(영문) 전주지방법원 2018.11.16.선고 2018노45 판결

Defendant shall be punished by a fine of KRW 10,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Reasons

1. Summary of grounds for appeal;

(a) According to the Local Public Officials Act, Decree on the Appointment of Local Public Officials, and Rules on the Evaluation of Local Public Officials under the Superintendent of the Office of Education, the Superintendent of the Office of Education provides that the direct superior officers of the public officials subject to the evaluation shall be in charge of the evaluation and confirmation so that the performance rating can be achieved fairly and fairly. A public official subject to evaluation by an independent

In order to review and determine the priority and rating point of the person with appointment authority, the person with appointment authority, and the person with confirmation authority clearly separates the authority to promote.

B. Nevertheless, an ordering the person in charge of personnel management to raise the order of work performance rating for a specific public official in violation of the procedures and standards prescribed by the relevant statutes before work performance rating is performed, or an ordering the person in charge of personnel management to work performance rating differently from the opinion of the assistant superintendent of an office of education who is confirmed, by itself. Considering the fact that there is no order of priority, work performance rating, work performance rating, or order of promotion, unlike the list of candidates for promotion that reflects the intent of the defendant, the person in charge of personnel management has reflected the defendant's intention according to old practice, and the fact that the defendant did not raise any objection to the process does not constitute a non-legal act.

C. The Defendant’s act constitutes the crime of abusing authority and obstructing another’s exercise of rights under the Criminal Act, and constitutes “an intentional act that adversely affects the appointment” under Article 42 of the Local Public Officials Act, by seriously impairing the intent of relevant statutes, which would prevent the person with appointment authority’s re-election of personnel and ensure fairness

D. Therefore, the lower court erred by misapprehending the legal doctrine or erroneous determination that acquitted all of the facts charged of this case.

2. Summary of the facts charged

(a) Status of the defendant;

From July 1, 2010 to June 30, 2014, the Defendant served as the Superintendent of the Office of Education for the First Class B, and from July 1, 2014, B is serving as the Superintendent of the Office of Education for the Second Class B.

(b) Criminal facts;

(1) Abuse of official authority and obstruction

(A) According to the provisions of relevant statutes, the Local Public Officials Act, the Decree on the Appointment of Local Public Officials, and the Rules on the Evaluation of Local Public Officials under the Superintendent of the Office of Education, ① a person who renders an evaluation of service performance (hereinafter referred to as "evaluation person") and a person who verifies performance performance (hereinafter referred to as "verification person") shall evaluate performance of each evaluation period (50%) and perform duties (50%) and objectively evaluate performance of public officials subject to evaluation, and prepare a list of service performance by evaluation unit by integrating the results of the evaluation, and submit it to the Work Performance Evaluation Committee (hereinafter referred to as "Board Chairperson") (hereinafter referred to as "evaluation of service performance"), and ② A committee for deliberation and determination of service performance rating of public officials subject to the evaluation of service performance rating by the above evaluation unit, based on the list of service performance rating of local public officials, (3) If a person who has the appointment authority (hereinafter referred to as "person who has the appointment authority") examines and determines service performance rating of public officials subject to evaluation in the ordinary committee for promotion as above, and (4) if a person who has the appointment authority for appointment authority for the last five years.

In addition, the appointing authority may not designate a person who is immediately superior or higher than the person who is assessed, but the appointing authority shall not be appointed as a person to be confirmed, such as whether the person is not a person to be confirmed, and shall not separate the roles of the person to be appointed, the person to be appointed, the person to be verified, and the committee for deliberation and resolution, and shall not interfere with the deliberation and decision of the committee for deliberation and resolution or the promotion deliberation of the personnel committee or unfairly affect them.

(B) in the first half of 2013 near the year

On July 1, 2013, the Defendant: (a) received a report on the promotion of the first half of the year 2013 from the personnel in charge of general affairs D, etc. from the office of education of the Bdo Office of Education in C; (b) received a report on two persons eligible for promotion from the office of education of the fifth grade local education as of January 1, 2014; (c) made a list of candidates for promotion of class E as of July 31, 2013; and (d) prepared a list of candidates for promotion of class E as of July 31, 2013; (b) prepared a list of candidates for promotion of class E as of the first half of the year 2013; and (c) prepared a list of candidates for promotion of class E as of the first half of the year 2013; and (d) prepared a list of candidates for promotion of class E as of the first half of the year 20 and the second half of the year 20.

