(영문) 대법원 2020.2.27.선고 2016도8741 판결

The part of the judgment below against the Korea Housing Finance Corporation shall be reversed and that part of the case shall be remanded to the Seoul Central District Court.

The remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Whether the Korea Housing Finance Corporation has violated;

A. Summary of the facts charged

On July 2014, the Defendant: (a) prepared a list of the candidates for the professor group evaluation committee members (10 persons) who are the members of Nonindicted Corporation 1 (hereinafter referred to as “Corporation”); (b) prepared a list of the candidates for the professor group evaluation committee members (10 persons; hereinafter referred to as “the instant list”) who are the members of Nonindicted Corporation 1’s executive officers; and (c) prepared a list of Nonindicted Party 2 by allowing Nonindicted Party 2 to inspect the instant list to inspect it and reveal confidential information on the instant project, which is known to him/her in the course of performing his/her duties.

B. The judgment of the court below

For the following reasons, the lower court reversed the judgment of the first instance court which found the Defendant guilty of this part of the facts charged, and found the Defendant not guilty on this part. Of the technical capability evaluation members of the instant project, the instant list includes the name of the candidate for the faculty group, classification by recommendation, the affiliation of each professor, position, and duties in charge. It is difficult to deem that such content is leaked to threaten the functions of the Corporation’s securitization of mortgage-backed claims, housing finance credit guarantee, and reverse annuity mortgage guarantee business, and it cannot be said that the instant list is worth protecting the relevant person’s secret as

C. (1) The purpose of the Korea Housing Finance Corporation is to promote the long-term and stable supply of housing finance, etc. by establishing the Corporation and carrying out the business of securitization of mortgage-backed claims, housing finance credit guarantee and reverse annuity mortgage guarantee, thereby contributing to promoting the welfare of citizens and the development of the national economy (Article 1). This Act and the Act on the Management of Public Institutions, and the articles of incorporation, provide for the specific scope of business of the Corporation run as prescribed by this Act and the articles of incorporation (Articles 3 and 22), and the executives of the Corporation and employees prescribed by Presidential Decree are deemed public officials in the application of the provisions of bribery Act under the Criminal Act (Article 69). In addition, Article 21 of the former Korea Housing Finance Corporation Act (amended by Act No. 15417, Feb. 21, 2018) (hereinafter “Korea Housing Finance Corporation”) shall not divulge any confidential information learned in the course of performing their duties. Article 67(2) provides for a person who divulges confidential information.

In light of the legislative purport of the Korea Housing Finance Corporation Act, the affairs of the Corporation in charge of assisting and supervising the functions of the State housing welfare policy, characteristics of the status of executives and employees, and the language, contents, etc. of the aforementioned provisions, the aforementioned provisions are intended to protect the functions of the State or the Corporation threatened with divulgence of secrets among the former and incumbent executives and employees. Here, the “confidential” should be determined on the basis of whether the disclosure of the relevant facts may interfere with or threaten the achievement of the purposes of the Corporation. Determination as to whether such disclosure may interfere with or threaten the functions of the Committee shall not be limited to those listed in each subparagraph of Article 22(1) of the Korea Housing Finance Corporation Act. (2) According to the reasoning of the lower judgment and evidence duly admitted, the following facts are revealed: (i) The instant project is intended to transfer all of the existing IT infrastructure to a new head office without interruption of its duties; and (ii) the Defendant’s selection of technical capability members in charge of performing the project in order to ensure the smooth implementation of the project by adopting and maintaining various systems, information security negotiations, etc.

Examining the purpose and contents of the instant project, the degree of influence of evaluators on their evaluation in the selection of business operators to carry out the instant project, and the measures taken by the Corporation to maintain security for the candidates and the order of priority in the selection of its members, etc. in light of the legal principles as seen earlier, the list of candidates for evaluators may, even if some of them are leaked, interfere with the fairness and reliability of the results of the instant project, and hinder the stable performance of overall construction work. Accordingly, the list of this case constitutes “a secret, which is worth protecting them as a substantial secret in order to achieve the purpose of the project, and becomes aware of in

Nevertheless, even if the list of candidates is leaked, the lower court determined that it is difficult to view that the function of the State or the Corporation, such as the securitization of mortgage-backed claims, housing finance credit guarantee, and reverse annuity mortgage guarantee, is narrow. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of the "confidential known in the course of performing duties" under the former Korea Housing Finance Corporation Act, thereby adversely affecting the conclusion of the judgment.

2. Whether the Act on the Registration of Real Estate under Actual Titleholder's Name is violated;

The court below maintained the judgment of the court of the first instance which acquitted the prosecutor on the ground that the evidence submitted by the prosecutor alone cannot be deemed to have proved this part of the facts charged without any reasonable doubt, and rejected the prosecutor's allegation of the grounds for appeal for mistake of facts.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. Conclusion

Of the lower judgment, the part of the lower judgment against the Korea Housing Finance Corporation is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating