In a case where the Defendant, who is the superintendent of the Office of Education, was indicted of abuse of authority and obstruction of another’s exercise of rights on the ground that he/she issued an official document to instruct high schools, etc. under his/her jurisdiction to refuse to submit audit data related to school violence, and that public officials of the Office of Education and the principals of the high schools do not cooperate with the request of the Ministry of Education, Science and Technology, the case holding that the Defendant’s refusal to submit audit data constitutes abuse of authority or that there was no awareness that the Defendant’s refusal to submit audit data constitutes abuse of authority or abuse of authority.

In a case where Defendant, who is the superintendent of education, was indicted for abusing authority or obstructing another’s exercise of rights on the ground that the Ministry of Education, the Ministry of Education, the Ministry of Education (hereinafter “Ministry of Education”) issued a public document to instruct public officials of the Office of Education and the principals of high schools, etc. to refuse to submit audit data related to school violence at high schools, etc., and issued a public document to order them to refuse to submit data related to school violence within the jurisdiction to submit subjects, reply, confirmation, etc., the case holding that: (a) the Defendant’s act of refusing to submit the direction and supervision of school life records; (b) the legal nature of the guidance and supervision work related to the preparation of school life records; (c) the “Guidance and Management Guidelines for Preparation of School Records” (hereinafter “Direction”) (amended by the Ministry of Education No. 257, Jun. 29, 2012; hereinafter “Direction”) was legally effective; or (d) it is unclear that the Defendant’s act of refusing to submit data related to school violence under the Constitution and the need to be deemed unlawful.

Articles 13(1) and 37(2) of the Constitution of the Republic of Korea; Article 123 of the Criminal Act; Articles 17(1), 21 of the Act on the Prevention of and Countermeasures against School Violence; Articles 6, 25, 30-6, and 30-7 of the former Elementary and Secondary Education Act (Amended by Act No. 11690, Mar. 23, 2013); Article 56 of the State Public Officials Act; Articles 3 and 27 of the former Local Education Autonomy Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 167, 171, and 171-2 of the same Act; Article 35 of the former Local Autonomy Act (Amended by Act No. 11690, Mar. 23, 2013; Act No. 12135, Feb. 13, 2013; Act No. 1215, Jan. 24, 2013>

Defendant

Kim Tae-hun et al.

Law Firm 000,000

The defendant shall be innocent.

The summary of this decision shall be published.

1. Facts charged;

(a) Status of the defendant;

On July 1, 2010, the Defendant was appointed to the Superintendent of the Provincial Office of Education of Jeollabuk-do, and on June 4, 2014, the Defendant was elected again at the Superintendent of the Provincial Office of Education of Jeollabuk-do from July 1, 2014 to July 1, 2014, the Superintendent of the Provincial Office of Education, which is an executive agency for education and arts affairs of Jeollabuk-do, and has overall control over administrative affairs concerning education and arts, such as direction and supervision of public officials belonging to the Office of Education of Jeollabuk-do

B. The background and progress of the instant case

1) Amendment of the Ministry of Education, Science and Technology to the Guidelines for Preparation and Management of School Records

On January 27, 2012, the Ministry of Education, Science and Technology (hereinafter referred to as the "Ministry of Education on March 23, 2013") amended the Guidelines for the Preparation and Management of School Records by Ordinance of the Ministry of Education No. 239 to record measures to be taken against aggressor students of school violence in school life records referred to in each subparagraph of Article 17(1) of the Act on the Prevention of and Countermeasures against School Violence in order to use them as data for life guidance and higher school admission, and the main contents thereof are as follows:

A. The statement of change, expulsion from school, or psychological treatment, suspension of attendance for not more than ten days, prohibition of contact, intimidation, retaliation, and retaliation, and class replacement in the column of the special engineer of the “school record” contained in the text. B. The data on aggressor students recorded in the preservation period of school records shall be preserved for five years after graduation at elementary schools and middle schools, and the high schools shall be preserved for ten years after graduation.

On June 29, 2012, the Department of Study re-amended the “Guidelines for the Preparation and Management of School Records” by the Curriculum Directive No. 257, and re-amended the “Guidelines for the Preparation and Management of School Records” in the case of high schools, as in the case of elementary schools and middle schools, from “10 years after graduation” to “5 years after graduation” (hereinafter “instant Directive”).