As a result, the period of the preceding two years was the F, G, and H whose promotion rank was higher than E, and the rank was the second, third, and fourth of January 31, 2013, respectively, but the order of priority was the third, fourth, and fifth of the promotion candidate list on July 31, 2013, and the order of priority was the fourth, fourth, and fourth of the promotion candidate list on the second half of the year 2012, which was the fourth, among the 64 total number of the promotion candidates, the second, fourth, and seventh of the promotion candidate list was the fourth, which was the first, the fourth, fourth, and fourth, and fourth, which was the first, the second, fourth, and fourth, which was the public official in charge of promotion at the Committee for Promotion, and the second, fourth, third, and fourth, which was the first, fourth, fourth, fourth, and fourth, which was the second, fourth, fourth, fourth, and fourth public official in charge of promotion, who was the first, second, fourth, fourth, fourth, and fourth, second, fourth, second, fourth, fourth, and second, fourth, fourth, fourth, of the promotion.

As a result, the defendant, who is a public official, abused his official authority and made him perform an act that is not obligated to do so.

On July 1, 2014, the Defendant received a report on the promotion of the first half of the year 2014 from those in charge of personnel, such as the head of the general affairs division D, etc. at the office of the above superintendent of education, as well as a report on the promotion of the first half of the year 2015 as of January 1, 2015.

On the other hand, when preparing the first list of candidates for promotion of Grade 5 local facility officers on July 31, 2014, personnel management officers reported the first list of candidates for promotion and the second order of doping to the chief of the administrative bureau and the second chief of the deputy superintendent of the office of education who is assessed in Grade 1, J, and the second chief of the office of education who is assessed in Grade 5, and the second chief of the office of education who is the confirmation. However, the second chief of the office of education was ordered by the subordinate superintendent of the office of education to order the second chief of the office of education in the first half of the year 2014, and the second chief of the office of education also reported the above matters to the defendant. At that time, it is reasonable that the first chief of the office of education was the first second first and second first of the appointment of the officer of the office of education in Grade 5, and the second first and second of the office of education in the first half of the year 2014.

Although the Defendant was reported from personnel officers, such as the chief of the general affairs division, the lower court: (a) neglected the opinion of the vice superintendent of the board of education; (b) made the list of candidates for promotion (draft) on July 31, 2014 by classifying I as those eligible for promotion of higher-ranking rank corresponding to the number of promoted personnel; and (c) made the list of candidates for promotion (draft) on July 31, 2014 to be in line with the above order; and (d) made the list of candidates for promotion at the first half of the year in 2014 to have

Accordingly, personnel management officers, such as the head of the general affairs division D, classify Grade 5 I as persons eligible for promotion of class 4 as persons eligible for promotion of class 5 or lower class in general service at the end of June, 2014 according to the order of promotion candidates, make a report to the head of the administrative bureau, the vice superintendent of the office of education, and the superintendent of the office of education at the end of June, 2014, and receive the examination and decision of the members by preparing a list of records of evaluation units based on them through the committee of deliberation and deliberation.

As a result, from the second half of 2011 to the second half of 2013, J was first in the second half, while the second half of 2012 to the second half of 2013 was first in the second half, but the second half of 2014 was first in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the year in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second half in the second

As such, the Defendant first set the priority order of promotion to Grades 5 through 4 without going through lawful deliberation procedures prescribed by relevant Acts and subordinate statutes, and made the list of candidates for promotion to Class 5 and 4, according to the order determined by the Defendant. Pursuant to relevant Acts and subordinate statutes, the Defendant set the rank and reputation of the public officials subject to evaluation to be assessed in the executive director general, the confirmation officer general, the vice superintendent of education, and the neighboring deliberation committee according to the relevant Acts and subordinate statutes, according to the order of promotion as determined by the Defendant.

