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서울고법 1962. 5. 2. 선고 62도41 형사상고부판결
[직무유기피고사건][고집상고형,173]
Main Issues

the offense of abandonment of official duties where he/she does not accused of the embezzlement of public funds of his/her subordinate staff;

Summary of Judgment

The duty under Article 122 of the Criminal Code refers to the original duty under the Public Officials Act as a public official takes charge of his/her position. The public official's duty does not include the duty of accusation under Article 234 (2) of the Criminal Procedure Act, which is incidental or derivatively derived from his/her status relationship. Thus, even if the defendant neglected his/her duties without accusation even though he/she knew of the embezzlement of public funds of his/her subordinate employee, it cannot be deemed that

[Reference Provisions]

Article 122 of the Criminal Act

Escopics

Defendant

upper and high-ranking persons

Defendant

Judgment of the lower court

Seoul District Court Prosecutor

Text

The judgment of the court below is reversed.

The case is remanded to the Seoul District Court public prosecution division.

Reasons

The ground of appeal No. 1 is as stated in the annexed sheet No. 3, and the facts acknowledged by the court below cannot be deemed as satisfying the requirements for the crime of abandonment of official duties under the Criminal Act even though it becomes a cause for disciplinary action under the National Public Officials Act. However, the court below erred by misunderstanding the facts. The first ground of appeal is examined as to the first ground of appeal and the second ground of appeal cited by the court below. The court below did not accept a report on the illegal use of public funds from the non-indicted 2 in the first instance court, who was the non-indicted 3 in office, from time to time by the defendant who was the non-indicted 2 in Incheon, and did not inform the defendant of the fact that the non-indicted 3's duty of abandonment of official duties was not carried out by the non-indicted 3 in the above article. Thus, the court below's decision that the non-indicted 2's duty of abandonment of official duties and the second ground of appeal No. 800,000,000 won will be established without any justifiable reason.

Therefore, in order to re-examine the instant case, the original judgment shall be reversed in accordance with Paragraph 2 of the Addenda to the amended Criminal Procedure Act, Articles 391 and 397 of the Criminal Procedure Act prior to the amendment, and the instant case shall be remanded to the original judgment, and it is so decided as per Disposition.

Judges Hongnam-gu (Presiding Judge)

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관련문헌

- 권진웅 직무유기죄 관한 문제점 재판자료 50집 (하) / 법원행정처 1990

참조조문

- 형법 제122조 (위헌조문)

본문참조조문

- 형사소송법 제234조 제2항

- 형사소송법 제391조

- 형사소송법 제397조