2) Anti-insus such as guidelines for its own guidance on the Guidelines for Labeling at the Office of Education of Jeollabuk-do.

Accordingly, the Defendant, in violation of the principle of prohibition of double punishment under Article 13 of the Constitution, and the right to self-determination, which is a fundamental right under the Constitution, of aggressor students, is restricted to the curriculum department’s instructions without any legal basis in violation of Article 37 of the Constitution, and it is not desirable to implement educational policies as well as the minimum infringement principles of fundamental rights. On March 26, 2012, the lower court established the basic policy of the Office of Education of Jeollabuk-do, which revised the curriculum department’s guidelines by “where school violence measures against aggressor students to be entered in the school register are decided by the court as a criminal offense” at the extended meeting of the Office of Education of Jeollabuk-do.

On August 20, 2012, the Defendant had a full-time type of college admission from time to time, and issued its own amendment policy on the preparation and management of school life records to elementary, middle, high schools, and special schools within the jurisdiction through a public letter in the name of the Office of Education of Jeollabuk-do, stating the Guidelines for Guidance on Records of Students with Violence in Schools. The main contents are as follows:

(a) Table A in the main sentence: A student whose judgment has been rendered by the court as a criminal offense; (b) the method of entering: the output of school records and the relevant details; (c) the officer of the Human Rights Department, the assistant principal, or the principal of the school is managed at the external expense; and (d) the student is discarded upon graduation. Information disclosure shall, in principle, not be provided to the outside without the consent of parents and the student himself

(iii)the primary correction order and the primary specific audit process;

On August 21, 2012, the Department of Education issued a corrective order to the Defendant and the Office of Education of Jeollabuk-do to the effect that “(i) immediately cancel the subject and method of entry of school life records guidance at the Office of Education of the Republic of Korea, and (ii) after the implementation of the guidance to enter school violence students in school life records by August 22, 2012, the Ministry of Education issued a corrective order to the Ministry of Education and Human Resources Development by August 23, 2012.” However, the Defendant’s refusal to comply with the order, on August 24, 2012, on the ground that the above “information on the guidelines for entry” sent by the Office of Education of the Province of Jeollabuk-do was in violation of the Elementary and Secondary Education Act, Regulations on the Preparation and Management of School Life Records, Regulations on the Preparation of School Life Records, and Guidelines for the Preparation and Management of School Life Records” (hereinafter referred to as “the Specific Audit and Inspection of the Office of Education of Jeollabuk-do”).

On September 3, 2012, when the first specific audit of the curriculum department is in progress, the Defendant issued a new statement to the effect that “In relation to the request for the submission of audit data by the Superintendent of the Office of Education of Jeollabuk-do, it may not be submitted as the direction of the Superintendent of the Office of Education of Jeollabuk-do in relation to the request for the submission of audit data on school records, and the disciplinary authority of the teachers is known once again to the Superintendent of the Office of Education.” On September 5, 2012, the Defendant issued a new statement to the effect that the question of the responsibility for disciplinary action, etc. due to the refusal of the submission of specific audit data by the curriculum department from the principals of the schools in the jurisdiction of all the schools within the jurisdiction of Jeollabuk-do, as the title “regution of the matters to be transmitted to the Superintendent of the Office of Education of the Office of Education related to the Entry of School Records,” and that “The authority of the teachers’ disciplinary authority to the Superintendent of the Office of Education is emphasized once again.”

On October 16, 2012, the Department of Education pointed out that the results of the first special audit conducted around October 16, 2012, ① improper management of affairs related to the entry of school violence aggressor students' school records, ② improper management of official documents related to school violence aggressor students' school records, ③ refusal to enter school violence aggressor students' school records, ④ refusal to submit audit data, ④ interference with audit, and the defendant demanded that the relevant public officials make a request for disciplinary decision or request for disciplinary decision.

C. Abuse of official authority and obstruction of use

(i)the second specific audit and the defendant's refusal to submit data;

On December 5, 2012, from around December 14, 2012 to around December 14, 2012, an additional audit implementation plan to check the actual condition and current status of the preparation of school life records of high schools, etc. (hereinafter referred to as “second specific audit”) was notified by the Governor of the Provincial Office of Education of Jeollabuk-do and its jurisdiction. The Defendant, at the publicity office of the Office of Education of Jeollabuk-do, located in the Jeonsan-si ( Address omitted), Jeonsi-si, Seoul, on December 5, 2012, issued an additional audit plan to check the actual condition and current status of the preparation of school life records of high schools, etc. (hereinafter referred to as “second specific audit”), the Defendant bears all the responsibility for responding to the audit and inspection even if it begins from the date of the last audit and inspection, as in the name of the Superintendent of the Provincial Office of Education and the Superintendent of the Provincial Office of Education, including the name of the 20th Office of Education and the name of the 215th Office of Education.

The direction of the superintendent of the Office of Education in relation to the specific audit ( December 4, 2012) of the attached Table in the attached Table in the main text shall be observed as follows in compliance with the direction of the superintendent of the Office of Education. The superintendent of the Office of Education shall not respond to all inquiries and requests for data that may know the details of school violence, aggressor students, resolution on disciplinary action, etc.

The public officials belonging to the Office of Education, including the Director of the Education Bureau of Jeollabuk-do, the Director of the Education Bureau of the Office of Education, the Director of the Human Nature Health Department, school education and school inspector in charge of secondary education, etc., are not required to submit audit data (general officer-6152), such as the results of meetings of the Committee on Countermeasures against Violence by School, etc. on December 4, 2012. On December 5, 2012, the defendant refused to submit audit data (specific audit group-1) from the specific audit group of the curriculum department (specific audit group) and refused to submit them. On December 12, 2012, 200, the head of the Education Office of Jeollabuk-do, the Director of the Education Bureau of the Office of Education, the Director of the Education Department, the Director of the Human Nature Health Department, and the Superintendent of the Educational Institution in charge of secondary education, etc., the head of the Office of Education, the head of the Education Office, the head of the Education Office, etc. refused to submit audit data, such as a written reply.

2) The defendant's refusal to submit audit data is illegal and unjust.

(A) Nature of work for the preparation and management of school records

According to the provisions of the former Elementary and Secondary Education Act, the former Higher Education Act (amended by Act No. 11690, Mar. 23, 2013); and the Enforcement Decree thereof (amended by Presidential Decree No. 24423, Mar. 23, 2013) concerning school life records, where a student transfers between Cities/Dos or between national schools and public and private schools, it is necessary to systematically and uniformly manage school life records. Where a middle school student enters a high school located in another City/Do, the school life records shall be reflected in high school entrance screening. Since a high school student’s school life records are used as materials for school entrance screening of universities under the direction and supervision of the relevant City/Do Office of Education, the affairs related to the preparation of school life records conducted by the head of the relevant school is deemed to be affairs of the nature to be handled uniformly for the overall interest of the nation, and thus, the affairs related to the guidance and supervision of school life records conducted by the head of a national, public and private school constitutes affairs delegated to the Superintendent of the Provincial Office of Education.

(b) Obligations to cooperate under law with respect to the submission of specific audit data by the Department of Curriculum;

According to Articles 167, 171, and 171-2 of the former Local Autonomy Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) which applies mutatis mutandis under Article 3 of the Local Education Autonomy Act, the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes and faithfully perform their duties.” According to Articles 167, 171, and 171-2 of the former Local Autonomy Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply), the Superintendent of the Provincial Office of Education may not only delegate his/her duties, but also allow violations of Acts and subordinate statutes of autonomous affairs. The Administrative Audit Regulations (amended by Presidential Decree No. 2425, Mar. 23, 2013; hereinafter the same shall apply) on local governments prepared pursuant to delegation of Article 171-2(3) of the former Local Autonomy Act (amended by Act No. 1111690, Mar. 1, 20, 20120, etc.)

Therefore, considering the details, form, legislative intent, etc. of the relevant laws and regulations on audit procedures, a public official belonging to the Office of Education of a City/Do subject to audit bears the duty to cooperate with the Minister of Curriculum or the person performing audit activities, and barring any special circumstance, an order to refuse to submit a specific audit data issued to a public official under his/her jurisdiction who is a superior official of the office of education to comply with the direction and supervision of the superintendent of education, is illegal and unjust.

(C) Examining the Defendant’s assertion regarding the Juvenile Act, Personal Information Protection Act, etc.

In addition, Article 70 of the Juvenile Act, various provisions of the Personal Information Protection Act, and Article 21 of the Act on the Prevention of and Countermeasures against School Violence, etc., which have caused the defendant to violate the Constitution or to raise problems such as the compatibility of the current law and system, are all applicable to the request for submission of the specific audit data of this case to the Office of Education of Jeollabuk-do and schools affiliated to the jurisdiction, and it cannot be viewed as a justifiable ground for refusal, such as submission of data.

D. Conclusion

Therefore, the Defendant made public officials belonging to the Office of Education of Jeollabuk-do and its affiliated 27 principals do not cooperate in the request for the submission of specific audit data, answers, confirmations, etc. by abusing official authority by commissioning the exercise of official authority that belongs to the general duties of the Superintendent of the Office of Education of Jeollabuk-do and issuing instructions on illegal and unjust matters.

2. Judgment on the violation of the principle of an indictment only

The defendant and his defense counsel asserted that the part of the above facts charged with "the background and progress of the case" should be clearly stated and the defendant's public officials belonging to the office of education in Jeollabuk-do using disciplinary authority to make it possible to make sure that the public officials belonging to the office of education in Jeollabuk-do would have the right to impose disciplinary actions to refuse to submit all audit data during a specific audit period, and that the "illegal and unjustness of the defendant's order to refuse to submit audit data" would cause a judge to have a conviction, and thus, the method of the written indictment in

In addition, the contents of the statutes on criminal procedure and its amendment, the basic purport of the principle of an indictment only, the principle of an indictment only, and the fact that the Criminal Procedure Act adopts the principle of a party-oriented trial and the principle of direct trial and the principle of evidence trial, etc., the principle of an indictment only shall be deemed as an institutional device with the aim of realizing the above principle of criminal procedure from the stage of prosecution. However, since the principle of an indictment only has to be inevitably restricted upon another request, which is the necessity of specifying the facts charged, the allowable scope and limit of the facts charged or expression should be established on the line in harmony with both purport and spirit. Preparatory proceedings are mainly aimed at realizing the principle of trial priority and concentrated trial, it is desirable that the defect in the procedure of an indictment including the violation of the principle of an indictment only should not proceed with the proceedings based on illegal indictment by examining this stage. Since the system of an indictment only under the Criminal Procedure Act reflects the developmental nature and economic ideology of the litigation procedure as an ex officio element to realize the substantial truth, it should be determined by the court’s decision on the contents of the prosecution.

The summary of the facts charged in this case is that the defendant sent a public document to the Office of Education of the Jeollabuk-do Office of Education of the Department of Education and the second specific audit to check the actual status and status of the preparation of school life records of high schools, etc. within the jurisdiction of the department of education in Jeollabuk-do to allow public officials belonging to the Office of Education of Jeollabuk-do and its affiliated 27 principals to refuse to submit all audit data related to school violence in order to ensure that public officials belonging to the Office of Education of the Office of Education of Jeollabuk-do and its affiliated 27 principals do not cooperate with the request for specific audit, reply,

As such, the crime of abusing authority and obstructing another’s exercise of rights as stated in the facts charged is a constituent element of the Defendant’s abuse of official authority, and thus, determination as to whether the Defendant’s act of instruction is unlawful is bound to be stated. In order to state whether the Defendant’s act of instruction is unlawful, it is necessary to state in the Department of Education the developments leading up to the amendment of the Guidelines for the Preparation and Management of School Records Act, the position of the Defendant and the Office of Education of Jeollabuk-do, the background leading up to the establishment and management of the instant school life records, the nature of the affairs related to the preparation and management of the instant school life records, and the prosecutor’s office’s ground that the Defendant’s act of instruction was unlawful, such as the duty to cooperate under the Acts and subordinate statutes concerning the submission of specific audit data. Therefore

Therefore, we cannot accept this part of the defendant and defense counsel's assertion that the contents of the charge in this case violate the principle of an indictment only.

3. Determination on whether the crime of abusing authority and obstructing another’s exercise of rights is established

A. Both arguments and the arrangement of issues

The grounds for finding the facts charged of this case guilty are as follows. ① The Defendant issued a self-revision policy to reduce the application of the above directives to schools within the jurisdiction, and issued orders to refuse to submit all audit data related to the school violence in high schools within the jurisdiction, etc., by abusing the direction of this case, which requires the autonomous committee on countermeasures against aggressor students of school violence as stipulated in each subparagraph of Article 17(1) of the Act on the Prevention of and Countermeasures against School Violence. ② The head of a school provides that the affairs concerning the preparation of school life records conducted by the head of a national, public, and private school shall be deemed to be affairs of the nature to be handled uniformly for the benefit of all citizens, and thus, it is difficult to view that the public official's direction and supervision affairs concerning the preparation of school life records conducted by the head of a national, public, and private school are delegated to the Superintendent of the Provincial Office of Education, and thus, it is also possible for the head of a department of education to violate the law of autonomous affairs, and that it is difficult for the Defendant to submit them to the audit data ex officio and inspection (3).

The Defendant and his defense counsel asserts as follows: (i) if the Defendant’s instruction is illegal, this constitutes an unlawful order of superior and thus, the public officials belonging to the Office of Education and the principals of the first-class high school do not have a duty to obey it; (ii) under Article 171-2(3) of the former Local Autonomy Act and the administrative audit regulations on the Gu local governments, it is possible to refuse to comply with a request for audit data if justifiable grounds exist; (iii) under Article 30-6 of the Elementary and Secondary Education Act, the head of a school may not provide school life records to a third party without the consent of the students and their parents; and (iv) even if it is provided, there is discretion to impose restrictions on the request for submission of school life records; (iii) under Article 30-7 of the same Act, it is difficult to view that the Defendant’s demand for submission of audit data by the Ministry of Education to inform and supervise the Defendant of the above matters; and (iv) the Defendant’s demand for the submission of audit data by the Ministry of Education to the contrary to the principle of Justice’s unconstitutionality.

The issues are summarized as follows through the facts charged in this case and the arguments on both sides. In other words, whether the Defendant’s instruction to the public officials of the Office of Education and the principals of the school to refuse to submit audit data on the audit of school violence in the school department was exercised ex officio, ② whether the Defendant’s above instruction was illegal, ③ whether the Defendant’s act of ordering the public officials belonging to the Office of Education and the heads of the 27 principals of the Jeollabuk-do Office of Education interfered with or did not have any obligation to interfere with the exercise of rights by the public officials belonging to the Office of Education and the heads of the 27 principals due to the Defendant’s above instruction, ④ whether the Defendant’

B. Relevant provisions

Attached Form 2 shall be as listed in attached Table 2.

C. Relevant legal principles

The burden of proving the existence of an intentional act, which is a subjective element of the crime alleged in the indictment, is also imposed on the prosecutor, and the conviction should be based on the evidence with probative value that leads the judge to feel true that the facts charged are beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2015Do5355, Oct. 29, 2015).

In relation to the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “an abuse of authority” means a public official’s unlawful exercise of matters belonging to general authority and authority, namely, a formal and external exercise of authority, which means a case where the public official appears to have committed an act other than legitimate authority. The criteria for determining whether an abuse constitutes an abuse should be determined by taking into account all the elements, such as the purpose of the public official’s act of performing his/her duties, necessity and reasonableness when considering the situation where the act was committed, and whether the exercise of authority satisfies the legal requirements permissible (see, e.g., Supreme Court Decision 2010Do13766,

The general authority of the crime of abusing authority and obstructing another’s exercise of rights does not necessarily require that the exercise of authority and obstructing another’s exercise of rights entails legal coercion, and if it is abused, it would be sufficient that the other party to the exercise of authority perform a non-legal act or interfere with the legitimate exercise of rights (see Supreme Court Decision 2013Do2444, Mar. 26, 2015,

The term “responsibilities” in the crime of abusing authority and obstructing another’s exercise of rights refers to legal obligations, and a simple psychological obligation or moral obligation does not constitute such obligations (see Supreme Court Decision 90Do2800, Dec. 27, 1991, etc.).

When the crime of abusing authority and obstructing another’s exercise of rights is completed, it is insufficient to say that there was an act that interferes with the victim’s non-obligatory act or right. It is necessary that the victim’s non-obligatory act has been completed or that the result of interference with the victim’s right has occurred (see Supreme Court Decision 75Do2665, Oct. 10, 1978, etc.).

A criminal intent as a subjective constituent element of the crime of abusing authority and obstructing another’s exercise of rights includes the perception that the abuse of authority is an abuse of authority, and in a case where there is no perception of abuse of authority, it does not constitute a crime since the beginning of the crime of abusing authority and obstructing another’s exercise of rights, unless there is a perception of illegality (see, e.g., Supreme Court Order 92Mo29, Jul. 26, 1993).

On the other hand, if the control of authority over public officials elected by the citizens’ direct election through the local education autonomy election is easily recognized through the crime of abusing authority and obstructing another’s exercise of rights, it may cause excessive intervention and abuse of the penal authority, and may cause the chilling of local autonomy and democracy, and may cause new conflicts within society, so the determination of whether to recognize the crime of abusing authority and obstructing another’s exercise

D. Determination as to whether the Defendant’s instant order was exercised ex officio

As the Superintendent of the Provincial Office of Education of Jeollabuk-do, the Defendant has the general authority to direct and supervise public officials under his/her jurisdiction pursuant to Article 27 of the Local Education Autonomy Act, and has the authority to direct and supervise public and private schools pursuant to Article 6 of the Elementary and Secondary Education Act. Therefore, it is reasonable to view that the Defendant’s instruction that the public officials under his/her jurisdiction and the principals of the schools in his/her jurisdiction should not submit audit data on school violence in relation to the specific audit of the school department

Meanwhile, Defendant and defense counsel asserted that, in the event that Defendant’s instruction is unlawful, the public officials belonging to the Office of Education and the principals of the first-class high schools do not constitute a crime of abuse of authority since they do not have a duty to obey it. However, in the crime of abusing authority and obstructing another’s exercise of rights, “the abuse of authority” refers to the case where a public official unlawfully exercises matters belonging to the general authority and authority, that is, in a formal and external form, conducts an act other than legitimate authority. Since Defendant’s instruction is exercised in the form of public inquiry with the superintendent of education and has the form of performing his/her duties formally and externally, it does not accept this part of Defendant and defense counsel’s allegation that

E. Determination as to whether the Defendant’s instant instruction was unlawful

Article 56 of the State Public Officials Act provides that “All public officials shall observe Acts and subordinate statutes and perform their duties in good faith.” Furthermore, according to Articles 167, 171, and 171-2 of the former Local Autonomy Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same), which applies mutatis mutandis pursuant to Article 3 of the former Local Education Autonomy Act, an auditor of the Office of Education of City/Do Office of Education is not limited to the delegated affairs of the relevant agency, but is allowed for violations of Acts and subordinate statutes of autonomous affairs. In addition, the administrative audit regulations on the former local government prepared pursuant to the delegation of Article 171-2(3) of the former Local Autonomy Act provide that ① the Minister of Education’s authority to request attendance and answers, to submit relevant documents, books, goods, etc. (Article 11(1)1 and 2), ② the authority to ask questions from the person performing auditing activities, to ask questions to the Minister of Education (Article 171(3) and answers), and answers, respectively.

Considering the details, form, legislative intent, etc. of the relevant laws and regulations on audit procedures, it is reasonable to interpret that public officials belonging to the Office of Education of City/Do subject to audit bears the obligation to cooperate in audit activities of the Minister of Education or the persons performing audit activities, and the Defendant’s instant instruction that refuses to submit audit data contrary to such legal obligations is illegal.

The defendant and his defense counsel asserted that the request for the submission of audit data of the Ministry of Education is unlawful because it conflicts with the relevant Acts and subordinate statutes. However, Article 30-6 (1) 1 of the Elementary and Secondary Education Act explicitly provides that "Where an administrative agency with the authority to supervise and audit schools may provide school life records," and Articles 30-2 and 70 of the Juvenile Act do not directly apply to the request for the submission of audit data of the Ministry of Audit and Inspection of the Subjects of this case, which is related to the disclosure of records and contents of juvenile protection cases, and Article 15 (1) 3 of the Personal Information Protection Act provides that "it is inevitable for the public institution to perform its duties prescribed by Acts and subordinate statutes, etc.," and Article 18 (2) 2 of the same Act provides that "where the public institution can provide personal information, it is difficult to see that the request for the submission of audit data of the Ministry of Education is in violation of the Personal Information Protection Act, 4. Article 21 of the Act on the Prevention of School Violence and the Prevention of Divulgence and Prevention of Information Act."