As a result, the defendant, who is a public official, abused his official authority and made him perform an act that is not obligated to do so.

(D) the first half of 2015 near-term operations

On July 1, 2015, the Defendant received a report on the promotion of the first half of the year 2015 from those in charge of personnel such as K of the general secretary general at the office of the above superintendent of education and the report on the promotion of the first half of the year 2016 as of January 1, 2016 that the number of promotion of class 5 local educational administrative officers is nine.

On the other hand, when preparing the first list of candidates for promotion on July 31, 2015, personnel management officers reported L to the head of the administrative bureau and the deputy superintendent of the board of education who is the evaluators 9 and 2 with respect to the promotion and the order of reputation of the 5th grade local educational administrative affairs officer, respectively. However, since L's work performance is low and work performance is insufficient to cause many civil petitions from the vice superintendent of the board of education, the defendant was ordered to lower L's service performance in the first half of the year 2015, and the above direction of the vice superintendent of the board of education was also reported to the defendant. At that time, personnel management officers of the 5th grade local educational affairs officer were the promotion candidates of the 5th grade L's rank in the second half of the year 13 grade and M were the promotion candidates of the 4th grade in the second half of the year 200's rank in the second half of the year 200's rank in the promotion of the 4th grade.

The Defendant reported the position of the vice-superintendent of education from the personnel officers, such as K of the chief of the general affairs division, but neglected the opinion of the vice-superintendent of education, and made L a list of candidates for promotion as of July 31, 2015, by classifying L as those eligible for promotion of higher-ranking rank corresponding to the number of promoted persons, and ordered them to prepare a list of candidates for promotion (draft) for promotion as of July 31, 2015 to meet the above-mentioned order, and to prepare a list of candidates for promotion as of the first half of the year in 2015 and to have the members

Accordingly, personnel management officers, such as K of the General Affairs Division, classify class 5 L as persons eligible for promotion of class 5 L as those eligible for promotion of class 4 as ordered by the defendant, set up "data on the list of candidates for promotion of class 5 or lower in general service at the end of July, 2015" in accordance with the order of candidates for promotion, and make a report again to the head of the administrative bureau, the vice-superintendent, and the superintendent of the office of education at the end of July 2015, and received the examination and decision of the members by preparing a list of the list of the evaluation units based on this.

As a result, in the case of M, L, and in the case of the first half of the year 2012, the order of priority in the second half of the year 2012 was 47 and 21 among the total 64 persons subject to the rating, respectively, and the second half of the year 2013 was 26, 63 among the total 73 persons subject to the rating, and the second half of the year 2013, the order of priority in the second half of the year 2013 was 14, 57, and the second half of the year 2014 among the total 79 persons subject to the rating, the order of priority in the second half of the year 2014 was 47 and 21 among the total 77 persons subject to the rating, but the order of priority in the second half of the year 2015 was 84, 75 and 200, among the total persons subject to the rating, and the second half of the year L was promoted.

As such, the Defendant first set the priority order of candidates for promotion to Grades V through IV without undergoing due diligence procedures prescribed by the relevant statutes, and then made the list of candidates for promotion to the order determined by the Defendant. Pursuant to the relevant statutes, the Defendant set the rank and reputation of the public officials subject to evaluation to be rated by the executive director, the director general, the confirmation person, the vice superintendent of the office of education, and the nearby deliberation committee in accordance with the relevant statutes, in line with the order of candidates for promotion as determined by the Defendant.

As a result, the Defendant, who is a public official, abused his official authority, made him to be in charge of personnel affairs such as K of the general affairs division, and made him do not have any obligation

(E) the first half of the year 2015

On January 2016, the Defendant reported the promotion report for the first half of the year 2015 to the personnel in charge of general affairs, such as K, in the office of the above superintendent of the Office of Education, and reported the list of candidates for promotion (draft) on January 31, 2016, the Defendant: (a) determined the ranking of candidates for promotion of N who are the chief of the Office of Education in the second half of the year 2015 to raise the ranking of candidates for promotion of N who are the chief of the Office of Education; and (b) ordered the members of the Bupyeong Committee to prepare a proposal for deliberation and decision.

Accordingly, the personnel management officers, such as K of the General Affairs Division, prepare the list of candidates for promotion of the above N at a higher level than the first one, and make a report to the head of the administrative bureau, the vice superintendent, and the superintendent of the office of education in the second half of January 2015 in accordance with the order of candidates for promotion, setting the ranking of candidates for promotion of the above N at a higher level than the end of January 2016, and then make a report to the director of the administrative bureau, the vice superintendent, and the superintendent of the office of education in the second half of the year of 2015. Based on this,

As a result, on January 31, 2016, the above N was subject to registration in the list of promotion candidates for Grade 4 after the lapse of four years from the date of appointment of Grade 5 to the minimum number of years required for promotion, and on January 31, 2016, the order of priority in the list of promotion candidates for Grade 19 and the second half of the year 2015 was adjusted to Grade 65 from among the total number of 81 persons subject to evaluation. As such, the Defendant, without going through legitimate deliberation procedures stipulated in relevant statutes, assigned personnel such as K of the General Director General to prepare the list of promotion candidates for promotion according to the order of priority determined by the Defendant, and arranged the list of promotion candidates for Grade 5 to Grade 4 without going through legitimate deliberation procedures stipulated in the relevant statutes.

(2) Violation of the Local Public Officials Act

No person shall intentionally commit any act interfering with, or exerting any unjustifiable influence on, any examination or appointment.

Nevertheless, the Defendant committed an act like the items of paragraphs (1) (b), (c), and (d) above, thereby adversely affecting the promotion of local public officials of the BDo Office of Education.

3. The judgment of the court below

(a) Abuse of authority and obstructing another

In full view of the following circumstances acknowledged by the adopted evidence, the lower court found the Defendant not guilty of all the charges on this part of the facts charged on the ground that it is difficult to view that there is a proximate causal relationship between the Defendant’s act and the above public official’s promotion order and promotion order of candidates for promotion, and the Defendant’s participation in I and L in the promotion order of promotion and promotion order beyond the scope of the authority of the appointing authority under the relevant Acts and subordinate statutes.

(1) Once the proposal becomes final and conclusive by reflecting the opinions of the defendant, the act of preparing a list of candidates for promotion by unit of a work performance rating and a list of records of records of records of the officer subject to evaluation belonging to the main office shall be deemed to be an act assisting the rating duties of the director general of the administrative bureau and the deputy superintendent of the office of education who is a confirmation. Even if the list of candidates for promotion is finalized after the list of candidates for promotion is finalized, the personal work performance rating and records of records of records of records of records of the officer subject to evaluation of the main office is not a list of candidates for promotion as prescribed by relevant Acts and subordinate statutes, and it shall not be deemed a violation of relevant Acts and subordinate statutes. The authority to prepare the records of records of records of records of records of performance and records of records of records of each head office shall be exclusively attached to the director general of the administrative bureau and vice-superintendent of the office of education, and there is no evidence to deem that the person in charge of personnel has the unique authority and role to apply the standards for the performance of duties to the director general of the administrative bureau and vice-general of education.

(2) The preparation of a supplementary deliberation and reporting to the committee may be deemed as the duty of personnel in charge of the above-mentioned personnel affairs, who are the executive secretary of the committee, and the personnel management officers also prepared a supplementary deliberation in accordance with the list of candidates for promotion established by recognizing the necessity thereof, and the process of deliberation and decision on the supplementary deliberation against the will of the vice-superintendent of education or the director general of the administrative bureau did not proceed. In addition, it is difficult to view that there is a proximate causal relationship between the fact that the deliberation and decision on the supplementary deliberation were made in accordance with the defendant's act and the list of candidates for promotion, as the supplementary deliberation and decision were possible at the committee for deliberation on the supplementary deliberation, contrary to the intention of the vice-superintendent of education or the director general.

