presidential Records Act aims to enhance transparency and accountability in the operation of the State by prescribing matters necessary for the efficient management of Presidential records, such as the protection, preservation, and utilization of Presidential records, and the establishment and operation of the Presidential Archives (Article 1). Article 2 of the Presidential Records Act refers to the records and articles created and received by the President or any other institution in relation to the duties of the President (Article 1). (Article 2 of the Presidential Records Act refers to records and articles (Article 1(1)1), and "records" refers to records under Article 3(2) of the Public Records Management Act (Article 3(a) of the Public Records Act (Article 3(2) of the Public Records Act). Article 3 Subparag. 2 of the Public Records Act provides that "records" refers to all forms of archival information and data, such as documents, books, ledgers, cards, drawings, audio-visual materials, electronic documents, etc. created or received by public institutions in relation to their duties.

In principle, the Presidential Records Act provides that all processes and results related to the duties of the President and the heads of assistant institutions, advisory institutions, etc. of the President shall be created and managed as records (Article 7(1)). Articles 11 and 13 also provide for the procedures for transferring the created Presidential records to the central records management institution and the procedures for destroying such records (Articles 11 and 13). Furthermore, Article 14 provides that no person shall destroy, destroy, conceal, destroy, or leak or remove the Presidential records without permission (Article 14). Article 30(1) and (2) provides that a person who separately or separately manages the Presidential records or has accessed and perused the Presidential records shall not divulge any confidential information and any content included in the presidential designated records during the period of protection (main sentence of Article 19). Article 18(3) of the Presidential Records Act provides that any person who fails to preserve the original records shall not be subject to the preservation of the Presidential records by any means prescribed by Presidential Decree, such as the preservation of the records.

Unless there are special circumstances, such as that the Presidential Records Act was enacted for the purpose of enhancing the transparency and accountability of the state administration through the efficient management of Presidential records, and the copies themselves need not be preserved separately from the original, except for the original documents or electronic files, and there is no need to preserve all copies or additional copies as Presidential records. The Presidential Records Act separates acts such as destroying, damaging, or divulging the Presidential records themselves and acts of divulging the contents thereof, and Article 21 of the Public Records Act separate provisions concerning the production, etc. of copies of important records among records classified as permanent preservation, it is not permissible to interpret that the Presidential Records Act includes copies or additional copies other than the original documents or electronic files in the Presidential records prohibited from being leaked by Articles 30(2)1 and 14 of the Presidential Records Act, in principle.

3) Examining the records in accordance with the above legal principles, the court below is just in maintaining the judgment of the court of first instance that acquitted the Defendants of the violation of the Presidential Records Act among the facts charged in this case against the Defendants, on the ground that the documents in the attached list of crimes (1) and the list of crimes (3) were documents stored in the computer used by Defendant 1, which were additionally printed out or copied from the original documents used for reporting procedures, and cannot be deemed Presidential records as prescribed in Articles 30(2)1 and 14 of the Presidential Records Act. In so doing, the court below did not err by misapprehending the legal principles on presidential records, etc., contrary to what is alleged in the grounds of appeal.

B. As to the Defendants’ leakage of official secrets, the lower court affirmed the first instance judgment that acquitted the Defendants on the charge of leakage of official secrets (excluding the part related to Defendant 1’s delivery of Non-Indicted 1’s trends) among the facts charged in the instant case against the Defendants, on the ground that: (a) Defendant 2 instructed Defendant 1 to deliver the documents listed in No. 4 of the List of Crimes in the lower judgment (hereinafter referred to as “documents No. 1 trend”) to Defendant 1; and (b) the Defendants informed Non-Indicted 2, a presidential relative, of the content of the remaining list of crimes except for Non-Indicted 1’s trend documents, falls under the legitimate scope of duties of the secretary in charge of public office.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the requirements for political party acts and the scope of lawful duties, or omitting necessary judgment, contrary to what is alleged in the grounds of appeal. As to Defendant 1’s concealment of public documents and accusation against Defendant 1, the lower court upheld the first instance judgment that acquitted Defendant 1 on the charge of concealment of public documents and accusation among the facts charged in the instant case against Defendant

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal, or by misapprehending the legal doctrine on documents and intention of false accusation used by public offices in the crime of concealing public documents, or by omitting necessary judgment, etc.

D. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) (hereinafter “Aggravated Punishment, etc.”)

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted Defendant 1 on the part receiving KRW 50 million in cash among the facts charged in the instant case against Defendant 1’s violation of the Specific Crimes Aggravated Punishment Act, and reversed the first instance judgment that found Defendant 1 guilty on the ground that the part receiving KRW 50 million in cash constitutes a case where there is no evidence of criminal facts with respect to one of six aggregate 6 aggregate aggregate, and acquitted Defendant 1, the lower court reversed the first instance judgment that found Defendant 1 guilty on the ground that the statute of limitations has expired, and sentenced Defendant 1 to the acquittal.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on determining the credibility of a bribe donor’s statement, or by failing to exhaust all necessary deliberations, etc.

2. As to Defendant 1’s grounds of appeal, the lower court affirmed the first instance judgment convicting Defendant 1 of the divulgence of confidential information on Nonindicted Party 1’s trend documents related to official duties, on the ground that: (a) Defendant 1’s submission of Nonindicted Party 1’s trend documents to Nonindicted Party 3 via Nonindicted 3; and (b) the collection and reporting of information in the office of secretary on the public office and secretary on the content of the documents contained therein was considerably beneficial to the outside public disclosure; and (c) Defendant 1’s disclosure of confidential information

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the meaning and scope of official secrets in the crime of divulgence of official secrets, and by misapprehending the legal doctrine on the disclosure of Presidential records under Article 16(1) of the Presidential Records Act,

3. Conclusion

Therefore, all appeals are dismissed, and there is an obvious error in the judgment of the court of first instance, so it shall be corrected in accordance with Article 25 of the Regulation on Criminal Procedure. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok