(영문) 서울고등법원 2004. 8. 20. 선고 2003노3391 판결

However, the execution of each of the above punishment against the Defendants shall be suspended for two years from the date this judgment became final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant 2

(i)misunderstanding of facts;

The court below erred by misunderstanding the facts against the rules of evidence and thereby affecting the conclusion of the judgment as follows.

㈎ 공소외 8이 수사기관에서 한 진술은, 고령과 장기간 반복하여 계속된 강도 높은 조사로 인하여 심신이 쇠약해진 상태에서 이루어진 것으로 특별히 신빙할 수 있는 상태에서 이루어진 것이라고 볼 수 없어 증거능력이 없고, 피고인들과의 통화 시기, 통화 내용 등에 관하여 일관성 없이 서로 모순되거나 객관적 사실과 부합하지 않는 등 전혀 신빙성이 없음에도, 원심은 공소외 8의 수사기관에서의 진술을 유죄 인정의 증거로 채택하였다.

㈏ 피고인이 비밀리에 진행되고 있던 대검찰청 중앙수사부의 원심 판시 공소외 9 수사 관련 정보를 알 수 있었다고 인정할 만한 아무런 증거가 없고, 가사 피고인이 위 정보를 알게 되었다고 하더라도, 검찰총장의 특명으로 서울지방검찰청 남부지청에 설치된 특별감찰본부는 서울지방검찰청 검사장인 피고인의 직무와는 아무런 관계가 없고, 당시 서울지방검찰청에 구속된 국가정보원 경제단장 공소외 10은 공소외 9 사건과는 무관한 사건으로 구속되었을 뿐 아니라 공소외 9의 배후세력으로 지목된 적도 없어서, 피고인이 위 정보를 서울지방검찰청 검사장의 직무와 관련하여 알게 되었다고 할 수 없는 것임에도 불구하고, 원심은 아무런 증거도 없이 피고인이 공소외 9 수사 관련 비밀을 알아내었다고 인정하였고, 나아가 위 특별감찰본부의 설치와 공소외 10의 구속을 근거로 공소외 9 수사 관련 정보가 피고인 2의 서울지방검찰청 검사장으로서의 직무와 관련이 있다고 인정하였다.

B. Doz.

The lower court erred by misapprehending the legal doctrine as follows, thereby adversely affecting the conclusion of the judgment.

㈎ 검사는 공소외 9 수사 책임자인 피고인 1을 공무상 비밀누설죄의 신분자로, 피고인 2는 신분자인 피고인 1의 범행에 가공한 비신분자로 공소를 제기하였는데, 원심은 신분자인 피고인 1에 대하여는 전부 무죄를 선고하면서도, 피고인 2에게는 공소사실에 적시되지도 않은 별도의 신분자의 지위가 인정된다는 이유로 공소장 변경 절차도 없이 유죄를 인정함으로써, 불고불리의 원칙을 위배하였다.

㈏ 이 사건 공소사실에는 피고인들이 공소외 9 수사 관련 정보를 언제 어떻게 알아내고, 어떤 방법으로 누설을 공모하였다는 것인지를 포함한 범죄 구성요건의 중요부분이 전혀 특정되어 있지 않아, 공소사실이 적법하게 특정되었다고 볼 수 없음에도, 원심은 이를 바로 잡지 않고 그대로 유죄의 판단을 하였다

㈐ 대검찰청 중앙수사부의 공소외 7에 대한 내사계획, 수사임박 사실, 조사 방침, 조사결과 등은 ‘법령에 의한 직무상 비밀’로 볼 수 없고, 그 누설에 의하여 위협받는 국가의 기능도 존재하지 않기 때문이므로, 위와 같은 내용은 공무상 비밀누설죄의 비밀에 해당하지 않음에도 원심은 위 사항을 공무상 비밀누설죄의 비밀에 해당한다고 판단하였다.

【Unjustifiableness

In light of the various sentencing conditions of this case, the sentence of the court below's decision that sentenced two years of suspended sentence to Defendant 2 in August is too unreasonable.

(b) Prosecutors;

According to the evidence submitted by the prosecutor, although the facts charged that Defendant 1 disclosed confidential information related to the investigation of Nonindicted Party 1 and caused the prosecutor to perform an act without any duty by abusing official authority in relation to the internal investigation of the case, and the whole facts charged that the Defendants conspired and disclosed confidential information related to the internal investigation of Nonindicted Party 7, the court below found Defendant 2 guilty only of the facts charged that Defendant 2 disclosed confidential information related to the internal investigation of Nonindicted Party 7’s official duties, and the remaining facts charged against the Defendants are not guilty on the grounds that the remaining facts charged against the Defendants are insufficient to prove or leaked or that the disclosed information does not constitute confidential information in the course of official duties, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. As to the part concerning Defendant 1’s disclosure of official secrets related to Nonindicted 1’s investigation

(i) Summary of the facts charged

Defendant 1, from June 9, 199 to May 25, 2001, is serving as the Prosecutor General of the Supreme Prosecutors' Office and assisting the Prosecutor General, while performing duties to exercise overall control over prosecutory affairs of the prosecutor's office of each level;

At the end of January 2001, the Prosecutor General of the Supreme Prosecutors' Office located in Seocho-gu Seoul, Seocho-gu, Seoul, received a report from Nonindicted 3, who served as the secretary and the representative of Nonindicted 11, who is the second vice president of the Seocho-gu Office, the second vice president of the Seoul Prosecutor's Office, and received a request from Nonindicted 3 to the effect that it would be impossible for Nonindicted 1, who was aware of the fact that Nonindicted 1, who was under investigation at the outside of the Seoul Prosecutor's Office, was a criminal suspect of the crime of capital fraud in which he was under investigation, and who was in flight abroad, could not be detained in order for Nonindicted 1 to receive an investigation. As a result of confirmation on the seriousness of the above case from Nonindicted 12, who was in the outside director of the Seoul Prosecutor's Office, at that time, the prosecutor of the Seoul Prosecutor's Office, who was in the outside director of the Seoul Prosecutor's Office, submitted a report to the effect that "it is possible to investigate Nonindicted 1's secret investigation policy."

B. Judgment of the court below

㈎ 증거에 의하면, 2000년 11월 말에서 12월 초경에 (그룹명 생략)그룹이 1,200억 원대 무역금융 사기사건과 관련하여 금융감독원의 조사를 받은 사실이 언론에 보도되고 이를 토대로 검찰이 그 사건의 수사에 착수하였는데, 먼저 조사를 받고 나온 직원들로부터 분위기가 심상치 않다는 말을 들은 (그룹명 생략)그룹의 부회장 공소외 1은 2000년 12월 초경 공소외 11 등 여권 실세들과 친분이 두터워 많은 도움을 받을 수 있는 사람이라고 소개받아 알고 지내던 공소외 2에게 (그룹명 생략)그룹 사건의 수사에 관하여 알아봐 달라고 부탁한 사실, 공소외 2는 고향 선배인 공소외 13으로부터 일단 공소외 1이 외국으로 피신해 있는 것이 좋겠다는 말을 듣고 2000. 12. 8.경 공소외 1에게 이 말을 전하자, 공소외 1은 공소외 2에게 자신이 외국에 나가 있는 동안에 매제인 공소외 4와 상의하여 일을 처리하여 달라는 말을 남기고는 같은 날 일본으로 출국한 사실, 그 후 공소외 2는 공소외 11과 절친한 사이인 공소외 3에게 공소외 1이 일본으로 도피해 있는 사정을 말하면서 이를 해결해 달라고 부탁하였고, 공소외 3은 검찰 간부를 통하여 알아보겠다고 대답하고 공소외 11에게도 이를 상의하여 도와줄 수 있으면 도와 주는 것이 좋겠다는 대답을 들은 후, 2000년 12월 중순경 공소외 2를 통하여 공소외 4에게 경비를 요구하여 2억 5,000만 원을 전달받은 사실, 공소외 3은 2001년 1월 말경 당시 대검 차장검사로 재직중이던 피고인 1에게 공소외 1이 서울지검의 (그룹명 생략)그룹 사건에 대한 조사를 피하기 위하여 일본에 가 있는바, 국내로 들어와서 조사를 받도록 하려고 하는데 불구속으로 처리되는 것이 가능한지를 알아봐 달라고 부탁한 사실, 피고인 1은 공소외 3의 전화를 받은 후 (그룹명 생략)그룹 사건의 수사를 담당하고 있던 서울지검 외사부의 공소외 12 부장검사에게 전화하여 위 사건의 사안 내용이 어떠하냐고 물었고, 공소외 12는 (그룹명 생략)그룹 사건의 주임검사인 공소외 14로부터 그 동안 보고받아 파악하고 있던 내용대로 주임검사의 생각에 크게 엄벌할 정도의 중한 사안은 아니라고 한다고 답변한 사실, 공소외 3이 피고인 1에게 위와 같이 부탁 전화를 하고 나서 이틀 쯤 후 다시 위 피고인에게 전화하여 공소외 1 건에 대하여 묻자 위 피고인은 “조사받아도 되겠던데”라고 대답한 사실, 이에 공소외 3은 공소외 2에게 모든 정리가 되었으니 공소외 1이 국내에 들어와서 조사를 받아도 될 것 같다고 말하였고, 공소외 2는 일본에 가서 공소외 1에게 공소외 3의 말을 전달하고 2001. 2. 6. 공소외 1과 함께 귀국하였으며, 공소외 1은 며칠 뒤 서울지검에 자진 출석하여 조사를 받고 2001. 4. 3. 불구속 상태로 기소된 사실은 인정된다.

㈏ 그러나 증거에 의하면, (그룹명 생략)그룹 사건은 1999년 8월경부터 2000년 4월경까지 주식회사 (명칭 생략)이 홍콩에 위장 설립한 페이퍼컴퍼니로부터 물품을 수입하는 것처럼 가장하여 국내은행에 선대(선대)신용장을 개설하고 페이퍼컴퍼니가 선대 받은 약 1,200억 원을 주식회사 (명칭 생략)이 국내에 들여온 사건인바, 서울지검 외사부에서는 2000년 12월 초순 위 사건의 조사에 착수하면서 공소외 1 등 사건 관련자들의 출국금지조치를 취하려 하였으나 (그룹명 생략)그룹 부회장인 공소외 1은 이미 출국한 후였고 주식회사 (명칭 생략)의 전무 공소외 15는 잠적하였으며 사건의 내용이 무역금융 등에 대한 전문적인 지식을 요하는 것인 데다가 관련자들이 서로 책임을 미루는 등의 이유로 수사가 장기화되어 해를 넘기게 된 사실, 이 사건의 주임검사 공소외 14와 외사부장 공소외 12는 조사를 진행하면서 2001. 2. 3.경 선대신용장을 이용한 무역금융이 업계의 관행이라 하더라도 사기죄의 구성요건에 해당하며 위 무역금융을 기획하고 실행한 주식회사 (명칭 생략)의 전무 공소외 15와 부장 공소외 16은 그 방법이 편법임을 알고 있었으므로 그들을 기소해야 한다는 결론을 내렸으나, (그룹명 생략)그룹 부회장 공소외 1에 관하여는 그가 실무자들로부터 위 무역금융에 관한 보고를 받았는지, 어떤 내용으로 보고를 받았는지, 그러한 보고를 통하여 위 금융이 편법적인 수법이라는 것을 알고 있었는지에 대한 입증이 불충분하여 혐의 자체가 인정되기 어렵다고 판단하였던 사실, 위 주임검사와 외사부장은 2001년 2월 초경 서울지검장 공소외 17에게 (그룹명 생략)그룹 사건의 개요에 관하여 처음으로 보고하였고, 2001. 2. 26.에는 수사 결과 공소외 1은 대출서류나 내부 결재서류에 서명이 없고 전무 또는 부장의 간략한 구두보고만을 받았으며 경영경험이 일천해서 선대신용장을 이용한 대출구조를 이해하지 못하는 등 피의사실을 인정할 증거가 부족하여 혐의없음 결정을 하겠다고 보고하였으나, 위 서울지검장이 (그룹명 생략)그룹의 오너인 공소외 1 부회장을 불기소한다면 오해가 따를 수 있고 일반인이 납득하기도 어려우니 재검토하라는 지시를 한 사실, 이에 위 주임검사와 외사부장은 공소외 1에 대한 피의사실을 보강수사하여 비록 유죄판결에 대한 확신까지는 없었으나 그 확률은 반반이라고 생각하고 2001. 4. 3. 공소외 1을 불구속 기소하기에 이른 사실, 피고인 1이 2001년 1월 말경 공소외 12에게 전화로 문의한 내용은 (그룹명 생략)그룹 사건의 사안 내용이 어떠하냐는 것이었을 뿐 특별히 공소외 1을 언급하면서 구속, 불구속 등 신병처리방침이 어떠한지를 물은 것은 아니었고, 그 무렵의 수사상황으로서는 서울지검 외사부에서는 공소외 1은 물론이고 다른 관련자들에 대하여도 구속을 검토한 바는 없었던 사실도 역시 인정된다.

㈐ 위와 같은 인정사실에 의하면, 피고인 1이 공소외 12로부터 (그룹명 생략)그룹 사건에 관한 내용을 듣고 이를 공소외 3에게 전달할 당시 서울지검 외사부에서는 공소외 1의 구속 여부에 관한 방침을 세우기는 커녕 범죄 혐의의 인정조차 어렵다고 판단하고 있는 상태였고, 피고인 1이 공소외 12를 통하여 (그룹명 생략)그룹 사건에 관하여 알아보고 공소외 3에게 전달해 준 내용은 구체적인 수사결과나 공소외 1의 신병처리에 관한 결정이 아니라 단지 사안의 경중에 불과한 것이었으며, 더군다나 이러한 내용이 공소외 1에게 전달됨으로써 당시 수사를 피하여 외국에 도피해 있던 공소외 1이 귀국하여 검찰에 자진 출석하여 조사를 받게 되었던 것이므로, 이에 비추어보면 위 피고인의 위 행위로 인하여 수사의 보안 또는 기밀을 침해하여 수사의 목적을 방해할 위험이 있었다고 할 수 없으므로, 피고인 1이 (그룹명 생략)그룹 사건과 관련하여 공소외 3에게 알려 준 위 사실이 ‘법령에 의한 직무상 비밀’에 해당한다고 할 수 없다.

Therefore, this part of the facts charged against Defendant 1 constitutes a case where there is no proof of crime.

【Court Judgment of this Court

However, we cannot accept the judgment of the court below for the following reasons.

㈎ 인정사실

First, according to the statements made by Defendant 1 and Nonindicted 3 at the court of original instance, each of the statements made by Nonindicted 1, 2, and 4 at the court of original instance at the court of original instance, each of the statements made by Nonindicted 2, 3, 11, and 18 at the court of original instance at the court of original instance, and each of the statements made by Nonindicted 1, 2, 3, 11, and 18 at the court of Seoul District Court (case No. 1, Nov. 1, 202), Nonindicted 1, 2, 3, 4, 12, and 14 at each of the prosecutor’s statements made by Nonindicted 1, 2, 12, and 14 at the court of original instance, each of the statements made by Nonindicted 1, 2, 12, and 12 at the court of original instance at the court of original instance, each of the following facts can be acknowledged.

① Around May 1999 to January 2000, Nonindicted Party 1, a vice-chairperson of the Group, made a false statement of the financial statements for the year 1998 and the year 1999 by means of window dressing accounting, with a total of KRW 1,04.8 billion from financial institutions that did not know of the aggravation of the business situation (hereinafter “sub-accounting loan”) in the name of the Company (title omitted). Furthermore, from August 1999 to January 2000, Nonindicted Party 1, a vice-chairperson of the Group, made a domestic financial institution to open a cross-party loan (title omitted) by means of window dressing accounting, and made a loan of KRW 1,04.8 billion from the financial institutions that did not know of the aggravation of the business situation (title omitted) in the name of the Company (title omitted). Furthermore, from August 1, 199 to January 20, it was the method of bringing the domestic financial institution into the name of the Company 985,000.

Around May 200, after the filing of the Work on Group ( Group Name omitted), the financial institution, which opened the above prior L/C, identified the above prior L/C to the Financial Supervisory Service, and reported it to the Financial Supervisory Service, thereby starting an investigation into the Financial Supervisory Service. From the end of November 2000 to the first day of December, 200, the case of the above trade financial fraud was confirmed, and the media was reported, and the investigation was launched by the Ministry of Seoul District Public Prosecutor's Office outside the Seoul District Public Prosecutor's Office. At first, Nonindicted 1 was introduced as a person who could receive much assistance from the President's children at the beginning of December 200, and requested Nonindicted 2, who was aware of the fact that the atmosphere of the employees being investigated is not in mind, to request Nonindicted 1, a person who could receive much assistance from the President's children at the beginning of December 200, and requested Nonindicted 1, a person who was aware of the fact that he could not be detained in connection with the above trade financial fraud investigation."

On December 8, 2000, Nonindicted 1 heard Nonindicted 2’s horses that the escape abroad would be safe, and asked Nonindicted 2 to handle the work with Nonindicted 4, one’s own ticket, and left Korea to Japan on December 8, 200. Nonindicted 1, who was aware of not only the investigation of trade financial fraud cases but also the fact that if it is expanded, it will clarify the case of window dressing accounting loans. Nonindicted 1, who was uneasy in Japan, tried to contact with Nonindicted 2 and 4 in Korea and to obtain information on the situation of the progress of the investigation of the Seoul District Public Prosecutor’s Office outside the Seoul District Public Prosecutor’s Office. Nonindicted 2, Nonindicted 3 and Nonindicted 11, who tried to handle the case by force.

At around December 200, Nonindicted 2 asked Nonindicted 3, who is a friendly between Nonindicted 11 and Nonindicted 11, to explain the situation that Nonindicted 1 suffers from difficulties due to trade financial fraud, and to make it difficult for Nonindicted 2 to process the undetained. Nonindicted 3 was the party on which the content of the case, the investigation situation, the prosecutor in charge, and the department to which he belongs, etc. were entered, and Nonindicted 3 was the party to know through the prosecutor’s executive officer, and was delivered KRW 250 million to Nonindicted 4 through Nonindicted 2 on December 200.

On January 2001, Non-Indicted 1 did not have a definite answer that it may be processed by Non-Indicted 2 until the middle of the Seoul District Public Prosecutor's Office might be processed without restraint, and when the investigation by the Ministry of Public Prosecutor's Office was continued, Non-Indicted 4 appointed a defense counsel through Non-Indicted 4, and asked about the situation of the prosecutor's investigation and the issue of his personal injury. However, there was no clear information about the issue of treatment of undetained desired by Non-Indicted 1, and thus une

② On the other hand, Non-Indicted 11 and Non-Indicted 3 and 18 (name omitted) who had long-standing relationship, entered with the former president, and using the status and influence of Non-Indicted 11, i.e., the vice president of the Asia Foundation, the president of the Korean Supreme Prosecutors' Office at the time, he gets profes through various high-ranking public officials, including Defendant 1, who were in office as the vice president of the Korean Supreme Prosecutors' Office at that time, or through meals or drinking fields, and repeated acts to receive large amounts of money from various public officials or officers and employees of financial institutions in the name of resolving civil complaints. Defendant 1 knew Non-Indicted 3 around 195, Non-Indicted 11, and Non-Indicted 11, as well as Non-Indicted 11, who was subject to permission to visit the prosecutor's office or his representative, and made a good request for his personal information from another person, including Defendant 1, who was subject to permission to visit the prosecutor's office or his representative.

③ At the end of January 201, Nonindicted 3 asked the Prosecutor of the Seoul District Prosecutor’s Office to find out whether it is possible for Nonindicted 1 to be treated as undetained upon Nonindicted 1’s entry into the Republic of Korea. After receiving Nonindicted 3’s phone, Defendant 1 asked the Prosecutor of the Seoul District Prosecutor’s Office, who was in charge of the above trade financial fraud investigation, to call out that it would be good for Nonindicted 1 to request Nonindicted 1 to Defendant 1, and Defendant 1 to obtain consent from Nonindicted 11, and Defendant 1 via Nonindicted 3’s phone. Defendant 1 also asked the Prosecutor of the Seoul District Prosecutor’s Office, who was in charge of the above trade financial fraud investigation, to find out whether the contents of the case would come from the phone, and that it is possible for Nonindicted 12 to enter and leave the Republic of Korea even if Nonindicted 3’s answer was received.

Accordingly, Nonindicted 3 was fully arranged to Nonindicted 2, and said that Nonindicted 1 was aware of, and came into Korea. Nonindicted 2 transferred Nonindicted 3’s horses to Nonindicted 4 at that time, and directly sent Nonindicted 3’s horses to Japan, and Nonindicted 3 resolved all the problems through Defendant 1. Nonindicted 1 returned to the Republic of Korea on February 6, 2001, and was voluntarily present at the Seoul District Prosecutors’ Office and was investigated.

④ On the other hand, the Ministry of Foreign Affairs and Trade in Seoul District Public Prosecutor’s Office started an investigation into the first financial fraud proposal on December 2, 200 and withdrawn the measures of prohibiting departure of the persons involved in the case, including Nonindicted Party 1, but Nonindicted Party 1 had already left the Republic of Korea as seen above, and Non-Indicted 15 also left the country. According to legal principles, Non-Indicted 12 and Non-Indicted 14 of the State Public Prosecutor’s Office conducted an investigation into the trade financial fraud case of Non-Indicted 16, etc. under the judgment that it is evident that the trade financial fraud case of Non-Indicted 16 and Non-Indicted 14 constitutes the elements of fraud. As such, the fact that management, including Non-Indicted 1, etc., took part in the above financial fraud case by securing the statement that it was carried out after reporting all of the facts to the management including Non-Indicted 1, was difficult to find out the general financial fraud case of Non-Indicted 1, etc., as well as the general financial fraud case of Non-Indicted 2’s.

During that process, Nonindicted Party 1 returned to the prosecution on February 6, 2001 and voluntarily surrenders Nonindicted Party 15Do 15 to the prosecution on February 12, 2001. The Ministry of Foreign Affairs may conduct a personal investigation as to whether Nonindicted Party 1 could have been informed of the contents of the report, and whether the report was specifically reported from the practitioners. However, it is concluded that ( Group name omitted) the overall management situation of the Group did not conduct a separate investigation, and that the case of the above trade financial fraud was merely a simple legal treatment in the course of financing, and that it was concluded that the above trade financial fraud case was merely a simple one in the process of financing, but it is difficult for the Prosecutor of the Seoul District Prosecutors' Office to recognize the criminal prosecution against Nonindicted Party 1 on February 26, 2001, and that Nonindicted Party 1 was not subject to a criminal prosecution, and that Nonindicted Party 1 was not subject to a new order for examination on the part related to the above 14th order.

⑤ After returning on February 6, 2001, Nonindicted 1 asked Nonindicted 2 and 3 to continue to make efforts so that it may be processed without detention. Nonindicted 2 continued to be processed through Defendant 1 through Defendant 1, or Nonindicted 3, 11, and Defendant 1 sent Nonindicted 3’s horses, such as snicking horses, to Nonindicted 1 from time to time, and Nonindicted 1 was prosecuted on April 3, 2001, and Nonindicted 1 delivered KRW 50 million to Nonindicted 2 and KRW 490 million to Nonindicted 3 around May 201, respectively, and Nonindicted 1 introduced Nonindicted 1 as Nonindicted 31 and 31, respectively.

In addition, from September 2001, the prosecutor's investigation of the (group name omitted) group extended to the case of the window dressing accounting loan. Accordingly, the non-indicted 1 asked the non-indicted 2 to have the aforementioned window dressing accounting case not detained in the process of the prosecutor's investigation through the non-indicted 3 and 11, and the non-indicted 1 paid the amount of KRW 30 million around September 2001 and KRW 1.5 million around October 2001. However, it was ultimately binding on the window dressing accounting case on March 11, 202. On May 24, 2002, the Seoul District Court sentenced the non-indicted 2 to imprisonment for three years by recognizing that the case of the window dressing dressing and window dressing accounting loan was all convicted.

On February 7, 2003, Non-Indicted 3 and Non-Indicted 2 received money and valuables from many persons including the fact that they received money and valuables in return for confirming and delivering the Non-Detention internal investigation policies by Defendant 1 upon the request of the Seoul High Court, as seen above, on the grounds that Non-Indicted 3 was sentenced to imprisonment for four years, and Non-Indicted 2 was sentenced to imprisonment for one year and six months, respectively, and the judgment became final and conclusive at that time.

㈏ 판단

① The lower court determined that it was difficult to recognize Nonindicted Party 1’s charges of committing a crime against Nonindicted Party 1 on January 1, 2001, when Defendant 1 informed Nonindicted Party 3 of the investigation status of the Seoul District Prosecutors’ Office outside the Seoul District Prosecutor’s Office, and Nonindicted Party 1’s non-indicted 2’s non-indicted 1 and Non-indicted 5’s non-indicted 2’s non-indicted 1 and Non-indicted 2’s non-indicted 5’s non-indicted 1 and Non-indicted 2’s non-indicted 5’s non-indicted 1 and Non-indicted 2’s non-indicted 5’s non-indicted 1 and Non-indicted 2’s non-indicted 5’s non-indicted 1 and Non-indicted 2’s non-indicted 5’s non-indicted 1 and Non-indicted 15’s non-indicted 2’s non-indicted 1 and 5’s non-indicted 2’s non-indicted 5’s non-indicted.

Rather, according to the above evidence, at the end of January 201, 2001, the Ministry of Foreign Affairs of the Seoul District Public Prosecutor's Office confirmed the fact that the above trade financial fraud case constituted fraud by the statement of the working-level staff, including Nonindicted 16, was involved in the crime, and the management including Nonindicted 1 and Nonindicted 15, directly confirmed the details reported to Nonindicted 1 and 15, (the name omitted) group's financial situation by securing materials about the motive or cause of the crime, and (the name omitted) group's investigation into the management, including Nonindicted 1, was continued (the name of the group omitted) group, as it was planned to finally determine whether the crime liability against the management, including Nonindicted 1, or the issue of the treatment of personal illness, and it can be sufficiently recognized that the investigation team's decision with respect to Nonindicted 1, Nonindicted 1, and Nonindicted 15, had to be decided to have no suspicion.

② Furthermore, in light of the above fact-finding or Nonindicted 3’s statement that “it would have been examined and carried out without being detained by Nonindicted 1, and that it would not have been detained.” (Article 25897 of the Investigation Records No. 2002, No. 65897, No. 435 of the Criminal Procedure Act) the following facts were stated: (a) Defendant 1 knew from Nonindicted 12, and delivered to Nonindicted 3, is not merely merely a seriousness of the case; (b) at the investigation team at the time, it is clear that it is possible to process Nonindicted 1’s entry and detention even if it is possible, without having to fully punish Nonindicted 1, in relation to the case of the (group omitted) group, even if it was found that Nonindicted 1 had been arrested, the content of which would have been the most important part of the investigation conducted by the prosecution before the end of 210th 20th 20.

(3) On the other hand, if an investigative agency including the prosecution has continued to investigate a specific case, including the case at issue, the criminal liability of a suspect, and the opinion of a person in charge of the investigation on the treatment of a new disease, etc., are inside the investigative agency's internal secrets that should not be disclosed until a final decision is made on the case at issue, and if such investigation situation or interim judgment is disclosed to the outside of the investigative agency, such as a person who is likely to be subject to investigation, etc., it may destroy the material not secured by the investigative agency or escape the person concerned, or may manipulate the evidence or make a false statement in accordance with the contents identified by the investigative agency, and it is deemed that there is a risk of significantly impeding the investigative agency's functions of criminal investigation to obtain evidence and find a criminal offender.

④ Accordingly, Defendant 1’s act of disclosing the contents of Defendant 1’s act constitutes an act of disclosing confidential information which is obviously likely to seriously obstruct the investigation function of the investigation board against the (group omitted) group, and thus, cannot be exempted from the criminal liability for the crime of disclosing confidential information as long as Defendant 1 disclosed the aforementioned veterinary ideas known to the Prosecutor General of the Supreme Prosecutors’ Office in connection with the performance of duties by the Prosecutor General of the Supreme Prosecutors’ Office, and responded to the investigation by the Prosecutor is merely using the results of Defendant 1’s act of disclosing confidential information as a result of his official duties, so long as Defendant 1’s act constitutes an act of disclosing confidential information as long as Defendant 1’s act constitutes an act of disclosing confidential information as he was detained on official duties, he cannot be exempt from the criminal liability for the crime of disclosing confidential information. This doctrine applies to the case where Defendant 1 voluntarily consented to the investigation agency’s act of disclosing confidential information by identifying Nonindicted 1’s act of disclosing confidential information as long as it constitutes an act of disclosing confidential information.

Therefore, the above determination by the court below is erroneous in finding facts about the contents leaked by Defendant 1, or it erred in the misapprehension of the legal principles on secrets as prescribed in the crime of disclosure of official secrets.

㈐ 그렇다면, 피고인 1이 공소외 1에 대한 서울지방검찰청 외사부 수사 관련 공무상 비밀을 누설하였다는 공소사실은 그 증명이 충분한 것임에도, 원심이 피고인 1이 공소외 3을 통하여 공소외 1에게 누설한 정보가 직무상 비밀에 해당하지 않는다는 이유로 무죄를 선고한 것은, 사실을 오인하였거나 공무상 비밀누설죄에서 정한 비밀에 관한 법리를 오해하여 판결에 영향을 미친 위법을 범한 것이므로, 그 부분 검사의 항소는 이유 있다.

B. As to Defendant 1’s crime of abusing authority and obstructing another’s exercise of rights

(i) Summary of the facts charged

From June 9, 199 to May 25, 2001, Defendant 1, while serving as the Prosecutor General of the Supreme Prosecutors' Office, assisting the Prosecutor General, performs duties to exercise overall control over prosecutory affairs of various levels of prosecutory offices. From May 26, 2001 to January 15, 2002, Defendant 1, while serving as the Prosecutor General, has overall control over prosecutory affairs and performed duties to direct and supervise public officials of prosecutory offices.

On May 201, the Seocho-gu Prosecutor General of the Supreme Prosecutors' Office: (a) from Non-Indicted 3, Non-Indicted 6's office at the Ulsan District Prosecutor's Office, Non-Indicted 6's special investigation department, the Ulsan District Prosecutor's Office, conducted internal investigation based on the suspicion of bribery; (b) seized and searched evidence on the charge on or around the 2th of the same month; and (c) requested the phone call to the effect that (title omitted) the suspect would commence the investigation; (d) Non-Indicted 23, the above prosecutor's office, who was the chief prosecutor, should check the investigation status of the above internal investigation case, and then stop the investigation of the above internal investigation case; and (e) requested the prosecutor's office to order the non-Indicted 23, the above prosecutor's office, who was the chief of the above prosecutor's office, to promptly close the investigation into the above case and urge the prosecutor's office to promptly close the investigation process on or before May 26, 201.

B. Judgment of the court below

㈎ 증거에 의하면, 대검찰청은 2000. 12. 13., 울산광역시장 공소외 6이 (명칭 생략)종건 대표이사 공소외 20으로부터 울산 북구 (지구명칭 생략)지구의 토지구획정리사업허가 건과 관련하여 금품을 수수하고, 그밖에 공소외 25 주식회사 대표이사와 공소외 26 주식회사 대표이사로부터도 금품을 수수하였다는 첩보를 울산지방검찰청에 송부하여 그 조사, 처리를 지시한 사실, 위 사건을 배당받은 울산지방검찰청 특수부 검사 공소외 24는 2000. 12. 15. 내사계획을 수립하여 특수부장 공소외 5, 차장검사 공소외 27을 거쳐 검사장 공소외 23에게 이를 보고하고, 수사에 착수하여 2001. 3. 30.부터 4. 27.까지 금융기관이 (명칭 생략)종건에게 대출금으로 지급한 수표의 추적을 위한 압수수색을 행하고, 2001. 5. 2. (명칭 생략)종건의 사무실 및 공소외 20의 주거지, (명칭 생략)종건 경리이사 공소외 28의 주거지, (명칭 생략)종건이 거래한 (명칭 생략)새마을금고 사무실 등에 대한 압수수색을 행한 사실, 공소외 20은 2001. 4.경 (명칭 생략)종건이 거래하는 금융기관인 (명칭 생략)새마을금고로부터 울산지방검찰청 특수부에서 (명칭 생략)종건에 대한 금융거래자료제공을 요청받았다는 연락을 받고 (명칭 생략)종건에 대한 내사가 진행중임을 알게 되어 부장검사 출신의 공소외 29 변호사를 선임하여 대처하였으나 위와 같이 (명칭 생략)종건 사무실과 공소외 20의 주거지 등에까지 압수수색을 당하게 된 사실, 2001. 5. 2. 압수수색을 당하고 놀란 공소외 28은 같은 날 (명칭 생략)종건과 금전거래관계가 있었고 공소외 11과 절친한 사이였던 공소외 3에게 위 압수수색 사실을 알리고 벌써 몇 달째 조사를 받고 있으니 사건이 잘 해결되도록 해달라고 부탁을 하였고 공소외 3은 내가 할 수 있는 한 도와주겠다고 답변한 사실, 공소외 3은 2001. 5. 2. 또는 3.경 공소외 11과 (명칭 생략)종건으로부터 부탁받은 내용을 상의하고, 그 다음날쯤 피고인 1에게 전화를 걸어 (명칭 생략)종건이 울산지방검찰청 특수부에서 조사를 받고 있는데 잘 선처해 달라고 부탁한 사실, 그 무렵 피고인 1은 위 검사장 공소외 23에게 전화하여 (명칭 생략)종건에 대한 수사 건이 있는지와 사안이 무거운지를 물었고, 이에 공소외 23은 현재까지 특별한 것이 없고 앞으로 크게 수사가 될 것 같지 않다는 취지로 답하면서 (명칭 생략)종건이 1억 불의 외자유치를 추진중이라고 말하였더니, 피고인 1이 그렇다면 수사가 오픈되지 않는 것이 좋겠다고 말하고 통화를 마친 사실, 공소외 23은 위 특수부장 공소외 5와 주임검사 공소외 24에게 위 사건에 관하여 보안에 신경 쓰고 외부에 알려지지 않도록 하라는 지시를 하였고, 공소외 24는 (명칭 생략)종건에 대한 압수수색 후 2001. 5. 8. 해외정책연수를 떠나서 같은 달 20. 귀국하였으며, 2001. 5. 26. 피고인 1의 검찰총장 취임식이 있은 후 공소외 23은 2001. 5. 31.자로 대검 기획조정부장으로 전보될 예정으로 있는 상태에서 2001. 5. 28. 공소외 5를 불러 공소외 6의 (명칭 생략)종건으로부터의 뇌물수수사건에 관하여 지금까지 밝혀진 것이 있는지, 앞으로 내사를 더 해서 밝혀질 가능성이 있는지를 물어 공소외 5와 공소외 24가 특별히 더 나올 것이 없다는 취지로 보고하자, 안될 사건이라면 굳이 후임자에게 부담을 줄 필요가 없으니 자신이 검사장으로 있을 때 내사를 종결하는 것이 좋겠다는 의견을 말하였고, 이에 공소외 5와 공소외 24도 찬성하여 위 내사사건은 2001. 5. 28. 내사종결된 사실을 인정할 수 있다.

㈏ 나아가, 과연 피고인 1이 공소외 23에게 전화하여 당시 내사중이던 (명칭 생략)종건 사건에 관하여 위와 같은 내용의 대화를 나눈 것을 수사 검사로 하여금 (명칭 생략)종건에 대한 내사를 중단하도록 하라는 지시라고 볼 수 있는지 여부와 피고인 1이 2001. 5. 26.에 있었던 검찰총장 취임식 무렵에 취임식 참석을 위하여 상경하여 있던 공소외 23에게 재차 내사를 종결하라는 지시를 하였다는 점에 관하여 보건대, 대검 검찰주사보 작성의 수사보고(내사종결경위관련 첩보입수보고)는 피고인이 증거로 함에 동의한 바 없고 원작성자인 공소외 30의 진술에 의하여 성립의 진정이 인정되지도 않았으므로 증거능력이 없고, 증인 공소외 5의 이 법정에서의 진술 및 검사 작성의 위 증인에 대한 제2회 진술조서의 진술기재, 공소외 5 작성의 진술서초고 팩스문의 기재를 보면, 그 중 공소외 5가, (명칭 생략)종건에 대한 압수수색 직후 공소외 23으로부터 “대검 차장검사가 전화를 걸어 사건 내용을 문의하더니 검찰총장 인사가 있을 때까지 내사진행을 일시 보류하라고 하였다”라는 말을 들었다는 취지의 진술, 검찰총장 취임식 이틀 후인 2001. 5. 28. 공소외 23으로부터 “총장님이 (명칭 생략)종건 내사를 그만두라고 하였다”라는 말을 들었다는 취지의 진술 및 2001. 5. 28.경 공소외 27로부터 “ 피고인 1이 그러는데 어떡하겠노”라는 말을 들었다는 진술 또는 기재 부분은 전문진술이거나 전문진술을 기재한 조서에 해당하는데, 위 피고인이 이를 증거로 함에 동의한 바 없고, 원진술자인 공소외 23, 27이 사망, 질병, 외국거주 기타 사유로 인하여 진술할 수 없는 사정이 있다는 점을 인정할 증거가 없어 증거능력이 없으며, 공소외 5가 (명칭 생략)종건에 대한 압수수색 직후 공소외 23으로부터 대검 차장검사의 내사보류지시를 듣고, 공소외 24에게 대검 차장검사가 검찰총장 인사시까지 위 사건 내사를 보류하도록 지시하였다는 말을 전달하였고, 2001. 5. 28. 공소외 23, 27과 함께 내사종결여부에 관한 대화를 나눌 당시 공소외 23으로부터 검찰총장이 내사를 그만두라고 지시하였다는 말을 듣고 공소외 23에게 일시보류는 모르지만 그냥 덮어버리는 것은 문제가 있지 않겠느냐는 등의 말을 하였다는 진술 부분은, 공소외 5 작성의 진술서의 기재나 공소외 5의 검찰에서의 제1회 진술시에는 공소외 5가 공소외 23으로부터 위와 같은 지시를 받은 일이 없다고 하고 있어 그 진술에 일관성이 없을 뿐더러, 공소외 24와 공소외 27은 검찰에서의 각 진술이나 이 법원의 검사 공소외 27에 대한 사실조회 회보서의 기재에서 공소외 5가 위와 같은 말을 한 적이 없다고 하여 공소외 5와 상반되는 진술을 하고 있어 공소외 5의 위 진술은 선뜻 믿기 어렵고, 공소외 5의 나머지 진술 부분은 적어도 2001. 5. 28.에는 위 내사사건을 종결할 상태가 아니었는데 그때 내사종결처분을 한 것으로 보아 2001. 5. 26. 검찰총장 취임식에서 공소외 23이 피고인 1로부터 내사종결지시를 받은 것으로 생각한다는 내용으로 단순한 추측에 불과하여 그것만으로 위 공소사실을 인정하기에 부족하다. 또한 이 법원의 검사 공소외 27에 대한 사실조회 회보서의 기재, 검사 작성의 공소외 11, 18, 20, 23, 27, 31, 32, 33에 대한 각 진술조서의 각 진술기재 역시 그것만으로는 위 공소사실을 인정하기에 부족하다.

㈐ 한편 위에서 인정한 피고인 1이 2001. 5. 초경 공소외 23에게 전화하여 위 인정과 같은 내용의 대화를 나눈 사실만으로는, 위 피고인이 공소외 23에게 그 이상의 지시를 하였다는 점에 대한 증거가 없는 이 사건에 있어 수사 검사로 하여금 (명칭 생략)종건에 대한 내사를 중단하도록 하라는 취지의 지시를 한 것으로 볼 수도 없다 할 것이다.

Therefore, this part of the facts charged against Defendant 1 constitutes a case where there is no proof of crime.

【Court Judgment of this Court

However, it is difficult to accept this part of the judgment of the court below for the following reasons.

㈎ 인정사실

First, Defendant 1, Nonindicted 3, and 5’s statement at the court of original instance (excluding the part on which Nonindicted 23, and 27’s statement among Nonindicted 5’s statement is included), Nonindicted 3, 5, 11, 18, 20, 23, 24, 27, 28, 32, and 33’s all or part of the prosecutor’s statement (excluding the part on which Nonindicted 23, 27’s statement in Nonindicted 5’s statement is included) of the prosecutor’s statement at the court of original instance, Defendant 1, Nonindicted 3, and Nonindicted 5’s statement at the court of original instance, Nonindicted 3, and Nonindicted 31, Nonindicted 24’s statement, part of the fact inquiry reply in the court of original instance, and (case number omitted), the judgment at the Seoul District Court, the prosecutor’s office at the Busan District Court’s office’s prosecutor’s office’s office’s number omitted), can be found as follows.

① On December 13, 200, the Supreme Prosecutors’ Office sent out to the Ulsan District Prosecutors’ Office that Nonindicted 6 received KRW 150 million in relation to the permission for the (name omitted) factory from the representative director of the corporation Nonindicted 25,000, KRW 50 million, KRW 5000,000 in relation to the (name omitted), KRW 200,000 in relation to the (name omitted), and KRW 500,000 in relation to the (name omitted) permission for the land readjustment project in Ulsan-gu from Nonindicted 20, and KRW 26,000 in relation to the permission for the land readjustment project, and ordered the Seoul District Prosecutors’ Office to investigate and process the case by March 7, 2001. Nonindicted 24, the Prosecutor of the Special Division of the Ulsan District Prosecutors’ Office, who received the instant case, established the internal investigation plan on December 15, 200, and reported it to Nonindicted 23 through the Prosecutor, and recommended Nonindicted 24 in the Central Prosecutors’s Office to conduct thorough investigation.

At that time, the situation was reported to Nonindicted 23 and 27 through Nonindicted 5. First of all, as a result of the confirmation of facts and tracking of financial data on the side of the company and the financial institution related to the company that is the provider of the bribe, Nonindicted Co. 25 was confirmed most of the fact that the case related to Nonindicted Co. 25 was provided to Nonindicted Co. 6 as well as to some public officials and reporters of Ulsan Metropolitan City, Ulsan Metropolitan City. Moreover, as a result of search and seizure of financial transaction data on financial institutions in the type of case and transaction, Nonindicted Co. 20 had already provided or completed the land readjustment project in the zone where the land substitution and rearrangement project was being promoted in the type of (title omitted) case by Nonindicted Co. 20 as security to another financial institution, and had provided as security to the Saemaul Savings Depository (title omitted).

On April 27, 2001, when investigating Nonindicted 35 of the former president of the Saemaul Fund (name omitted) Saemaul Fund, the person in question knew that Nonindicted 18 had changed the number of high-value tickets of KRW 18 million to cash, and the money was to be a public official, and Nonindicted 20 was already offered as security from the Saemaul Fund in the land readjustment project district by obtaining a loan in excess of the same loan limit from other financial institutions, the land secured for development outlay in the land readjustment project district, which was already offered as security or completed as security, is not worth security. In relation to the above loan, the person in question was the head of the land readjustment project cooperative, the head of the cubs vehicle in the land rearrangement project cooperative, the head of the cubs vehicle and the land secured for development outlay land, etc., the construction waste of apartment buildings other than earth and stone, and the construction waste of the land was registered in the land reclamation project in the name of Ulsan Metropolitan City and the public officials in charge of the land development recompense project. The result confirmed that it was registered in the above land readjustment project.

In order to confirm the suspicion points specifically revealed as above, Nonindicted 24 prosecutor conducted search and seizure on May 2, 2001 (name omitted), the (name omitted), the residence of Nonindicted 20, the residence of Nonindicted 28, the (name omitted) the senior managing director, and the (name omitted) the Saemaul Depository office.

② 한편, 앞서 2.가.⑶㈎②항에서 본 바와 같이 공소외 3, 11, 18은 평소 피고인 1과 친분이 있는 사이였고, 공소외 3은 공소외 18의 형이자 (명칭 생략)종건 대표이사인 공소외 20, 공소외 20의 처남이자 위 회사 전무이사인 공소외 28과도 아는 사이였는데, 2000. 가을경부터 공소외 20에게 (명칭 생략)종건 운영자금으로 여러 번에 걸쳐 돈을 빌려 주어 2001. 4.경에는 공소외 11로부터 빌려서 꿔 준 것까지 합하여 약 40억 원에 이르게 되었다.

(Name) On March 2001, the case was announced to hold an investment briefing session and immediately attract foreign capital of USD 100 million. On May 2, 2001, when search and seizure was conducted as above, Nonindicted 28 asked Nonindicted 3 to inform Nonindicted 3 of the fact of search and seizure on the same day and undergo a few-month investigation, so that the case can be resolved well, and Nonindicted 3 will help him to the extent possible.

③ On May 2, 2001 or the following day, Nonindicted 3, upon Nonindicted 11’s request from Nonindicted 28, asked Nonindicted 11 to make a speech even to Defendant 1, and obtained Nonindicted 11’s consent. At that time, Nonindicted 3, the Prosecutor General of the Supreme Prosecutors’ Office, as the Prosecutor General of the Supreme Prosecutors’ Office, asked Defendant 1 to have a phone call, and Nonindicted 18, as Defendant 1, as the head of the office of the Supreme Prosecutors’ Office, was a type of representative director and the head of the office of the (name omitted). However, Nonindicted 3 requested that the head of the office of the Ulsan District Prosecutors’ Office was subject to search and seizure while inducing foreign capital.

At that time, Defendant 1 called to the chief prosecutor of Nonindicted 23 to inquire of the person who knows about (title omitted) case at that time, and asked Nonindicted 23 to the effect that the investigation case on the paper case will be carried out, and that Nonindicted 23 is a case of Nonindicted 6’s internal investigation pursuant to the Supreme Prosecutors’ Office overlapped with the Supreme Prosecutors’ Office, and that there is no special reason up to now, and that there is no need to be an investigation in the future. Defendant 1 would be good if he would be well aware of the paper case (title omitted) without any special reason.

On May 8, 2001, Nonindicted 23, Nonindicted 5, the Prosecutor General of the Supreme Prosecutors' Office, was called as Nonindicted 1, who was the Prosecutor General of the Supreme Prosecutors' Office, before Defendant 1, the Prosecutor General of the Supreme Prosecutors' Office, referred Nonindicted 5 to temporarily suspend the progress of internal investigation until the Prosecutor General of the Supreme Prosecutors' Office, and Nonindicted 24, who was the Prosecutor's Investigation Team of the Prosecutor's Office, instructed Nonindicted 32, the Prosecutor's Office, and Nonindicted 31, the Prosecutor's Assistant Prosecutor, to arrange the search and seizure results of the instant case, and returned to the Republic of Korea on the 20th of the same month.

④ Meanwhile, until May 201, 2001, Nonindicted 31 and 32 arranged and analyzed the data secured as a result of search and seizure of (title omitted) case, and visited and confirmed the construction site directly. As a result, on May 22, 2001, the fact that some of the proceeds from sale of the land allotted in recompense for development outlay in the land readjustment project zone implemented in (title omitted) case was remitted to and embezzled to the private account of Nonindicted 20, and (title omitted) paper case (title omitted) was sold to a third party for the purpose of security or offered as security before the offering of security to a third party before the offering of the land secured in recompense for development outlay, which was already sold to a third party for the purpose of security or offered as security, the construction cost was embezzled from the land readjustment project association by using construction waste, which is not earth and stone, and the fact that it was revealed immediately after the return to Korea, and the fact that there was a need for an additional investigation on the charge of Class 24 did not refer to any particular investigation.

⑤ On May 26, 2001, the non-indicted 23, who attended the position of the Prosecutor General of the Supreme Prosecutors’ Office that was implemented on May 26, 2001, went to work at the Ulsan District Prosecutor’s Office on May 28, 2005 (the non-indicted 23 was scheduled to be transferred to the Director of the Planning and Coordination Office of the Supreme Prosecutors’ Office on May 27, 2001) and then discussed Non-indicted 5 on the day of May 31, 201 (title omitted) and discussed the case in the non-indicted 5 on the non-indicted 5 (title omitted). Although it was not possible to temporarily withhold from Non-indicted 5 in the same place, it was an issue, and it was not necessary to put his successor at the position of the Prosecutor, and there is no need to put him a burden on his successor, and at that time, he expressed his opinion that the case will be closed at the time of his death to the non-indicted 27 prosecutor.

On the other hand, when Nonindicted 5 reported Nonindicted 23’s order to terminate the internal investigation to Nonindicted 27, Nonindicted 27 said Nonindicted 27 said that “it is the case in which the President had interest in the President and how the President would be said to have been dealt with by him.” Accordingly, Nonindicted 5 instructed Nonindicted 24 to the President that he would not proceed with the internal investigation. Nonindicted 25 was able to clarify all of the facts, and the Prosecutor was able to look back, so, he sent Nonindicted 23’s intent by Nonindicted 23, while Nonindicted 24 did not explain to Nonindicted 32 or Nonindicted 31, who had been the investigative team on May 28, 201, and concluded the said internal investigation with the approval of Nonindicted 5, Nonindicted 23 and Nonindicted 27.

⑥ As above, Nonindicted 3 demanded compensation for the fact that Nonindicted 3 made efforts to settle the internal investigation cases related to the (name omitted) type case as seen above and received KRW 200 million from Nonindicted 28 (the amount related to the termination of the instant internal investigation cases among the said money is KRW 100 million). (Name omitted) Nonindicted 3’s investment attraction of USD 100 million, which was announced, was entirely not realized, and Nonindicted 20 was in a crisis due to Non-Indicted 3’s failure to settle the debt amounting to KRW 00 million on September 201, 201, and Non-Indicted 20 had escaped abroad.

As a result of the trial on Nonindicted 6 separately proceeded with, on October 25, 2002, Nonindicted 20 was sentenced to a suspended sentence of two years for a crime that Nonindicted 6’s City Mayor 30 million won, and Nonindicted 6 was sentenced to a suspended sentence of three years for a crime that she has mineed KRW 200 million to the head of the General Construction Headquarters of Ulsan Metropolitan City in connection with the land readjustment project; and Nonindicted 3 was sentenced to a five-year imprisonment for the above crime. The criminal facts of the judgment that became final and conclusive at the time when Nonindicted 3 was sentenced to a four-year imprisonment with the Seoul High Court on February 7, 2003, and the fact that Nonindicted 3 received money and valuables at the request of Nonindicted 28 upon request of Defendant 1 in return for the completion of the internal investigation procedure on paper (title omitted) case.

㈏ 판단

① As to the lower judgment on Nonindicted 5’s statement

First of all, the part of the statement made by Nonindicted 5 at the court of the court below and the prosecutor’s statement made by Nonindicted 5 at the court of the court below, and the part of the statement made by Nonindicted 23 and 27 at the prosecutor’s office is admissible as evidence, since the defendant did not consent to the admissibility of evidence and the person making the original statement is not in a state that he is unable to make a statement due to death, etc.

Since Nonindicted 23 and 27 are in fact in the status of Defendant 1 and accomplice, the prosecutor asserts that the admissibility of the part of Nonindicted 5’s statement cited by the above two persons should be applied to the admissibility of evidence, not Article 316(2) of the Criminal Procedure Act, but Article 316(1) of the same Act. However, Nonindicted 23 and 27 do not have any evidence to deem that Nonindicted 1 and accomplice are in the status of Defendant 1 and accomplice. Even if they are in the status of a domestic accomplice, the other person, other than the Defendant, includes not only the third person, but also the co-defendant or accomplice (see Supreme Court Decision 9Do5679 delivered on December 27, 200, etc.). The above assertion is rejected.

(w) However, the lower court, on May 28, 201, sent to Nonindicted 5’s witness Nonindicted 5’s statement in the lower court’s court and Nonindicted 23 and 27’s prosecutor’s statement in the prosecutor’s statement as to Nonindicted 5, i.e., Nonindicted 5’s order of temporary postponement of internal investigation from Nonindicted 23 after the search and seizure of the case (title omitted), and then sent to Nonindicted 24 that the Prosecutor General of the Supreme Prosecutors’ Office directed Nonindicted 23 to temporarily suspend internal investigation until the Prosecutor General’s personnel is in charge, and rejected Nonindicted 23’s order of suspension of internal investigation from Nonindicted 23 to Nonindicted 23 at the time of division of the conversation on Nonindicted 23’s internal investigation and on Non-Indicted 5’s statement on Non-Indicted 5’s internal investigation. In other words, it is difficult to accept the credibility of Non-Indicted 5’s statement on the ground that it does not cover Non-Indicted 24’s internal investigation.

First of all, Non-Indicted 5’s statement is a conclusive unfavorable statement against Defendant 1, who held office as the head of the prosecutor’s organization that he was in his body, and is currently working with Non-Indicted 23, 24, and 27 as well as the entire prosecutor’s organization, and is currently working with Non-Indicted 5, who is currently working with Non-Indicted 5, 23, 24, and 27, and even is unable to be free from the responsibility due to the facts revealed by the above statement. Thus, there is no reason to make the above statement differently from the facts.

Rather, Nonindicted 23, 24, and 27 can sufficiently see that the situation in which it is impossible to make free statements on the grounds of the intention between the prosecution organization and incumbent line and line, and that it is much persuasive to explain that most of the persons involved in Nonindicted 5 themselves at the time are in all incumbent and incumbent, and that it is difficult for them to speak the facts in the initial statement in the prosecution, because they are not themselves.

If all of the statements made by Nonindicted 5 are false, it is common attitude for Nonindicted 23, 24, and 27, who are well aware of the facts at the time as at the time as at the time as at the public prosecutor, to clarify the facts in the court and thereby to prosecute the false statements made by Nonindicted 5, who is the jury of the public prosecutor's office, as well as by the prosecutor's office. However, the above three persons attempted to voluntarily make a statement in the court through the prosecutor's office or defense counsel. However, in light of the situation where it is emphasized that the above statements were true after taking an oath at the court of the court below as well as the situation where it is emphasized that the above statements were true according to conscience, the above statements made by Nonindicted 5 are sufficiently reliable.

In addition, the above statements by Non-Indicted 5 are specifically describing the situation at the time, and are naturally consistent with the situation at the time when the above internal investigation case was inappropriate.

As seen earlier in the facts of recognition, the above internal investigation case was directed by the Supreme Prosecutors' Office along with material based on specific intelligence at the Supreme Prosecutors' Office. On February 2001, the Supreme Prosecutors' Office urged that the internal investigation should proceed promptly and strictly, and thus, it was not a case that can be processed without permission by the Ulsan District Prosecutors' Office which received instructions, and as a result of internal investigation, the fact of suspicion of bribery against the non-indicted 25 Co., Ltd. was confirmed. On April 27, 2001, the investigation into the non-indicted 35 on the non-indicted 20 and the search and seizure of May 2, 2001 on the non-indicted 20, and it was sufficiently possible to confirm the facts of the suspicion of bribery against the non-indicted 6 market principal, and it was naturally and clearly possible to conclude the above internal investigation without the Prosecutor's instructions or additional investigation into the facts of the above non-indicted 1's internal investigation into the above non-indicted 5 market principal.

On the other hand, Nonindicted 23, 24, and 27 merely repeats the statement that the completion of the above internal investigation was based on the internal judgment of the Ulsan District Prosecutors' Office, and the above internal investigation case did not present all the grounds to be able to be properly resolved without any measures as to the matters already confirmed immediately after Defendant 1's appointment by the Prosecutor General.

Since these circumstances fully support the credibility of Nonindicted 5’s above statement, it shall be deemed that the above statement by Nonindicted 5 is a valuable evidence for the recognition of the facts of this case, and rather, it shall be deemed that each part of the statement by Nonindicted 23, 24, and 27, which is contrary to the above statement, is difficult to believe.

② Whether Defendant 1 instructed suspension and termination of internal investigation

According to the evidence as seen earlier and the facts acknowledged, it can be sufficiently ratified that Defendant 1’s statement to Nonindicted 23, at the time of Nonindicted 23’s call to Nonindicted 23 immediately after the search and seizure of the case (title omitted) is to suspend the progress of the internal investigation on (title omitted) paper cases.

As seen above, it can be ratified as above. Since the foreign capital was changed from the non-indicted 11 to the non-indicted 20, it was difficult for the non-indicted 3 to receive approximately KRW 4 billion money from the non-indicted 11 at the time, (title omitted) the internal intention of the (name omitted) paper case, or criminal punishment against the non-indicted 20, etc., the situation where the non-indicted 11 could not recover the money can occur. Thus, it is close to the non-indicted 11 after the search and seizure, and the defendant 1 also mentioned that the non-indicted 18, who was only recorded in the name of the non-indicted 11, was the colon of the non-indicted 10 representative director without the above name of the non-indicted 11, and the (name omitted) paper of the non-indicted 2, who was ordered to leave the name of the non-indicted 3 to the non-indicted 11's name and provided the non-indicted 13 with the above information without the above request.

Although Defendant 1 expressed the above contents in a sound manner, considering the status of the defendant, who is the Prosecutor General of the Supreme Prosecutors' Office, the chief prosecutor who is the Prosecutor's Office, in light of the status of the defendant, the defendant 23, who is the chief prosecutor of the Prosecutor's Office, was subject to the defendant's order of suspension of internal investigation, and the defendant 1 merely stated that the progress of internal investigation was not open to the public. Even though the defendant 1's internal investigation was already conducted for several months, if he stated that the internal investigation was conducted for several months and that the progress of internal investigation was no longer open to the public at the time immediately after the search and seizure was conducted without sufficient examination of the materials secured as a result of the search and seizure, the person in charge of internal investigation can no longer carry out additional internal investigation as the person in charge of internal investigation, and such mentioned above also cannot be evaluated as a (title omitted) order of suspension of internal investigation.

As seen earlier, Nonindicted 5 asked Nonindicted 24 to temporarily withhold the progress of internal investigation until the Prosecutor General of the Supreme Prosecutors' Office was in charge of personnel affairs. Nonindicted 5 asked Nonindicted 24 on the day immediately after the call with Defendant 1. Nonindicted 23, which stated that Nonindicted 5 stated that Defendant 1’s reference was “after the telephone was made, it was difficult for Nonindicted 5 to proceed with an investigation that may enter the Prosecutor General of the Supreme Prosecutors’ Office.” (No. 2 book No. 2, No. 65897 of the Investigation Record No. 65897, No. 2, No. 523 of the Investigation Record No. 65897). However, Nonindicted 23, which stated consistently that Defendant 1 did not receive an order to suspend internal investigation from Defendant 1 at the time of the said call, the Prosecutor stated that “In telephone calls, Defendant 1 was a person upon the request of Defendant 1, and it would have been well named unless there is any special reason to do so.”

(C) In addition, even if it is insufficient to recognize the fact that Defendant 1 gave Nonindicted 23 an order to discontinue internal investigation by telephone on May 2001, Defendant 1 instructed Nonindicted 23 to terminate the above internal investigation case on May 26, 200, according to the above evidence and the facts of recognition, Defendant 1 instructed Nonindicted 23 to terminate the above internal investigation case after having taken office on May 26, 200, according to the above evidence and the facts of recognition.

In this regard, while Non-Indicted 27 consistently stated that Defendant 1 instructed Non-Indicted 23 to terminate the internal investigation, Non-Indicted 27 made a consistent statement that there is no doubt, it is said that Defendant 1, the Prosecutor General, on May 28, 2001, before Non-Indicted 23 Chief Prosecutor, asked Defendant 1, who was the Prosecutor General, of how he was under way in the Non-Indicted 6 market bribery case. Although Non-Indicted 5, and Non-Indicted 24 had thought that there was a possibility to proceed with the internal investigation, they followed the opinion of the Chief Prosecutor, but in theory, they were treated as a matter of principle according to the opinion of the Chief Prosecutor. However, in reality, since there was a case in which the Prosecutor General is interested, it cannot be said that there was no influence on the prosecutor’s internal investigation and treatment of the deceased, or in the prosecutor’s office, it cannot be deemed that there was no actual influence on the Prosecutor General’s decision to terminate the internal investigation record (No. 2092). 4.27.

In addition, in the court of original instance, Nonindicted 5 stated his dissenting opinion, such as whether it would be a temporary stop but covered by the match at the Supreme Prosecutors' Office, and whether it could cover the match at the same time. In the absence of the chief prosecutor's order, Nonindicted 5 stated in the prosecutor's office that "I would not end the case at that time." The prosecutor stated that "I would have a critical impact on the completion of internal investigation," and that it was unreasonable to cover the case itself, although it was not temporarily withheld, it was thought that it was unreasonable to cover the case itself, so it would be possible to deliver the direction of vehicle and horse to the principal prosecutor. Nonindicted 24. Nonindicted 25 case was instructed by the president, who was able to do so. It would not have been able to say that the prosecutor would not be able to drink the president, but would not have been able to ignore the president's right to remain in the prosecutor's office (Article 25-2).

In addition, Nonindicted 32 was the important case that was down at the public prosecutor's office, and the present market was received a large amount of bribe from KRW 1 billion, and it is difficult for the public prosecutor to frequently prepare a report, report, and receive instructions from time to time while conducting the investigation, and also to complete the internal investigation upon the acceptance of the opinion on the progress of the investigation and the handling of the internal investigation. The prosecutor recommended the investigation with an intention to trace the relevant party's account and to search and seizure of the office only until the office was conducted with the warrant of search and seizure, and ordered the two instructions by arranging the results of search and seizure while conducting the training and arranging the results of the education, and it seems that the prosecutor did not know that the above investigation was conducted without mentioning the results of search and seizure from KRW 20 and Nonindicted 6, and even without reporting it to him, the prosecutor did not know that he did not know the fact that he did not know that he did not know that he did not know the fact that he did not know that he did not know that he did not know about it.

According to the above statements, it can be sufficiently recognized that the above internal investigation procedure, which Defendant 1 had been carried out properly, is completed by giving Nonindicted 23 an instruction to terminate internal investigation by means of interview, telephone call, etc. at the time before and after his taking office.

③ According to the above review, it is sufficient to acknowledge that Defendant 1’s act constitutes an act of having Nonindicted 24 prosecutors perform an act without any obligation by abusing official authority of the Prosecutor General of the Supreme Prosecutors’ Office or the Prosecutor General by abusing official authority of the Prosecutor General of the Supreme Prosecutors’ Office, or of the Prosecutor General, and by using the position of the Prosecutor General of the Ulsan District Prosecutor’s Office or the Prosecutor General, and ordering the Prosecutor of the Ulsan District Prosecutor’s Office to suspend and terminate internal investigation by means of interview or telephone call, etc., and allowing the Prosecutor in charge Nonindicted 24 to discover specific suspicions and to terminate the normal process of internal investigation on Nonindicted 6 market (name omitted), and it is evident that Defendant 1’s act constitutes an act of having Nonindicted 24 prosecutors perform an act without any obligation.

㈐ 그렇다면, 피고인 1이 직권을 남용하여 (명칭 생략)종건 관련 내사사건 검사 공소외 24로 하여금 의무 없는 일을 하게 하였다는 공소사실은 그 증명이 충분한 것임에도, 원심이 피고인 1에 대한 위 공소사실의 입증이 부족하다는 이유로 무죄를 선고한 것은, 사실을 오인하여 판결에 영향을 미친 위법을 범한 것이므로, 그 부분 검사의 항소는 이유 있다.

C. As to the Defendants’ crime of divulging secrets related to Nonindicted 7’s internal investigation on official duties

(i) Summary of the facts charged

Defendant 1 served as Prosecutor General from May 26, 2001 to January 15, 2002, while controlling the prosecution affairs and directing and supervising the public officials of the prosecutor’s office. Defendant 2 served as the chief prosecutor of the Seoul District Prosecutors’ Office from May 31, 2001 to February 7, 2002. The Defendants are pro-friendly relations, such as working together in the same prosecutor’s office several times as the post distribution place in the prosecutor’s office. From around 1998, the Defendants entered a pro-friendly relationship with Nonindicted 8, who worked as the standing director of the Foundation at the time of Nonindicted 36, and kept a close-distance relationship with Nonindicted 8, who had been known as Nonindicted 36 or a meal at the same time, and when Nonindicted 389, supra, was arrested by the chief director of the Supreme Prosecutors’ Office as the central prosecutor’s office’s investigation result, etc., the Defendants were 8 and 8, who were at the same end at the end of 17, the Central Prosecutors’s Office.

On November 201, 2001, Defendant 2 sent a telephone to Nonindicted 8’s office, and asked Nonindicted 8 to the effect that “I will begin an investigation with respect to Nonindicted 7 at the public prosecutor’s office. There is no part that he knows about, even if investigating Nonindicted 7 in connection with Nonindicted 9 case, I will come up? He knows about, I will come up with, and go up to, the President of the National Assembly. I will ask Nonindicted 8 to the effect that “I will come up with, and have no day to go,. I will come up with, the phone.” Defendant 1 sent the phone to Defendant 1, who called “I will come up with the money from Nonindicted 7 Company 9,” and Defendant 1 again sent to Nonindicted 8 “I will have to go up with the money from Nonindicted 7, who will not conduct an investigation, and will not make a thorough investigation,” and the Central Prosecutor’s Office of Justice should inform Nonindicted 7 of the plan for the last day of the investigation.”

On November 9, 2001, Defendant 2 informed Nonindicted 8 of the fact that the prosecutorial investigation against Nonindicted 7 was imminent to the effect that “I would know Nonindicted 8 about whether I would be able to conduct an investigation into Nonindicted 7 in the open space,” at around 15:58;

Defendant 1, at around 16:27 on the same day, received a phone call from Nonindicted 8 to the effect that “ Nonindicted 7 would have an intention to undergo an investigation well,” and then walked again to Nonindicted 8 on the same day at around 17:17 on the same day, and, at around 17:17, Defendant 1 notified Nonindicted 8 of the direction of investigation by the Central Investigation Division against Nonindicted 7;

Defendant 2 received a call from Nonindicted 8 on November 17, 2001 to ask Nonindicted 7 of the Central Investigation Division of the Supreme Prosecutors' Office, which was conducted from November 13, 2001 to November 16, 2001, from Nonindicted 8, and from Nonindicted 7 of the same month, to ask for the results of the investigation, and to the effect that “Singingon is not written,” Nonindicted 7 uses it as part of outside director’s activity expenses that he would not receive KRW 50 million on the front check, and some parts of it would have been treated as being not received by the company, and thus, inform Nonindicted 7 of the results of the investigation by the Central Investigation Division of the Supreme Prosecutors’ Office of the Supreme Prosecutors’ Office as to Nonindicted 7;

On November 20, 2001, Defendant 1 disclosed official secrets acquired on duty by informing Nonindicted 7 of the results of investigation by the Central Investigation Department of the Supreme Prosecutors' Office of the Supreme Prosecutors' Office on the purport that “I think I think I would be a special inspection practice” after receiving a telephone from Nonindicted 8 to ask for an investigation result.”

B. Judgment of the court below

㈎ 유죄부분

(1) Recognized criminal facts

From May 31, 2001 to February 7, 2002, Defendant 2 served as the chief prosecutor of the Seoul District Prosecutors' Office. From around 1998 to around 1998, Defendant 2 entered into a relationship with Nonindicted 8, who had worked as a standing director of Nonindicted Foundation 36, and made a telephone conversation or a meal with him, and maintained a decent relationship. On September 1, 2001, Nonindicted 38 representative director 9 was detained on the Central Prosecutor's Office of Investigation of the Supreme Prosecutors' Office on the suspicion of stock price manipulation, etc., Nonindicted 8 and other senior personnel were identified as their front force, and Nonindicted 37 (the affiliate of Nonindicted 38) was introduced from the Central Prosecutor's Investigation Division of the Supreme Prosecutors' Office to make it known to Nonindicted 37 (the affiliate of Nonindicted 38) at the same time as Nonindicted 37 (the affiliate of Nonindicted 38) at the same time with Nonindicted 50, 700, and the fact that Nonindicted 38, who was known in his first place of inspection.

Around November 15:58, 2001, the prosecutorial investigation of Nonindicted 7 against Nonindicted 7 was informed to the effect that “I would know that I would know that I would know I would know I would know I would like to examine I would like to I would like to know I would like to do. I would like to know I would like to know I would like to do so. On November 17, 200, the prosecutorial investigation of Nonindicted 7 was conducted from Nonindicted 8 to November 13, 2001, and asked I would like to ask I would like to know I would like to know I would like to know I would like to know that I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know.”

② Judgment on the defense counsel’s assertion

Judgment on the assertion on the admissibility and probative value of each written statement made by the prosecutor, etc. against Nonindicted 8

Defendant 2’s defense counsel held that each of the special prosecutor’s reports and the prosecutor’s statements against Nonindicted 8 did not consent to the aforementioned defendant as evidence, and that the authenticity of establishment was not recognized by Nonindicted 8’s statement, the original person making the original statement, and thus, it is not admissible as a matter of principle. However, in order for Nonindicted 8 to exceptionally recognize the admissibility of evidence on the grounds that it was impossible to make a statement in a foreign country, it is necessary that the statement was made under particularly reliable circumstances. As at the time of the preparation of each of the above statements, Nonindicted 8, who was 70 years of age, made a statement from February 28, 2002, cannot be seen as admissible by the special prosecutor’s office until March 17, 202 to 208, and it is impossible to conclude that the above statements were inadmissible by the special prosecutor’s statement and prosecutor’s statements made from 70 years of age to 20 years of age, and that there were no further statements made from 207 times to 20 days of examination.

According to the records of this case and the records of the court below's fact inquiry that the non-indicted 8's statement was made on the 7th day after the non-indicted 7's oral statement and the fact that the non-indicted 8's statement was detained in Seongdong-gu office, and that the prosecutor's statement and the statement were suffering from high blood pressure and cerebrovascular, etc. through investigation conducted on 49 occasions from March 4, 2002 to July 25, 202. However, it is acknowledged that the non-indicted 1's statement and the non-indicted 7's oral statement were not made under particularly reliable circumstances or that the non-indicted 1's statement were made under the non-indicted 7's oral statement and that the non-indicted 8's oral statement were made under the non-indicted 7's own reliable circumstances and that the non-indicted 5's statement and the non-indicted 1's statement were made under the non-indicted 8's oral investigation process.

(B) Determination on the assertion that the official duties are not confidential

Defendant 2’s defense counsel asserts that, since the fact that Nonindicted 7’s investigative arrest report on Nonindicted 7 had been predicted in the media several times, any person was in a predicted situation, such as Nonindicted 7’s suspicion reports, and the function of the country threatened by leakage of such fact does not exist, it cannot be deemed that it is a secret in the course of performing his duties pursuant to the relevant Acts and subordinate statutes, and that the above Defendant’s investigation conducted on Nonindicted 8 by Nonindicted 7 cannot be a secret for official duties.

On September 14, 201, the Seoul District Prosecutor's Office reported the investigation of Nonindicted Party 1 to Nonindicted Party 2, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, Nonindicted Party 3, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, Nonindicted Party 3, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, Nonindicted Party 3, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, and Nonindicted Party 3, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 2, Nonindicted Party 1, and Nonindicted Party 3, Nonindicted Party 1, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, Nonindicted Party 3, Nonindicted Party 1, and Nonindicted Party 9, Nonindicted Party 1, Nonindicted Party 2, Nonindicted Party 1, and Nonindicted Party 1, Nonindicted Party 9, were summoneded on the investigation.

According to the above facts, the facts revealed through the media or the inspection of the state, from September 2001, are nothing more than there is a suspicion between Nonindicted 9 and Nonindicted 36, or between Nonindicted 7. The establishment of the internal investigation plan against Nonindicted 7 by the public prosecutor was for seven days from November 5, 2001 and the establishment of a specific summons investigation plan against Nonindicted 7 was for seven days on September 8, 2001. The summons investigation against such Nonindicted 7 by the public prosecutor was an exercise of the investigative authority to clarify the facts of Nonindicted 7,8, and 9, if the plan was leaked or destroyed evidence, and thus there is no possibility that it would interfere with the investigation of the public prosecutor, which constitutes an interim investigation or a specific offense, and there is no possibility that it would interfere with the investigation of Nonindicted 7 and Nonindicted 8's internal investigation or investigation, and there is no possibility that it would interfere with the investigation of Nonindicted 7's internal investigation or investigation, including the investigation report of Nonindicted 8's findings.

Determination as to whether it is confidential in the course of performing duties

Defendant 2’s defense counsel, as the case involving Nonindicted 7 and 9 is under the jurisdiction of the Prosecutor, Defendant 2, the head of the Seoul District Prosecutor’s Office, was not a reporter, and therefore, did not have a status as the principal offender of the above crime.

However, according to Defendant 2’s statement in the court of original instance, statement of reply to inquiry of Nonindicted 39 in the court of original instance, statement of prosecutor’s interrogation protocol on Defendant 2, statement of “written reply to inquiry” prepared by Nonindicted 39, and investigation report of the chief prosecutor’s chief prosecutor’s office in Seoul District Prosecutors’ Office on May 9, 200 on charges of embezzlement, etc., but the emergency arrest of Nonindicted 9 was made at the Seoul District Prosecutors’ Office on charges of embezzlement, etc., but the embezzlement was repaid and the suspicion was not revealed, it was released on the 10th day of the same month. On August 2001, the Seoul Prosecutors’ Office established the Seoul Prosecutors’ Office’ Office as the prosecutor’s second prosecutor’s order on Nonindicted 1, 201, which was the head of the Seoul Prosecutors’ Office’ Office at the time of the investigation, and thus, it was difficult for the Seoul Prosecutors’ Office to have become aware of the fact that Nonindicted 9 was detained on September 29, 2001.

㈏ 무죄부분

① As to the part that the Defendants conspired to notify Nonindicted 8 of the internal investigation plan regarding Nonindicted 7 on November 2001

According to Articles 5 and 6 statements of the prosecutor’s preparation of Nonindicted 8, each written statement of Nonindicted 7, each written statement of Nonindicted 41, and each written investigation report of Nonindicted 41 prepared by the prosecutor’s office (the reservation confirmation report of Nonindicted 8’s U.S. flight aircraft) by the prosecutor’s office, it can be acknowledged that the Defendants divided the fact that the Defendants, on the same day between November 1, 2001 and November 3, 201, would put the phone to Nonindicted 8 and would be punished for the same day as indicated in the above facts charged, as in the above facts charged, to the effect that the Defendants would be informed to Nonindicted 8 of the internal investigation plan on Nonindicted 7 of the central prosecutor’s office, which is a secret in the course of performing their duties known to the Defendants. However, in light of the above evidence and the witness’s statement at the court of the lower court, and Nonindicted 422 preparation, there is no evidence to acknowledge it differently from the facts charged after the prosecutor’s office on November 3, 2001.

Rather, as seen earlier in the determination on Defendant 2’s defense counsel’s assertion, the facts revealed through the media or inspection of the state administration from September 2001 are nothing more than that of Nonindicted 9, Nonindicted 36, or Nonindicted 7. The establishment of the internal investigation plan against Nonindicted 7 by the Prosecutor was between November 5, 2001 and the establishment of a specific plan for investigation of summons by Nonindicted 7 was around September 8, 209. In light of the above, the Defendants were to establish a summons investigation plan against Nonindicted 8 from November 1, 2001 to November 3, 2001, and the general public’s investigation plan regarding Nonindicted 9, Nonindicted 7, and 8 was not reported to Defendant 1 in the future, and thus, the overall investigation plan regarding Nonindicted 7’s secret was not established from November 1, 2001 to 10, and the special prosecutor’s right of investigation was not acknowledged from 10,000 to 20,000.

Therefore, the contents of the above telephone conversations between the Defendants and Nonindicted 8 are expected to commence the investigation of Nonindicted 7 and the special prosecutor’s investigation of Nonindicted 9 case on the basis of the information known to the general public, such as newspaper articles, the contents of the inspection of the state administration, and the wind, etc. that the Defendants had a close relationship with Nonindicted 8, and in such a case, it is deemed that the Defendants’ investigation of Nonindicted 7 and the special prosecutor’s investigation of Nonindicted 9 case will begin in the future, and it is nothing more than that of confirming the facts and informing Nonindicted 8 on the ground that there is concern that there was a suspicion of crime even Nonindicted 8.

② As to the part that Defendant 1 conspired with Defendant 2, the part that Defendant 2 informed Nonindicted 8 of the fact of the above prosecution investigation and the result of investigation by the Central Investigation Office of the Supreme Prosecutors' Office, such as the facts of the offense against Defendant 2.

According to the facts charged, on the premise that there was a public conspiracy between the Defendants when the Defendants informed Nonindicted 8 of the internal investigation plan regarding Nonindicted 7 to Nonindicted 8 in the presence of the Defendants on November 8, 2001, the prosecutor appears to have established a public conspiracy relationship between the Defendants. On the other hand, inasmuch as the Defendants’ act in early November 2001 was judged not guilty, each of the Defendants’ act constitutes a joint principal offender, as long as the Defendants’ act in the early November 2001 was determined not guilty, the prosecutor should establish a internal investigation plan and a summons investigation plan on Nonindicted 7 and reported to Defendant 1 on November 8 or 9, 2001, and there was no evidence to acknowledge that there was a public conspiracy between the Defendants on the fact that the Defendants leaked the secrets of the investigation plan regarding Nonindicted 8 on November 7, 201. However, the witness’s statement at the court of the lower court, preparation by the prosecutor, and the prosecutor’s statement on Nonindicted 7 and 8 on each of the above facts are insufficient.

③ As to the part on November 9, 2001 that Defendant 1 informed Nonindicted 8 of the examination policy of the Central Investigation Division of the Investigation Division against Nonindicted 7 on November 9, 2001

According to the prosecutor's statement Nos. 5 and 6, each statement of Nonindicted 8 on the prosecutor's preparation, each statement of Nonindicted 7 on the prosecutor's protocol, each statement of Nonindicted 7 on the prosecutor's prosecutor's protocol, each investigation report of the prosecutor's chief (report on the telephone conversation details of Nonindicted 8, confirmation of the telephone conversations details, confirmation of subscriber's personal information, each search and seizure warrant executed which is bound on No. 869, 965 of the investigation records of Seoul Prosecutors' Office No. 2002, No. 869, 960) and the investigation report of the preparation of special investigators (report on the execution result of the search and seizure warrant (issued on March 5, 200), each statement of Nonindicted 8 on November 15, 2001: around 16:02 on the same day, Nonindicted 8 was called to the prosecutor's office to make it known to Nonindicted 1, 207, and it can be found to be "No. 86," and the defendant 1 was found to be found to be.

However, around November 15:58, 2001, Non-Indicted 8 had already been aware of the fact that Non-Indicted 8 had already known from Defendant 2 about the fact that he had been subject to investigation by the prosecution about Non-Indicted 7. According to the above facts of recognition, Non-Indicted 8 responded to Non-Indicted 8's solicitation of Defendant 1's prior position against Non-Indicted 7 on the same day at around 16:27 of the same day after being aware of such fact. Thus, the above defendant responded that the above defendant should not be deemed to have disclosed the secrets of ideas, and there is no other evidence to prove that the above act was leaked.

④ On November 20, 2001, Defendant 1 informed Nonindicted 8 of the results of the investigation by the Central Investigation Division of the Prosecutor’s Office on Nonindicted 7 on November 20, 201

According to Articles 5 and 6 statements made by the prosecutor on Nonindicted 8, and each statement made by the special prosecutor on Nonindicted 7, and the investigation report prepared by the special investigator on Nonindicted 1 [the execution result of the warrant of search and seizure (the issuance of March 5, 200)], and each statement made by the prosecutor’s office on November 17, 201, Nonindicted 8 entered the investigation report prepared by the public prosecutor’s office (the confirmation of insured matters) into the public prosecutor’s office, and Defendant 1 called Nonindicted 8 on November 20, 201, and asked Nonindicted 8 on how it was well known to the Chinese and the U.S. on how to investigate Nonindicted 7, in view of the above fact-finding by the special prosecutor’s statement, it can be acknowledged that Defendant 1 was “I think Nonindicted 8 as a special prosecutor’s practice,” and that there was no possibility that the above Defendant was a secret investigation report by the public prosecutor’s office during the investigation period of 0 years and 9 years, and that there was no possibility that it was an investigation report by the public prosecutor’s office.

【Court Judgment of this Court

However, it is difficult to accept the judgment of the court below that there is a lack of evidence to prove that the defendants conspired to divulge the secrets related to the internal investigation of Non-Indicted 7 for the following reasons.

㈎ 인정사실

First of all, according to the following facts, the defendants' statements in the trial of the court of the court and the court of the court of the court below, the witness's statement in the court of the court of the court below and each of the statements in the court of the court of the court below, the prosecutor's protocol of the court of the court of the court below, the prosecutor's protocol of the prosecutor's investigation of the defendants, the prosecutor's protocol of the special prosecutor's protocol of the non-indicted 8, the prosecutor's protocol of the non-indicted 7, and the special prosecutor's protocol of the non-indicted 9 (including the substitute part), the prosecutor's protocol of the non-indicted 7, and the prosecutor's protocol of the special prosecutor's protocol of the non-indicted 10, the written reply of the non-indicted 39, the written statement of the non-indicted 8, 43, 44, and 45 (excluding the written statement submitted to the court of the court of the court of the court of the court of the court of the court below, the prosecutor's

① Nonindicted 8, from around 1967 to around February 1998, from around 196 to around 2002, as the Republic of Korea, entered into a personal guard for the former president from around 196 to around 196, and upon the establishment of Nonindicted 36 Foundation, he was in office as the head of the administrative office from around 1995 to February 1998 as the former president’s proposal, and was in office as a standing director from February 1998 to February 2002, Nonindicted 8 participated in the personnel issues of military personnel, public officials, etc., or arranged criminal cases requested by others through a member of the prosecution by taking advantage of his pro rata with the former president.

At the time of springing around 198, Nonindicted 8 became aware of Nonindicted 7, who joined Nonindicted 36’s supporters’ association, and became close to him. On 198, Nonindicted 8 introduced Nonindicted 7 from Nonindicted 7 to 1998, Nonindicted 7 was aware of Nonindicted 37 Nonindicted 38, an affiliate company of Nonindicted 38 operated by Nonindicted 9, and was paid. Nonindicted 7 was registered as an outside director of Nonindicted 37, who was an affiliate company of Nonindicted 38, around August 1999.

When Nonindicted 9 was investigated by the Financial Supervisory Service due to the suspicion of stock price manipulation or unfair stock trading from June 199 to December 12, 199, Nonindicted 9, through Nonindicted 7, requested Nonindicted 8 to resolve the problems of investigation by the Financial Supervisory Service, and Nonindicted 9 and the Assistant Governor of the Financial Supervisory Service around December 1999, when Nonindicted 46 met with Nonindicted 8’s order, the said investigation was completed as a non-suspect or a warning disposition.

On March 28, 2000, Nonindicted 9 found Nonindicted 7’s office of Nonindicted Foundation 36 along with Nonindicted 7, and opened a cashier’s check equivalent to KRW 50 million in return for arranging Nonindicted 8 to resolve the investigation problem in the Financial Supervisory Service.

② On the other hand, in the special two parts of the Seoul District Prosecutors’ Office, Nonindicted 9 was arrested on May 9, 200 by Nonindicted 47 and 48, and the search and seizure of the office was conducted on the charge of embezzlement of company funds, etc., and on May 10, 200, Nonindicted 49 was released on May 18, 200, at the request of the Financial Supervisory Service for investigation on the charge of stock price manipulation, and Nonindicted 50 was terminated by the decision of the case on July 25, 200, when the head of the special2 division and Nonindicted 50 was discussed on May 18, 200.

③ The Defendants were legal professionals from the same Honam and the post line of university, and Defendant 1 was serving as the Prosecutor General of the Seoul District Prosecutors’ Office at around 192, Defendant 2 was serving as the Prosecutor of the Seoul District Prosecutors’ Office at around 192. While Defendant 1 was serving as the Deputy Prosecutor General of the Supreme Prosecutors’ Office from June 9, 199 to May 25, 2001, Defendant 2 was close to that of serving as the Chief Prosecutor of the Supreme Prosecutors’ Office at the same time.

Defendant 1, while being in office as the Director General of the Ministry of Justice in around 1998, had first met Nonindicted 8 while serving as the Prosecutor’s Office of the Ministry of Justice, there was a friendly gap between Defendant 1 and Nonindicted 8, such as providing meals by gathering Nonindicted 8’s post-ray from Honam’s home by attending the Red Sessioning Meeting of Korea, or having a telephone conversation at least 1-2 on a month. Defendant 2, around 1998, was in office as the head of the Dong Site of the Seoul District Prosecutors’ Office around 1998, while serving as the head of the Dong Site of the Seoul District Public Prosecutor’s Office, he was in office with Nonindicted 8, such as having been present at the Red Session’s drinking Meeting of Korea with Defendant 1, and was close to Nonindicted 8, such as asking him with a 2-3 telephone call or having an inquiry about legal advice or case. Defendant 2 was in office to the extent of “maring”.

In addition, Defendant 2 was aware of the fact that he first met with Nonindicted 7 while working as the head of the Sungnam branch of the Suwon District Prosecutors' Office in around 1996, and that he was aware of the fact that he was aware of the fact that he was aware of the fact that he was aware at that time, and that he was aware of the fact that he was first aware of the fact that he was aware at that time.

④ After Defendant 1 was appointed as the Prosecutor General on May 26, 2001, on August 25, 2001, the Prosecutor of the Central Investigation Division 3 and Nonindicted 39 had started the investigation into Nonindicted 9 who was under suspicion of stock manipulation, embezzlement, etc. at the time on the basis of the intelligence between the Supreme Prosecutors’ Office of Criminal Information and Team, etc.

On September 2, 2001, Nonindicted 39 issued an emergency arrest on Nonindicted 9 on September 2, 2001, and obtained accounting data by conducting search and seizure of Nonindicted 9 offices and affiliates, and reported the fact of emergency arrest to Defendant 1 at a golf course. As such, Defendant 2, who became aware of the above fact, requested Nonindicted 39 to call with Nonindicted 9 who was arrested, but was rejected by Nonindicted 39.

On September 14, 2001, in the course of the National Assembly inspection conducted by the Seoul High School and Seoul District Public Prosecutor's Office, there were three articles stating that Non-Indicted 37's outside directors of Non-Indicted 38's affiliates, who are operated by Non-Indicted 9, have left the joint prosecutor's office of political power in relation to Non-Indicted 9, and Non-Indicted 9 and Non-Indicted 35's external prosecutor's brain pressure theory were raised, the prosecutor's office's reduction investigation or abolition of facts was conducted, and the prosecutor's office's special inspection was conducted on September 20, 201, and Non-Indicted 37's outside directors of Non-Indicted 38's affiliates, who were operated by Non-Indicted 9, were called to Non-Indicted 9 and Non-Indicted 9's special inspection of Non-Indicted 9's office. The prosecutor was established in the Seoul High Public Prosecutor's office on September 20, 2005.

On the other hand, from the end of October 2001, there was an agreement that the political authority should have the special prosecutor handle the case related to Nonindicted 9 as the special prosecutor, and the additional discussions about the specific scope of investigation became known through the media.

⑤ During the process of analyzing the accounting books of Nonindicted Co. 38 and its affiliates and investigating the place of provisional payments, Nonindicted Co. 39 confirmed that Nonindicted Co. 9 was treated as delivering KRW 50,000 to Nonindicted Co. 7 on March 28, 200 on the disbursement resolution, the withdrawal money slip, and the cash log of Nonindicted Co. 39. Based on this, Nonindicted Co. 9 continued to pursue Nonindicted Co. 9, he was aware of Nonindicted Co. 8’s introduction from Nonindicted Co. 7 around November 3, 200, and Nonindicted Co. 7 paid KRW 50,000 to Nonindicted Co. 36 on March 28, 200, Nonindicted Co. 36 was required to secure the statement that the purchase price of Nonindicted Co. 36’s goods was included in the name of purchase. The said fact was immediately reported to the chief of the Central Investigation Division and Defendant 1.

Defendant 1 met Defendant 2, who was in office as the chief prosecutor of the Seoul District Prosecutor's Office at the Prosecutor's Office twice a week according to the schedule of the interview with the chief prosecutor of the Seoul District Prosecutor's Office. On November 3, 2001, Defendant 1 asked Nonindicted 8, who was in office as the chief prosecutor of the Seoul District Prosecutor's Office at the Seoul District Prosecutor's Office, or at any place where two persons were in office, to call Nonindicted 8 with the office of the Prosecutor's Office, and to make an investigation with Nonindicted 8 on Nonindicted 7 in relation to Nonindicted 9. Even if Nonindicted 7 was investigated, Defendant 1 asked Nonindicted 8 to the effect that "I will not know about the her punishment," and that "I will not make an investigation with Nonindicted 1's phone, and that he will not make an investigation with Nonindicted 8's phone, and that he will not make it possible to make the Defendant 1 to make the said investigation."

After the above currency, Nonindicted 8 followed Nonindicted 9's cashier's checks received from Nonindicted 9, which he had to think that he had received KRW 50,00 from Nonindicted 9,00. In November 5, Nonindicted 8 promised the U.S. flight machine.

④ On November 6, 2001, Defendant 2 completed the interview with Defendant 1, 16:16:16, and around July 16:16, and around 16:19, Defendant 2 sent a call between Nonindicted 8 and 13 seconds, and 58 seconds again. On August 15:53, around 19, around 19:3 minutes, around 18:16, around 19 seconds, around 16:4, around 18:41, around 18:20 seconds, and between Nonindicted 7 and Nonindicted 8 at around 4:4, around 18:44, respectively. At the time, the case in which Nonindicted 7 was accused and the case in which the complaint was filed was pending in the Seoul District Prosecutor’s Office, and the case in which Nonindicted 7 had mainly divided the conversations on the handling of the case.

around August 9, 2001, Nonindicted 39 reported to Defendant 1 the plan to summon Nonindicted 7 and investigate it. Defendant 1 finished an interview with Defendant 2 on November 9, 200, Defendant 1 called Nonindicted 8 and 57 seconds and 12:35 again for two minutes and 14 seconds.

At around 13:33, immediately after the call as above with Defendant 1, Nonindicted 8 stated that, while making a telephone conversation with Nonindicted 7 and Nonindicted 59 for a period of 13:33, Defendant 1, Nonindicted 8 called, “I would like to go to the U.S. where I would have been contacted in the prosecutor’s office, and KRW 50,000,000,000,000,000,000,000, were to be made between Nonindicted 7 and Nonindicted 7,” and that Nonindicted 7 would be said to be “I would go to go to know about whether I would be well treated, I would like to know about whether I would have received 5,00 won, and we would like to know that I would like to know that I would like to go to know.”

After that, at around 15:56, around 15:57, Defendant 2 attempted to make a telephone call with Nonindicted Party 8, at around 15:58, Defendant 2 had been connected with Nonindicted Party 8 for a period of one minute, and told Defendant 8 that “I am well against Nonindicted Party 7 who is not aware of the fact that I would be investigating Nonindicted Party 7 in the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face of the face

7) Accordingly, at around 16:27, Nonindicted 8 called Defendant 1 to the effect that “ Nonindicted 7 would help Nonindicted 7 get the investigation monthly.” Defendant 1 called Nonindicted 8 at around 17:17 on the same day to the effect that “ Nonindicted 9 would have the special inspection of the instant case,” and “ Nonindicted 9 would have to go to the special inspection of the instant case, so it would have to be thoroughly examined.”

Non-Indicted 8 left the Republic of Korea on November 9, 199, and Defendant 1 left the Republic of Korea to China to participate in the Prosecutor General on November 10.