(3) The Defendant’s personnel management officer prepared a draft of the list of candidates for promotion, which was examined by the head of the administrative bureau and the vice-superintendent of education, and approved as it without submitting any other opinions, may be deemed to have been prepared under the involvement of the Defendant, who is the appointing authority. Although the personnel management officer prepared a supplementary document in accordance with the draft of the list of candidates for promotion is the same, it is difficult to deem that the Defendant did not have any duty to do so only when the Defendant changed the draft of the list of candidates for promotion to the first half of 2014. (4) On the first half of 2014, the personnel management officer prepared the draft of the list of candidates for promotion to the second half of 200, and presented a dissenting opinion by the vice-superintendent of education. The Defendant reported the difference between the personnel management officer and the vice-superintendent of education and the vice-superintendent of education and presented his opinion to the vice-superintendent of education. The personnel management officer again presented his opinion to the vice-superintendent of education.

(5) The director-general of the administrative bureau, who is the appraiser of J belonging to the main office, shall conduct an independent evaluation in consultation with the deputy superintendent of the office of education, who is the confirmation, and the authority to determine the advantages and disadvantages exists in the committee of deliberation, and there is no independent authority to decide the advantages and disadvantages to the vice superintendent of the office of education. Since the vice superintendent of the office of education cannot be deemed to have infringed upon the vice superintendent's authority to evaluate the deputy superintendent because he did not express other opinions in the committee of deliberation, it is difficult to view that the

(6) In relation to the first half of the year 2015, the personnel management officer prepared the draft list of candidates for promotion with L 9 level, and approved L 9 level, but the vice Superintendent of the Office of Education presented his opinion that L is inappropriate for promotion. The personnel management officer reported the above draft to the Defendant and approved it as it is.

(b) Violation of the Local Public Officials Act;

In addition to the aforementioned circumstances, the lower court found the Defendant not guilty of this part of the facts charged on the ground that it is difficult to readily conclude that the Defendant had exercised an undue influence on the average of the following circumstances acknowledged by the evidence adopted by the adopted evidence.

(1) In light of the actual course and practices of the Bdo Office of Education, it is difficult to deem that the Defendant voluntarily designated the person to be promoted.

(2) The Director-General of the Administrative Bureau, in order to reflect the Defendant’s intent, implemented the criticism of the officer belonging to the main office after the list of candidates for promotion was finalized, but does not by itself violate the law.

(3) Even if the proposal was prepared in accordance with the list of candidates for promotion and was examined and decided as it was by the nearest Committee, there is no evidence that the Defendant participated in the decision-making process of the nearest Committee. (4) There is no evidence that there was an ex post facto change in the records of the fixed promotion candidates or the documents already prepared, prior to the decision-making of the nearest Committee.

4. Judgment of the court below

(a) Abuse of authority and obstructing another

(1) Relevant legal principles

In relation to the crime of abusing authority and obstructing another’s exercise of rights, “an abuse of official authority” means a case in which a public official unlawfully exercises his/her general official’s authority and duties, that is, a formal and external exercise of his/her authority; however, it means a case in which the public official unlawfully performs an act other than legitimate authority. The criteria for determining whether the abuse of authority constitutes abuse of authority are determined by taking into account all the elements of specific public official’s act of performing duties, such as the purpose thereof, necessity and reasonableness of the situation in which the act was performed, and whether the exercise of official authority satisfies the requirements under the Acts and subordinate statutes, and “when a public official makes another person perform an act without an obligation” means a case in which a public official performs an act without an obligation under the Acts and subordinate statutes, and where the standards and procedures for performing his/her duties are specifically specified in the Acts and subordinate statutes, and where a person in charge of the business has been granted a person in charge of the business with an inherent authority and role to participate in the procedure, it shall be determined by “when a person without an obligation” (see, etc.

On the other hand, the legislative purpose of the Local Public Officials Act, the Decree on the Appointment of Local Public Officials, and the Rules on the Evaluation of Local Public Officials belonging to the Superintendent of the Office of Education (hereinafter referred to as "related Acts and subordinate statutes") is to divide the evaluation of local public officials into the person having appointment authority, the person having appointment authority, and the person having appointment authority, and to specify the evaluation procedure, the disclosure of the evaluation results, and the method of objection, etc., in order to ensure that the evaluation of local public officials is conducted objectively, fairly and fairly (see Supreme Court Decision 2010Do1884, supra). Therefore, it is to actively intervene in the evaluation procedure before the normal evaluation of work performance by the person having appointment authority, the person having appointment authority, and the person having appointment authority, and to determine, change, and adjust the order of evaluation and the rating point