F. Determination as to whether the Defendant’s instant instructions interfered with the exercise of rights by public officials belonging to the Office of Education of Jeollabuk-do and 27 principals, or caused them to perform an act without any obligation

① Notwithstanding the fact that the Defendant had general supervisory authority over schools within the jurisdiction of the Jeollabuk-do Office of Education and public officials belonging to the Office of Education, ② In the event that the Defendant has already distributed policies to reduce the content of the instant directives to schools within the jurisdiction, the curriculum division was issued to check whether or not the Defendant’s establishment of school life records in accordance with the instant directives was made, the Defendant issued orders to the schools within the jurisdiction in the form of official questioning. ③ In full view of the fact that the principal of the High School at the time of the said audit, Nonindicted 2, the principal of the Namsan High School, Nonindicted 3, the principal of the Namwon High School, Nonindicted 4, the principal of the Namwon High School, Nonindicted 5, the principal of the Hanwon High School, Nonindicted 6, the principal of the Jeonwon High School, Nonindicted 8, the principal of the Jeonju High School, Nonindicted 10, and Nonindicted 11, who had already been in compliance with the direction of the Defendant’s Office of Education on the matters of school violence, the head of the Seoul High School’s Office of Audit and Inspection.

① However, in the course of the instant audit and inspection, the head of the relevant high school within the jurisdiction of Jeollabuk-do issued a warning that it would be at a disadvantage such as administrative fines or disciplinary action when refusing to submit audit data. As such, each of the principals of the high schools within the jurisdiction of Jeollabuk-do could have known the duty to submit audit data, and that the guidelines of the curriculum department and the guidelines of the defendant could have conflict. ② Under the above circumstances, Nonindicted 12 and the principal of the Kim Young-young High School and Nonindicted 14 and Nonindicted 15 of the instruction of the head of the education department of the Nam-do High School, which are not included in the instant facts charged, did not follow the Defendant’s guidelines, rather than based on the Defendant’s guidelines, or “It is difficult for the Prosecutor to accept the instructions of each of the instant high school education officials by taking account of the fact that there was no possibility that the education official was at least 1 or 15 of the instruction of each of the instant public officials at the time of signing and sealing-do.”

G. Determination as to whether the Defendant’s instant instruction constitutes abuse of authority and obstruction of exercise of rights at the time of the Defendant’s act of instructing the Defendant

In all cases where the act of duties is deemed illegal, it cannot be deemed that the act of duties constitutes abuse of authority under the Criminal Act, and the determination should be made by taking into account all the elements such as the purpose of the act of duties and the necessity and reasonableness of the situation where the act of duties was performed. Considering the following circumstances, it is insufficient to view that the Defendant’s act of ordering the instant case constitutes abuse of authority or the Defendant’s perception of abuse of authority at the time of the

1) As to the instant directives, the Defendant: (a) deemed that guidance and supervision affairs on the preparation of school life records were autonomous affairs; and (b) implemented a correction policy that reduces the application of the said directives; and (c) as the curriculum division conducts a specific audit, the audit of the autonomous affairs is deemed not to violate statutes; and (d) accordingly, the Defendant decided to refuse to submit audit data on school violence matters.

The Supreme Court's decision that "the guidance and supervision of the preparation of school life records shall be conducted in a uniform manner for the benefit of the whole of the people, and it does not always constitute the delegated affairs of an agency, but it does not always mean that the classification of autonomous affairs and delegated affairs of an agency is the content of the relevant statute itself (see, e.g., Supreme Court Decision 2012Da220, Sept. 10, 2015). On February 27, 2014, the Supreme Court issued by the defendant against the Director of the Curriculum pursuant to the Local Autonomy Act, etc., in relation to a lawsuit seeking revocation of ex officio revocation of the disposition (the lawsuit seeking revocation of the above disposition on August 24, 2012 by the Director of the Curriculum on the correction and revocation of the guidelines of the defendant on August 24, 2012) that "the guidance and supervision of the supervisory authority on the preparation of school life records constitutes the delegated affairs."

2) Furthermore, if there is a violation of a statute in relation to autonomous affairs, the auditors of the curriculum department are possible.

However, the Defendant determined that the instant directives, which had the students enter school violence in the student register, were unconstitutional because they violated the principle of statutory reservation, the violation of the principle of supremacy, the violation of the principle of prohibition of double punishment, the violation of the principle of prohibition of excessive punishment, and the principle of systematic legitimacy. At the time, there was a problem of unconstitutionality by academic circles, etc. for the foregoing reasons (the Defendant was consulted with the same purport by law professors, etc.) and the other Office of Education, which had concerns over the unconstitutionality of the instant directives, seems to have also been against the application of the instant directives.

Meanwhile, on April 28, 2016, the Constitutional Court rendered a decision to dismiss the constitutional complaint filed on the ground that the instant order violated the principle of statutory reservation and the principle of excessive prohibition (the Constitutional Court en banc Order 2012Hun-Ma630 Decided April 28, 2016). However, the said decision was rendered a decision to determine the unconstitutionality of the amended order that reduces the preservation period of school violence records due to the amendment of the curriculum book as seen below. At the time of the instant order prior to the said decision, it appears that the instant order was in an unclear situation as to whether it has legal effect or whether it has no legal effect due to the violation of the Constitution.

3) The instant order, as amended on June 29, 2012, was amended by the following: (a) the preservation period for school life records that can be used as admission screening data for higher schools was changed from 10 to 5 years; (b) on February 15, 2013, some of the measures taken by the Act on the Prevention of and Countermeasures against School Violence (paragraphs 1, 2, 3, and 7) were changed to be deleted simultaneously with the graduation of the relevant student; and (c) on January 16, 2014, some of the measures taken (paragraphs 4, 5, 6, and 8) were to be deleted after two years from the date of graduation of the relevant student; (d) the amendment was made in sequence to remove the school life records in consideration of the degree of reflection and positive changes of the relevant student; and (e) the amendment was made in order to reduce the unconstitutional elements asserted by the Defendant.

4) Defendant and public officials belonging to the Office of Education of Jeollabuk-do also instruct and supervise the preparation of student register in accordance with the above instructions of the above department of subjects as amended from around 2013. A disciplinary resolution was made on the affiliated teachers in accordance with the Supreme Court’s decision (Supreme Court Decision 2012Hu220, etc.) regarding the cancellation of an order to perform duties, etc., and the Defendant stated in this court that the instant orders will perform duties in accordance with the Supreme Court and the Constitutional Court’s decision.

5) The Defendant expressed his view that the instant directives conflict with the human rights of students and committed the instant instruction, and some teachers seem to have refused to submit audit data with a good faith to assist the Defendant in the foregoing view.

6) On October 16, 2012, the Defendant sent the official document stating that “In relation to the request for submission of audit data by the Ministry of Education, Science and Technology, it may not be submitted as the direction of the Superintendent of the Office of Education of Jeollabuk-do, and the disciplinary authority of teachers shall be known once again emphasizing that the Superintendent of the Office of Education is with respect to the request for submission of audit data by the Department of Education.” However, the above content appears to the purport that the Defendant would be responsible for the disciplinary guidance against the refusal to submit audit data by the Department of Education, and it seems that there is no disadvantage to the principal, etc. who did not comply

7) The Defendant: (a) stated the instant directives of the Department of Curriculum in the school life register that he/she could receive a final and conclusive judgment on a criminal offense; (b) instructed a student who was given a final and conclusive judgment on a criminal offense to reduce the application of the instructions to destroy records; and (c) exercised ex officio authority by specifying the scope of his/her deemed necessary to refuse to submit only data on school violence matters; and (d) it appears that the Defendant made efforts to have the reasonableness

Ultimately, in a situation where the legal nature of the direction and supervision affairs concerning the preparation of school life records of the superintendent of education, whether the instant direction of the school department is legally effective, or whether it is null and void in violation of the principle of excessive prohibition under the Constitution, etc., the Defendant issued guidelines for revision to reduce and enforce the instant direction under the pretext of protecting the human rights of students, and ordered the Defendant to refuse to submit only some materials concerning school violence among the request for submission of audit and inspection data of the curriculum department, based on the judgment that the audit and inspection of the curriculum department was unlawful. In light of the above legal principles, the Defendant’s duty purpose, necessity, and reasonableness, which can be known through these circumstances, should be determined carefully in light of the fact that the Defendant’s act of refusing to submit audit and inspection data of this case constitutes abuse of authority or that there was a perception that the Defendant abused authority at the time.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is announced in accordance with Article 58(2) of the Criminal Act. It is so

[Attachment 1] Status of Refusal to Submit Specific Audit Data: Omitted

[Attachment 2] Relevant Provisions: omitted

Judges Jeong-ho