Whether a crime of abandonment of duty, which is a crime of omission, is established in cases where a police officer fails to take appropriate measures such as using seized objects for proving a crime, and return them to a person subject to seizure to destroy evidence (negative)

Although the director of the police station knew that he/she was under custody by his/her subordinate staff to control the amusement room due to the suspicion of violating the Act on Sound Records, Video Products and Game Software, and thus, he/she did not take appropriate measures such as transferring the above seized articles to the investigative department in accordance with his/her duties and transferring them to the prosecutor's office in accordance with his/her duties and allowing the subordinate staff to use them for proving the crime suspicion. Rather, in cases where the head of the police station instructs the subordinate staff to return the confiscated onto the proprietor of the amusement room, only the crime of destroying evidence, which is a crime of commission, is established, and the crime of neglecting duties is not established separately.

Articles 122 and 155 of the Criminal Act

Supreme Court Decision 66Do840 Decided July 4, 1967 (No. 15-2, 21), Supreme Court Decision 71Do176 Decided August 31, 197 (No. 199-2, 77), Supreme Court Decision 96Do51 Decided May 10, 1996 (Gong196Ha, 1941), Supreme Court Decision 96Do2825 Decided February 28, 197 (Gong197Sang, 1032)

Defendant

Prosecutor

Daejeon District Court Decision 2005No219 Decided May 20, 2005

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the ground of appeal on the crime of abandonment of duty and destruction of evidence

(. (Name omitted) If the defendant, who was the chief of the police station, was the subordinate staff of the police station, was aware that he was under the custody of the above crime prevention and office by controlling (title omitted) amusement rooms from his subordinate staff to the charge of violating the Act on Sound Records, Video Products and Game Software, and was aware that he was under the custody of the above crime prevention and office, he did not take proper measures such as transferring the above seizure articles to the investigation department of the police station according to his official duties and sending them to the prosecutor's office, and ordering the subordinate staff to return the confiscated machines as above and return them to the (title omitted) owner of the entertainment room, it shall be deemed that the illegality of the division of office is included in the destruction of evidence. In this case, it is reasonable to view that only the crime of destroying evidence, which is the crime of omission, is established, and that the crime of abandoning duty of omission, is not established separately (see, e.g., Supreme Court Decision 71Do176, Aug. 31, 1971; 200Do1696.).

On the other hand, the Supreme Court Decision 66Do840 delivered on July 4, 1967, which held that if the defendant, a judicial police officer, instigated the suspect to make a false statement to conceal related persons, the crime of destroying evidence is committed, and at the same time, it would be refused to perform legitimate duties. This is to be modified.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the relation between the crime of abandonment of duty and the crime of destruction of evidence.

2. As to the remaining grounds of appeal

The court below acquitted the defendant in collusion with the non-indicted 1 on May 10, 2003 on the grounds that there was no proof as to the facts charged that the defendant left the room of seizure to the non-indicted 2 by returning the altered version, and neglecting his duties without any justifiable reason, and at the same time destroyed evidence concerning another person's criminal case. The argument in the grounds of appeal disputing this point is the purport of disputing the selection of evidence and the fact-finding, and this does not constitute a legitimate ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Lee Yong-chul (Presiding Justice)