(2) Specific determination

(A) Procedures for the promotion and deliberation of the BDo Office of Education

According to the evidence duly adopted and examined by the lower court and the trial court, the deliberation and promotion of public officials belonging to the Do Office of Education may be recognized as having been conducted according to the following procedures:

1) On the end of June and at the end of December of each year, the personnel management officers in charge of the general affairs of the B-do Office of Education (general affairs chiefs, personnel management officers, and practitioners) shall submit the list of candidates for promotion by the evaluation unit except for the main office of the B-do Office of Education, and shall prepare the list of candidates for promotion by consultation and coordination under the lead of the general affairs chiefs and the personnel management officers.

2) The chief of the general affairs division or the officer in charge of personnel management determined the list of candidates for promotion by reflecting the opinions presented in the process of reporting the draft list of candidates for promotion in sequence to the chief of the administrative bureau, vice superintendent of the office of education, and the superintendent of the office of education, and then preparing the list of candidates for promotion at the same time the personnel management officer prepared the list of candidates for promotion of public officials belonging to the main office in accordance with the list of candidates for promotion (draft). 3) The officer in charge of personnel management submitted the list of candidates for promotion (draft) and the list of candidates for promotion to the neighboring committee as the executive secretary as the executive secretary of the ordinary committee, and the members of the ordinary committee reviewed and decided the ranking and precedence in the method of checking and resolving the draft formally.

4) After determining the root points, the MP Committee submitted the work performance rating and the work performance rating to the Defendant, who is the appointing authority, and the Defendant, based on this, prepared the list of candidates for promotion by summing up the root points and career reputation points for a total of three years (six times). Ultimately, the list of candidates for promotion was prepared in accordance with the draft list of candidates for promotion.

5) The Defendant, who is the appointing authority, promoted a class IV officer in accordance with the order of priority in the list of candidates for promotion, according to the practice.

(B) Abuse of official authority

Examining the following circumstances found by the evidence duly adopted and examined by the lower court and the lower court in light of the legal doctrine as seen earlier, the Defendant actively participated in the process of the ordinary reputation before the normal reputation is achieved pursuant to the relevant statutes, and based on his/her subjective judgment.

It is deemed that a specific public official abused his authority beyond the scope of the authority of the appointing authority under the relevant statutes by ordering the personnel personnel in charge to adjust the reputation and reputation of the official, or by specifically ordering the person in charge of personnel affairs to change the reputation and reputation of his/her neighboring position to raise his/her reputation and reputation.

1) Notwithstanding relevant Acts and subordinate statutes and their purport, the Defendant ordered the personnel management officer to set E and raise the order of promotion before normal reputation in relation to the first half of the year 2013. Around 2010, the Defendant was subject to disciplinary action due to the fact that he/she was appointed and issued as a planning and transformation officer without a vacancy in the position of a public official in charge of personnel management in violation of relevant Acts and subordinate statutes in accordance with the Defendant’s instructions. The personnel management officer, upon the Defendant’s instructions, did not appear to have intentionally reduced the order of promotion to raise the order of promotion of the list of promotion candidates to the second second degree by which it is possible to promote the list of promotion candidates, and the list of promotion candidates was 2,3,4,00,000,000 won, F, G, and H’s order of promotion to the lowest level, but did not immediately lower the order of promotion to the lowest level.

2) The personnel management officers and the chief of the administrative bureau prepared and reported the list of candidates for promotion with the first rank in the upper half of 2014 and the second rank in the second half of 2014. However, the confirmation person and the vice chief of the office of education, who is the chairperson of the neighboring deliberation committee, presented the opinion that the first rank in the court was defective. The officer in charge of personnel management reported the defendant's opinion that the first rank in the court and the first rank in theJ were the first rank in the court. The defendant instructed the officer in charge of personnel management to put the first rank in the first rank in the court according to his subjective judgment even before the normal reputation was reached. The defendant was ordered to put the officer in charge of personnel management to the first rank in the court of first rank in the first half of 2014, and eventually, the court dismissed from the promotion of the subordinate committee.