④ On November 13, 2001, Nonindicted 39 confirmed that Nonindicted 7’s wife Nonindicted 52 used most of the said cash as a mutual agreement amount for Nonindicted 7 related criminal cases, as well as for Nonindicted 7’s statement that Nonindicted 9 paid KRW 50 million to Nonindicted 7 in cash in the name of monthly salary or retirement pay, and Nonindicted 36’s goods purchase. Nonindicted 7 also stated that Nonindicted 36’s cash was paid KRW 50,00 in cash. In addition, Nonindicted 7’s wife Nonindicted 52 used the most of the said cash as a mutual agreement amount for Nonindicted 7 related criminal cases.

Defendant 1 returned from China on November 15, 199, and Nonindicted 39 reported the investigation results on Nonindicted 7 as above to Defendant 1 on November 16, 199, and Defendant 1 completed an interview with Defendant 2 on November 16, 199.

① On November 17, 2001, Nonindicted 8 returned to the United States on and around 09:29: (a) around 09:29, Nonindicted 7 and 29: (b) around 12:28; (c) around 21:30; and (d) around 13:33; (b) around 13:53; (c) around 13:53, Nonindicted 7 and 25 seconds; and (d) around 14:08, Defendant 2 and Nonindicted 30 seconds on Nonindicted 7’s investigation; and (e) around 15:08, Defendant 2 did not use the money as activity expenses for which Nonindicted 7 had received KRW 50,000,000,000, as part of outside directors had not received KRW 500,000.

(10) On November 18, 2001, Nonindicted 8 and Nonindicted 7 met, Nonindicted 7 told Nonindicted 8 that Nonindicted 7 “I go to the wife after undergoing a serious investigation on the water department,” and Nonindicted 8 said that Nonindicted 7 “I was a person who notified of the central investigation authority’s internal investigation plan and asked him/her to write him/her, and Nonindicted 8 was a person who was in charge of the internal investigation authority, and Nonindicted 8 was a person who was in charge of the internal investigation authority,” and Nonindicted 7 said that “I was a person who was in charge of the internal investigation authority.”

On November 20, 2001, Defendant 1 sent a phone call to Nonindicted 8 for three minutes and sent a gift to the former president of Kim Jong-young in China for 18 minutes, followed Nonindicted 7’s simple dialogue with regard to Nonindicted 7’s investigation, Defendant 1 responded to Nonindicted 8’s “Is that there was no investigation, and that there was no investigation, and that the contents of the investigation might be said?” As for the physical drinking of Nonindicted 8’s “Is that I would not make an in-depth investigation, I think Is that I would think Is that I would like to think Is Is Is Is Is Is Is Is Is I would like to make a special investigation.” On November 21, 2001, Non-Indicted 8 was investigated “Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is Is.”

Nonindicted 8, around 16:03 on November 21, 11, exchanged between Defendant 2 and Defendant 2, around 58 seconds, around 21:09 on November 23, 11, around 21:30, around 26:36 on November 13:36, and around 14:10 on the handling of Nonindicted 7-related accused complaint cases.

① On December 10, 2001, the Central Investigation Office of the Supreme Prosecutors’ Office took a measure to terminate internal investigation with Nonindicted 7, and Nonindicted 8, around December 22, 2001, in return for the cooperation with Nonindicted 7,000 won, the national housing bonds of the amount of KRW 60,000 were presented to Nonindicted 7. On January 31, 202, Nonindicted 7, who was pending in the Seoul District Prosecutors’ Office, was a summary indictment, and Nonindicted 7, who was a non-indicted 7, was a decision of suspicion against the other party.

On February 26, 2002, Nonindicted 8 was detained by the special prosecutor on the charge that Nonindicted 9 received KRW 50,000 from Nonindicted 9 as above, and was sentenced to imprisonment with labor for one year at the Seoul Central District Court on May 31, 2002.

㈏ 판단

① Determination on the credibility, etc. of each of the statements made by Nonindicted 7 and 8

On the admissibility and reliability of Non-Indicted 8’s statement

Examining the process and contents of Nonindicted 8’s statement in accordance with the special prosecutor’s and prosecutor’s statement prepared by Nonindicted 8 (except the statement submitted by Nonindicted 8 to the trial court on July 13, 2004) as evidence, Nonindicted 8 stated that it would be the same as Nonindicted 7, which was well known from the beginning that it was investigated by the special prosecutor’s office on February 25, 2002. However, it is sufficient for the said prosecutor’s office to explicitly reveal who is the prosecutor’s book in light of the human relations with the officers and employees of the prosecutor’s office. However, it is sufficient to acknowledge that the above prosecutor’s statement was made in advance by Nonindicted 8, stating that there was any significant difference between the above prosecutor’s statements and the prosecutor’s testimony and the prosecutor’s statement that was made in advance, and that there was no reason to acknowledge that there was any difference between the Defendants’ testimony and the prosecutor’s statement that was made in advance, and that there was no reason to suspect that there was any change in the content of the aforementioned investigation.

On the other hand, at the trial on July 13, 2004, Nonindicted 8 prepared and submitted a written statement to the effect that the statements made by him at the time of the special prosecutor and the Supreme Prosecutors' Office investigation are different from the facts and that there was no information related to the internal investigation from the Defendants as shown in the facts charged. However, without any explanation from the Defendants, the contents of the written statement are simply a brief description of the contents consistent with the statements made in the investigation and trial process of this case, and as such, the contents of the written statement to reverse the previous statement are simply a detailed description of the contents consistent with the statements made by the Defendants in the investigation process of this case, and as it is naturally consistent with other evidences such as Nonindicted 7's statements, their credibility is significantly lowered when compared with the statements made in the investigation process of this case, and thus, the contents of the written statement to reverse the previous statement are not trust.

On the other hand, there is no motive or reason for Nonindicted 7 to make a false statement that is clearly unfavorable to the Defendants at the time of the investigation by Nonindicted 7’s trial, the lower court’s trial, the prosecutor, and the special prosecutor’s report. However, it is determined that the credibility of the statement can not be rejected without permission on the following grounds: (a) there is no motive or reason for Nonindicted 7 to make a false statement that is clearly unfavorable to the Defendants; (b) the contents of the statement are not only the Defendants, but also the contents of Nonindicted 7’s statement are clearly unfavorable and unhonorary; and (c) there is a consistent and detailed

In particular, in the process of being investigated by the Central Investigation Office of the Supreme Prosecutors' Office through the special prosecutor, Nonindicted 7 testified around November 14 and 14:00 from the beginning in the process of being investigated by the Central Investigation Office of the Supreme Prosecutors' Office through the special prosecutor, and there was a consistent argument that Nonindicted 8 was to receive and receive the investigation in detail. At that time, at around 16:30, Nonindicted 7 had consistently asserted that he was to talk with Nonindicted 8. In comparison with Nonindicted 8 at the Supreme Prosecutors' Office, Nonindicted 8 was not clear, but at around 16:00 on that day, the date was found to be only one minute of the record that was sent from around 16:02 to around 16:02, and that the date was different from that of his memory, and that it was also found that Nonindicted 3 was to have been recorded in the first instance court’s first instance court’s first instance court’s statement during the period of 16:01 to 15:300 on the date when he was bound to 19:16.25.

(2) Detailed review of facts charged

On November 2001, the part that the Defendants made a telephone call with Nonindicted Party 8.

On November 3, 2001, the lower court acknowledged that the Defendants had yet to receive a report on Nonindicted 7’s internal investigation from Nonindicted 39 at the time when the Defendants made a phone call to Nonindicted 8, and Nonindicted 39 had first made a report on Nonindicted 7’s internal investigation on November 5-7, 2001. However, Nonindicted 39 was between Nonindicted 39 and Nonindicted 8’s children from Nonindicted 9 and Nonindicted 50 million won paid to Nonindicted 7, which included Nonindicted 36’s name for the purchase cost of the goods of Nonindicted Foundation 36, and it is evident that the period when the Defendants reported the contents to Defendant 1 is around November 3, 201, which was prior to Nonindicted 8’s phone call to Nonindicted 8.

Examining the lower court’s reply to the fact-finding by Nonindicted 39, which used Nonindicted 39 as material specifying the reporting time of Nonindicted 39, the report of Nonindicted 9’s statement to Defendant 1 was made on May 7, 11 to Defendant 1. The reason is that the above report was made separately before February 3, 199, and the report of Nonindicted 7’s summons plan was clearly made on November 10 or August 9, 199, which was before the date when Defendant 1 left China, and thus, it is deemed that the report of the above contents was made on May 7, 199, which was before December 2-3, 200, and it is difficult to believe that it was made not by memory, but by an ambiguous trend.

Rather, according to Nonindicted 3’s written reply regarding the above investigation report, the internal investigation record at the time begins with a copy of the fund log, statement statement, and disbursement statement prepared as of November 6, 2001, and according to Nonindicted 39’s written reply regarding the above investigation report, it is because: “The first investigation report made as of November 6, 200 on the internal investigation record was directed the head of Nonindicted 44 to prepare an investigation report at that time. According to Nonindicted 3’s instructions to prepare an investigation report on the basis of the facts so confirmed until now, and the head of this fraternity prepared an investigation report at that time.” As seen earlier, according to Nonindicted 3’s instructions to arrest Nonindicted 1 on September 2, 200, Nonindicted 3 and Nonindicted 9’s written instruction to arrest Nonindicted 47, which had already been secured on September 1, 201, and the time when Nonindicted 3 and Nonindicted 9’s written instructions to arrest Nonindicted 37, which had already been issued prior to the arrest of Nonindicted 39-1.

In addition, above all, the contents that the Defendants informed Nonindicted 8 to Nonindicted 8 by telephone refer to “ Nonindicted 7 is an exchange of money in Nonindicted Company 9,” and this is consistent with the internal investigation confirmed by Nonindicted 39’s statement and daily funds report, etc., which Nonindicted 39 reported to Defendant 1, and there is no specific information that Nonindicted 7 left with money from Nonindicted 9 at the time of media, etc., as seen above, there is no distribution of information that Nonindicted 7 left with money from Nonindicted 9. Thus, it is evident that Defendant 1 was merely a way to make the above accurate internal investigation information available only through the report of Nonindicted 39, and it is evident that it was impossible to obtain the above accurate internal investigation information through the media, inspection of the state administration, or the public morals.

As long as Defendant 1’s business of receiving accurate reports on the situation of internal investigation from Nonindicted 39 and it is recognized that the Defendants delivered the contents thereof by telephone to Nonindicted 8, it is natural to view that the Defendants sent the contents thereof by telephone to Nonindicted 8 immediately after the Defendants received the report from Nonindicted 39, and it is difficult to view that the Defendants, without any special opportunity, had included the contents accurately consistent with the situation at the time of internal investigation in one story in which the Defendants were able to listen to the rumors, etc. between three and one storys without a specific opportunity. It is not recognized as a fact contrary to the empirical rule.

Furthermore, the above contents were the internal investigation team of the Supreme Prosecutors' Office, the Central Investigation Team of the Supreme Prosecutors' Office, and the reporter, as well as the media at the time, and it is apparent that if the contents are leaked to the outside, there is a risk that a person subject to investigation, such as Nonindicted 7, etc., may escape or manipulate or destroy relevant evidence or statements based on the above information, thereby causing a fatal obstacle to the internal investigation that will progress in the future. Thus, the above information is a secret in the line of duty to be protected for the internal investigation of the prosecutor.

As above, Defendant 1 received a report from the Prosecutor General, who is in the process of Nonindicted 9-related investigation, to the Nonindicted 39 that he paid KRW 50,00 to Nonindicted 7 in the accounting book of Nonindicted 9, and then delivered the contents thereof to Nonindicted 8 along with Defendant 2 constitutes an act of secrets in the course of performing official duties. Defendant 2 also considered the relationship with Nonindicted 7, 8, and 9 as the chief prosecutor of the Seoul District Public Prosecutor’s Office, and took advantage of the status of the chief prosecutor of the Seoul Public Prosecutor’s Office, and then made Nonindicted 8 call the above internal information to Nonindicted 8 and notified Defendant 1 of the above internal fact information and had Defendant 1 divulge specific internal fact information again, the act cannot be exempted from liability as a joint principal offender of the crime of divulgence in the course of official duties.

Meanwhile, inasmuch as it is recognized that Nonindicted 8 informed Nonindicted 7 of the fact of summons inspection from around 13:3 to 13:35, as seen above, the fact that Defendant 1 informed Nonindicted 8 of the fact of Nonindicted 7 summons inspection through telephone conversations with Nonindicted 8 between 11:14 and 12:35, the fact that Nonindicted 8 knew Nonindicted 8 of the fact that Nonindicted 7 summons inspection was conducted through telephone conversations with Nonindicted 8 at around 11:14, the immediately preceding person, and 12:35, may be confirmed difficult. Prior to each of the above calls, Defendant 1 was sufficiently informed Nonindicted 8 of the fact that Nonindicted 7 summons inspection plan was conducted by Nonindicted 39, and that the contents delivered by Nonindicted 8 to Nonindicted 7 were imminent at the time of summons inspection, and that it was excessive time for Defendant 1 to view that Nonindicted 8 and his defense counsel had already been summoned to Defendant 1, who had known of the fact that he had been summoned for Nonindicted 8’s speech investigation.

On the other hand, taking account of the fact that Defendant 2 finished an interview with Nonindicted 1 on November 9, 2001, Defendant 2: (a) phone call for 15:58, and told Nonindicted 8 that “I would know about whether I would be able to investigate Nonindicted 7 in the open space within the open space;” (b) as seen earlier, the lower court determined that Defendant 2’s above act constitutes a crime of divulgence of secrets for official duties, and there is insufficient evidence to recognize that I committed an investigation jointly with Defendant 1; (c) as seen earlier, the Defendants notified Nonindicted 8 of the fact that I would be subject to investigation by Nonindicted 7 on November 3-4, 201, as well as that I would have been summoned by the Prosecutor General at the time of Nonindicted 1’s external interview with Nonindicted 8, and that I would have been summoned by Nonindicted 10 on November 8-19, 201, and that I would have been summoned by Nonindicted 2, who had been subject to investigation by the Prosecutor General at the time of Korea.

Above all, it is consistent with the empirical rule that Defendant 2 informed Nonindicted 8 of the fact that “I am well against Non-Indicted 7 who may not know about the investigation of Non-Indicted 7 at the prosecutors’ meeting” is consistent with the preceding day or on the same day with the contents reported by Non-Indicted 39 to Defendant 1. At the time, Defendant 2 was the most flexible and best way to obtain information on the summons investigation plan with respect to Non-Indicted 7, and it is consistent with the fact that Defendant 2 obtained the above information through Defendant 1.

As long as Defendant 1 received an accurate report on the summons investigation plan from Nonindicted 39 or following the date, and it is recognized that Defendant 2 delivered the contents thereof by telephone to Nonindicted 8, it is natural to view that Defendant 1 and Defendant 2 sent the contents thereof to Nonindicted 8 immediately after Defendant 1 received the report from Nonindicted 39, and Defendant 2 received accurate information on the summons investigation plan regardless of whether Defendant 1 was Defendant 1, and delivered it to Nonindicted 8, the lower court’s fact-finding that Defendant 2 obtained accurate information on the summons investigation plan to Nonindicted 7 and delivered it to Nonindicted 8 cannot be acknowledged as a fact-finding in this case, in which there is no evidence to deem that Defendant 2 was much more than Defendant 1 and there is no way to obtain accurate information.

Furthermore, as seen above, it is evident that if the above Nonindicted 7, which was the central investigation team of the Supreme Prosecutors' Office at the time, and the investigative team of the Supreme Prosecutors' Office at the time, was leaked to the outside, there is a risk that a person subject to investigation such as Nonindicted 7, etc. might escape, or manipulate or destroy relevant evidence or statements, thereby causing a fatal obstacle to the internal investigation to the future. As seen earlier, if Nonindicted 7 was not aware in advance of the summons investigation schedule or the account books of Nonindicted Company 9, in fact, he was summoned to the Central Investigation Division of the Supreme Prosecutors' Office, and he was confirmed to have caused a critical obstacle to the confirmation of truth through internal investigation by receiving a prior notice of the above situation and preparing for a false statement, even though he was not aware of the fact that he had received cash KRW 50 million from Nonindicted 9, and then prepared to make a false statement, it is evident that the Defendants’ act of divulging such information together with the above information may not be exempted from liability as a joint principal offender of

(Defendant 2’s defense counsel asserted that Defendant 2’s act does not constitute confidential since Defendant 2 had already been informed of the same contents from Defendant 1 before notifying Nonindicted 8 of the fact of summons and investigation that he had been subject to Nonindicted 7’s summons and investigation. However, Defendant 2’s series of acts by Defendant 2 constituted a collaborative act conducted under the agreement to protect Nonindicted 8 in a common relationship with the Defendants by running his internal investigation related to Nonindicted 9, and by doing so, in order to protect Nonindicted 8 in a common relationship with the Defendants. Thus, even if Defendant 2 first informed Nonindicted 8 of the same contents before phone, it cannot be treated as being known to Nonindicted 8, as being known by Nonindicted 8, since it cannot be accepted).

The part that Defendant 1 made a telephone call with Nonindicted 8 on November 9, 2001, 16:27 and 17:17.

On the other hand, as seen earlier, Defendant 1 and Nonindicted 8 were close to the public prosecutor. As seen above, Defendant 1, along with Defendant 2, had already notified Nonindicted 7 of the Central Investigation Division’s internal investigation plan and summons investigation plan on November 9, 201, so that it can be prepared for the investigation. In light of the fact that Defendant 1 and Nonindicted 8 provided an explanation that the said investigation would be conducted more than 52 seconds and 1 minute 1st and 17, the said investigation would be conducted more than 8 minutes, and that Defendant 1 provided an explanation that the said investigation would be conducted more thoroughly than 19:45 minutes, and that Nonindicted 8’s internal investigation was conducted more than 1:25 minutes before and after the investigation, Defendant 1 would have to be thoroughly informed of the fact that the said investigation was conducted more than 5:25 minutes before and after the investigation of the said case.

If Defendant 1’s above statement was to be disclosed through strict investigation, it would change his behavior that had been considered to prepare for the investigation by providing Nonindicted 8 with information related to the internal affairs in the immediately preceding year, and there was no change in the attitude of Defendant 1, and even according to Defendant 1’s own assertion, it is difficult to understand in that it was the situation where Nonindicted 8’s cooperation should be obtained as a gift to the former president, and it was not a time for Nonindicted 8 to be crypted. Thus, it is clear that the lower court’s thoroughly notified Defendant 1 of the contents of the telephone at the time that the lower court erred in interpreting the contents of the above conversation.

As seen above, it is clear that Defendant 1’s act of notifying Nonindicted 8 of his investigation by the Central Investigation Division to thoroughly prepare for the investigation by a special prosecutor is clearly revealed that the act of Defendant 1 clearly disclosed internal investigation information about the central investigation expenses, and if the above contents are leaked, it would pose a fatal obstacle to the internal investigation to be conducted in the future due to the escape of a person subject to investigation, the manipulation of evidence or statement, and the destruction of damage. Thus, it is clear that Defendant 1’s act constitutes a secret act in the course of official duties (However, there is no evidence to deem that Defendant 2 participated in the above act by Defendant 1, and therefore, the above act is deemed to have been conducted solely by Defendant 1. However, as long as the defendants’ act constitutes a crime as a whole, since the rest of the defendants’ participation constitutes a crime as a whole, it does not state that Defendant 1 was done separately only this part in the statement of criminal facts).

A part of the call made by Defendant 2 with Nonindicted 8 around November 17, 2001, around 15:08

As seen earlier, the Defendants, at around March 17 and 21, 2001, sent the phone call to Nonindicted 8, as well as on November 9, 2001, so that they can prepare for the investigation by the Central Investigation Division while informing Nonindicted 8 of the information on Nonindicted 7’s internal affairs by telephone at a number of times. The Defendants are only 1 minute 18 seconds at around November 9, 2001, around 19:45, around 20:27, and 15 seconds at around 17:15 seconds. According to the wired and wireless telephone contents, Defendant 1 was only 4 minutes of telephone call from Nonindicted 2 and 5 seconds at around November 17:21, 201 (the right of investigation record No. 25965). Considering that Nonindicted 2 had no choice but to obtain an accurate interview with Defendant 1, as seen earlier, on the grounds that they had no contact with the Prosecutor General at the time of having been confirmed on November 16, 2016.

In addition, the contents that Defendant 2 informed to Nonindicted 8 are as follows: “In some outside director activities (which appears to refer to the purchase cost of the latter part of Nonindicted Foundation 36) by receiving KRW 50,000 from Nonindicted 7,00, and some of them are deemed to have been paid, and there is no problem.” As seen earlier, it is consistent with the empirical rule to regard Defendant 2 to have obtained the above investigation result as Defendant 1 through Defendant 1 in that it is accurately consistent with the contents that he reported to Defendant 1 in the Central Investigation Division at the time. As long as it is acknowledged that Defendant 1 received the accurate report on Nonindicted 7’s investigation from Nonindicted 39 and delivered it to Nonindicted 8, Defendant 2 should be deemed to have obtained the content on the basis of the empirical rule after Defendant 1 received the report from Nonindicted 39, and Defendant 2 could not obtain accurate information from Defendant 1 to Nonindicted 8, regardless of the fact that Defendant 2 and Defendant 2 could not obtain any information from Defendant 1.

The result of the investigation conducted by the Defendants in collusion with Nonindicted 7 to Nonindicted 8 as above includes the interim judgment of the Central Investigation Division that the Defendants failed to discover any particular suspicion. It is apparent that the contents and the interim judgment of the prosecutor’s investigation of the internal investigation case might cause interference with the internal investigation because, if leaked to the outside, the person under investigation could escape, manipulate, destroy evidence, or make a statement distorted or concealing facts, and thus, the Defendants cannot be exempted from the liability for the crime of divulgence of official secrets as to the leakage of the investigation result of Nonindicted 7’s internal investigation.

on November 20, 2001, part that Defendant 1 calls with Nonindicted 8 around 19:30

In addition, considering the fact that the Defendants had been informed to Nonindicted 8 of the Central Investigation Division’s investigation plan regarding Nonindicted 7 several times, and had Nonindicted 8 prepare for the investigation, Nonindicted 7 informed Nonindicted 8 of the result by telephone on November 17, 2001, and Nonindicted 8 received a serious investigation from Nonindicted 7 on November 18, 2001, the lower court deemed that Nonindicted 8 had been aware of the fact that the Defendants had been subject to investigation by the Central Investigation Division, and that Nonindicted 7 had not been informed of the fact that the Defendants had been subject to investigation by the Central Investigation Division, and that Nonindicted 8 had been subject to investigation by the Central Investigation Division on Nonindicted 7, which had been subject to accurate information on the investigation results, and that Nonindicted 8 had been aware of the fact that the Defendants had been subject to investigation by the Central Investigation Division on Nonindicted 8’s own criminal punishment, and that there had been an excessive interpretation of the content of the investigation results by Nonindicted 1, who had been subject to investigation by the Central Investigation Division on Nonindicted 17.

If Defendant 1’s horse, like the judgment of the court below, merely mentions the fact that the special prosecutor would be again investigating the above case, it is nothing more than that of Non-Indicted 8, which means that such circumstance is sufficiently anticipated through the media, etc., and therefore, it is nothing more meaningful. Non-Indicted 8, who hears such a horse, was investigated by Non-Indicted 7 in the Central Investigation Division, may lead to the criminal punishment of Non-Indicted 7 or the additional investigation of Non-Indicted 8 or criminal punishment of Non-Indicted 8, or could not obtain any information about whether the result of the investigation would lead to the special prosecutor’s criminal punishment or the additional investigation of Non-Indicted 7, or any other content. In particular, Non-Indicted 8 did not know Non-Indicted 7 on November 18, 201 that “I will report to the new chief of the National Assembly and report only once,” but it is hard to say that Non-Indicted 8’s statement was made at all again on November 27, 2001.

As above, Defendant 1’s act of notifying Nonindicted 8 of the contents and interim judgment of the Central Investigation Division against Nonindicted 7, as to the investigation of Nonindicted 7, is likely to seriously obstruct the internal investigation of Nonindicted 7, which was in progress by the Central Investigation Division at the time (in relation to this, Nonindicted 39 made an investigation by having the intent to thoroughly investigate all suspicions at the time of the inquiry reply of the lower court, but the investigation team as an investigation team is anticipated to thoroughly investigate all suspicions), and it is clear that it is an act that clearly anticipated to be carried out immediately that the special prosecutor’s investigation activities at the special prosecutor’s office, which was anticipated to be carried out, may not be exempted from criminal liability for the crime of divulgence of official duties (However, there is no evidence to deem that Defendant 2 participated in the above act by Defendant 1, and thus, the above act is deemed to have been carried out solely by Defendant 1, but as long as the act constitutes the remainder of the Defendants’ participation together, Defendant 1 does not provide a separate statement in this part of the criminal facts).

㈐ 그렇다면, 피고인들이 공모하여 공소외 7 내사 관련 공무상 비밀을 누설하였다는 공소사실은 그 증명이 충분한 것임에도, 원심이 피고인들에 대한 위 공소사실의 입증이 부족하다는 이유로 피고인 1에 대하여는 전부, 피고인 2에 대하여는 일부 무죄를 선고한 것은, 사실을 오인하여 판결에 영향을 미친 위법을 범한 것이므로 그 부분 검사의 항소는 이유 있고, 위와 같은 이유로 원심 판결 중 위 무죄부분 전부와 이와 일죄의 관계에 있는 유죄부분이 같이 파기되는 이상, 피고인 2가 서울지방검찰청 검사장의 지위에서 취득한 공무상 비밀을 누설하였다고 원심이 직권으로 인정한 부분의 당부에 대하여는 나아가 살필 필요가 없는 것이므로, 그와 관련된 피고인 2의 항소이유에 대하여는 따로 판단하지 않는다.

3. Conclusion

Therefore, since the prosecutor's argument of misunderstanding of facts or misunderstanding of legal principles is well-grounded, all the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following decision is

Criminal facts

The facts constituting the crime against the Defendants recognized by this Court are as stated in Section 2.1(a), (b), (c) and (i) above.

Summary of Evidence

As to Defendant 1’s disclosure of confidential information on official duties related to Nonindicted 1’s investigation:

1. Part of the statement by Defendant 1 at the trial court

1. The defendant 1's partial statement in the trial records of the court below

1. In the trial records of the court below, all or part of the witness non-indicted 1, 2, 3, and 4 are written.

1. The statement of the respective statements made by Nonindicted 2, 3, 11, and 18 and the statement of the written judgment in the protocol of the case (case number omitted) delivered on November 1, 2002 by the Seoul District Court (case number omitted)

1. Each statement made by each prosecutor on Nonindicted 1, 2, 3, 4, 12, and 14

1. Each statement in the preparation of Nonindicted 1, 2, 12, and 14

1. Statement of Nonindicted 12’s reply to the fact-finding inquiry by the lower court

1. Each description of interview data copies, business status copies, data copies, information reporting copies, and file investigation reports (No. 202No. 65897, page 515-520, page 521-523, page 532-543 of the investigation records);

As to Defendant 1’s abuse of authority and obstruction of another’s exercise of rights:

1. Part of the statement by Defendant 1 at the trial court

1. The defendant 1's partial statement in the trial records of the court below

1. The part of the witness’s statement in the trial records of the court below (excluding the part on which Nonindicted 23 and 27’s statement in Nonindicted 5’s statement is made) is written by Nonindicted 3 and 5

1. Each of the statements made by the prosecutor in relation to Nonindicted 3, 5, 11, 18, 20, 23, 24, 27, 28, 32, and 33 (excluding all of the statements made by Nonindicted 5 with respect to Nonindicted 23, and 27 among the statements made by Nonindicted 5)

1. Statement of Nonindicted 31 on the investigation officer’s statement

1. Statement of Nonindicted 24 Preparation

1. Part of the reply to the fact-finding by Nonindicted 23 and 27 to the lower court

1. The judgment of the case (case number omitted) delivered on November 1, 2002 by the Seoul District Court, and the judgment of the District Prosecutors' Office of Ulsan District Court (case number omitted) dated 2000, respectively, and the statement of a copy of the records of domestic investigation and history recorded; and

As to the defendants' criminal facts of secrets relating to non-indicted 7's internal investigation:

1. Defendants’ partial statements at the court of first instance

1. The Defendants’ partial statements in the trial records of the court below

1. Statement of the witness at the trial court of the non-indicted 7's party branch

1. Each statement of the witness Nonindicted 7 and 42 in the trial records of the court below

1. Each statement made by the prosecutor in the suspect interrogation protocol against the Defendants

1. Each statement of the prosecutor’s protocol of the special prosecutor’s statement (including the replacement part), Nonindicted 7, 8, and 9 with respect to Nonindicted 8 (including the replacement part)

1. Each statement made by the special prosecutor on Nonindicted 7 and 10

1. Each description of the written reply in Nonindicted 39, Nonindicted 8, 43, 44, and 45 (other than the written reply submitted by Nonindicted 8 to the trial court on July 13, 2004)

1. Statement of Nonindicted 39’s reply to fact-finding by the lower court

1. Each entry of the results of inspection of the Supreme Prosecutors' Office, copies of prosecution papers of the Supreme Prosecutors' Office, the special inspection headquarters, and the details of telephone calls;

Application of Statutes

1. Article applicable to criminal facts;

Defendant 1: Article 127 of the Criminal Act (the point of divulgence of secrets relating to Nonindicted 1’s official duties: Imprisonment option), Article 123 of the Criminal Act (the point of abuse of authority and obstruction of exercise of rights: Imprisonment option), Articles 127 and 30 of the Criminal Act (the point of divulgence of secrets relating to Nonindicted 7’s official duties: Selection of imprisonment)

Defendant 2: Articles 127 and 30 of the Criminal Act and the text of Article 33 (Selection of Imprisonment)

1. Aggravation of concurrent crimes (Defendant 1);

Article 37 (Aggravation of Punishment as provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Punishment)

1. Suspension of execution;

Article 62 (1) of the Criminal Code ( normal consideration, such as the fact that all defendants have no record of punishment before being punished, and have been performing their duties as prosecutor for a long time)

Judges Noh Young-dae (Presiding Judge)

심급 사건

-서울중앙지방법원 2003.12.2.선고 2002고합717

서울고등법원 2004.8.20.선고 2003노3391

-대법원 2007.6.14.선고 2004도5561

원심판결

-서울중앙지방법원 2003. 12. 2. 선고 2002고합717, 718(병합) 판결

본문참조판례

-대법원 2000. 12. 27. 선고 99도5679 판결

본문참조조문

-변호사법

-형법 제30조