2018Do19444 Abuse of official authority and obstruction, and violation of the Local Public Officials Act

A person shall be appointed.

Defendant

Law Firm 000

Attorney Kang Young-chul, and Han-young

Attorney Jeon Jong-ho

Law Firm Cheong-song

Attorney Kim Jae-soo, Justice Jin-chul, and Justice Kang Jin-chul

Law Firm Happiness

Attorney Park Young-chul, Lee Dong-young, Hu-young

Jeonju District Court Decision 2018No45 Decided November 16, 2018

July 25, 2019

The appeal is dismissed.

The grounds of appeal are examined.

1. Determination on the abuse of authority and the exercise of rights

A. In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “the abuse of authority and obstructing another’s exercise of rights” means the unlawful exercise of matters belonging to the general authority and authority by a public official, namely, when a public official appears to perform his/her duties in a formal and external manner, or when he/she performs an act other than legitimate authority. Whether a public official constitutes “the abuse of authority and obstructing another’s exercise of rights” should be determined by taking into account all the elements, such as the specific public official’s act of performing his/her duties, necessity and reasonableness at the time of the occurrence of the act, and whether the act of performing his/her duties satisfies the requirements under the Act and subordinate statutes that permit the exercise of authority and subordinate statutes. In addition, “the time when a public official makes another person perform an act without an obligation” refers to the time when the standards and procedure for performing his/her duties specifically stated in the Acts and subordinate statutes, and if a person in charge of duties has been granted an inherent authority and role to apply the standards and procedure for performing his/her duties, it constitutes “the act without obligation.”

23. Supreme Court Decision 2015Do3328 Decided January 2, 201

B. The lower court found the Defendant guilty of abusing official authority and obstructing another’s exercise of rights among the instant facts charged on the following grounds.

1) The Defendant actively participated in the normal work performance rating (hereinafter referred to as “work performance rating”) in accordance with relevant laws and regulations before it takes place, and subsequently assigned a specific public official to a position as a person in charge of personnel affairs according to his or her subjective judgment, and ordered the person in charge of personnel affairs to adjust his or her reputation and reputation, or to change his or her reputation and reputation beyond the scope of authority of the appointing authority under relevant laws and regulations. This constitutes an abuse of authority by the Defendant beyond the scope of authority of the appointing authority under relevant laws and regulations.

2) A person in charge of personnel who prepared a list of candidates for promotion (neither did it be deemed that he/she simply performed a factual act assisting an evaluator and a person in charge of confirmation in the nearest process. It can be deemed that he/she was given the unique authority and role that should be performed in accordance with the standards and procedures for performing duties prescribed by relevant statutes in the nearest process that takes place over several stages. 3) The Defendant was aware of the fact that the appointing authority’s change and adjustment of the order of priority for a specific public official around July 2013 contravenes relevant statutes, and thus, the Defendant was found to have committed an intentional act of abusing authority and

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the intentional act of abuse of authority, causation, and perception of illegality.

2. Determination on the violation of the Local Public Officials Act

For the reasons indicated in its holding, the lower court found the Defendant guilty of violating the Local Public Officials Act among the facts charged in this case, on the ground that the Defendant had exercised undue influence on promotion by ordering the personnel personnel in charge of the personnel administration to pay a specific public official in violation of the relevant statutes and to determine the ranking and rating point in line with the pertinent statutes.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal doctrine on the establishment of a crime of violating the Local Public Officials Act.

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

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Noh Jeong-chul

Justices Kim In-bok