3) The personnel management officers and the director general of the administrative bureau set up and reported a list of candidates for promotion and a proposal (draft) with nine ranks corresponding to the number of persons eligible for promotion of L, other than M, for the first half of the year in 2015, but the vice superintendent of the office of education presented to the personnel management officer the opinion that he/she is inappropriate for promotion while indicating L’s business ability. The personnel management officer reported to the Defendant’s opinion that he/she would be inappropriate for promotion. The Defendant directed the personnel management officer to the effect that he/she would be nine rank according to his/her subjective judgment before the normal reputation is reached. The Defendant went back from the letter of promotion agency as he/she went to the direction of the deliberation committee.

4) While the Defendant had been engaged in personnel affairs in the last half of the year in 2015 due to normal attendance, the Defendant, on the first draft of the list of candidates for promotion, directed the Defendant to raise the ranking of candidates for promotion by displaying N of the Office of Education chief and N of the Office of Education chief, who is one’s own side part of the draft of the list of candidates for promotion. The officer in charge of personnel management, upon the direction of the Defendant, was inevitably lowered by raising N of the rank of candidates for promotion in the second half of the year in 2015, to raise N of the rank of candidates for promotion in the third step.

5) Considering the stability of personnel affairs, the expectation of the public officials who will be promoted in line with the order of the list of candidates for promotion, the practical limitation that it is impossible to conduct a counter-rating of the public officials subject to a large number of evaluations at the neighboring Committee, there is a need for personnel in charge of personnel affairs to prepare a list of candidates for promotion for the purpose of business convenience as reference materials for the evaluators, verified persons, and members of the neighboring Committee. However, apart from preparing a list of candidates for promotion with the prior opinion of the evaluators, verified persons, and members of the neighboring Committee, and a list of candidates for promotion after hearing the opinions of the evaluators, confirmation persons, and members of the neighboring Committee. However, the act of the Defendant, who is the appointing authority, actively intervene in the process to recruit a specific public official to the person to be promoted, to make the person in charge of personnel affairs coordinate his/her superior rank and precedence in response thereto, or to specifically instruct the person in charge of personnel affairs to change the reputation and balance of a specific public official is against relevant statutes, and its legitimacy and reasonableness is not recognized. Rather, it is reasonable and reasonable.

6) Meanwhile, the circumstance that the Defendant was able to be promoted to E, I, and L, which had been in the order of candidates for promotion within the scope of promotion even if he did not instruct the change of order, does not interfere with recognizing that the Defendant actively participated in the evaluation of a specific public official constitutes abuse of authority. The public official was expected to be promoted according to the order of the list of candidates for promotion, and the Do Office of Education has decided the promotion according to the order of high priority in the list of candidates for promotion, taking into account the stability of personnel affairs and the promotion period of public officials before the Defendant was in office as the superintendent of education. The Defendant also was appointed as the superintendent of education after the Defendant was appointed as the superintendent of education, and the Defendant was determined in the order of high priority in the promotion according to continuous practices. Therefore, in order to promote E, I, and L to maintain the former practice, it seems that it seems that it was inevitable for personnel personnel to specifically instruct the Defendant to change and coordinate the reputation and balance of his and its competitors prior to the final decision of the promotion order.

7) Article 9(2) of the Regulations on the Evaluation of Local Public Officials belonging to the Superintendent of the Office of Education is a public official belonging to the Office of Education before a person who renders or confirms performance records prepares a list of values by unit of evaluation under paragraph (1).

Article 10(2) of the Rules on the Evaluation of Local Public Officials belonging to the Superintendent of the Office of Education provides that "The person who has the authority to prepare a list of candidates for promotion (the appointing authority) may request the deliberation committee to re-determination when it is deemed that the result of the determination of the deliberation committee by the evaluation unit is very unfair, such as where the person subject to the evaluation by the specific evaluation unit is unable to secure fairness by the evaluation unit, and the result of the deliberation by the deliberation committee cannot be requested only in cases where the result of the deliberation by the deliberation committee is unfair, and it cannot be interpreted that the appointment authority has opened the possibility of participating in the evaluation of a specific public official.1) The decision of the evaluation committee by the public official belonging to the Superintendent of the Office of Education cannot be interpreted as having opened the possibility of participating in the evaluation of the public official."

Examining the following circumstances found by the evidence duly adopted and investigated by the lower court in light of the legal doctrine as seen earlier, it is reasonable to view that the personnel management officer, like the lower court’s determination, cannot be deemed as performing only the fact-finding act that assists the evaluator and the person in charge of confirmation, and that there was an inherent authority and role that ought to be performed in accordance with the standards and procedures for performing duties prescribed in the relevant statutes in the course of deliberation

1) As seen earlier, the relevant statutes evaluate the performance and performance of duties of public officials subject to evaluation at an objective level, evaluate their work performance, integrate the results of evaluation, and prepare and submit a list of documentary records by evaluation unit to the committee for deliberation on work level. The committee for deliberation on work level is to review and determine the order of service performance and the points of service of public officials subject to evaluation in the performance rating table based on the list of written records by evaluation unit.

2) During such specific procedures, the personnel management officers shall prepare a list of candidates for promotion and a balance sheet by reflecting various factors, such as the order of the list of candidates for promotion in the immediately preceding three years, the rank and the reputation point for the three-year total period, the date of the first appointment, the date of the incumbent rank, the work and the characteristics of the workplace, and provide them as evaluation data to the members of the relevant deliberation committee.

3) The personnel management officers shall prepare a list of candidates for promotion and a thorough review and consultation with the chief of the general affairs division, the chief of the administrative affairs division, the deputy superintendent of the office of education under the direction of the officer in charge of personnel affairs, and prepare a list of candidates for promotion through repeated review and consultation, and finally, if the list of candidates for promotion becomes final and conclusive, approval shall be given in order by all personnel management officers, including the personnel management officer

4) The secretary in charge of personnel affairs is the secretary in charge of the committee, and the chief of the general affairs division is present as a member of the committee, and the person in charge of personnel affairs is prepared and determined to conduct an examination and decision on the root of the committee differently from the finalized deliberation (draft).

(D) Whether a personnel officer had a person in charge perform an act not obligated to do so

Examining the following circumstances found by the evidence duly adopted and examined by the court below and the court below in light of the legal principles as seen earlier, it is reasonable to view that the defendant actively participated in the work in line with the relevant laws and regulations to assign a specific public official to the person in charge of personnel affairs, and to have the person in charge of personnel affairs adjust the ranking and reputation of the specific public official in line with the pertinent laws and regulations, or to make the person in charge of personnel affairs change the rank and reputation of the specific public official. Accordingly, it is reasonable to deem that the person in charge of personnel affairs had the person in charge of personnel affairs perform duties so that the person in charge of personnel affairs actually engages in the work for the specific public official as the defendant'

1) Article 48 of the Local Public Officials Act provides that "All public officials shall observe Acts and subordinate statutes and perform their duties in good faith." Article 49 of the same Act provides that "public officials shall obey an official order of their superior in the course of performing their duties." However, public officials are not obligated to obey illegal orders of superior officers. In addition, according to the relevant Acts and subordinate statutes as seen earlier, the role of the appointing authority, an appraiser, a confirmation person, and the committee for deliberation and resolution is clearly distinguishable, and the reputation of a specific public official is not examined and decided by the committee for deliberation and resolution through an appraiser and a confirmation person, and it is clearly against the relevant laws and regulations that the superintendent of education, who is the appointing authority, actively intervene in and decide on the reputation of a specific public official is obviously contrary to the above-mentioned laws and regulations, and the personnel management officer also has the obligation to comply with

2) The continuing procedure of the BDo Office of Education was conducted in a way that the defendant was able to report and approve the list of candidates for promotion from the personnel in charge of personnel affairs, and is determined by the nearest and nearest order in accordance therewith. It is difficult to deem that the defendant actively participated in the evaluation procedure to have adjusted the order of evaluation of a specific public official by actively participating in the evaluation procedure. However, it is not limited to the fact that the defendant, who is the appointing authority, has been continuously reported and confirmed the contents thereof, but further actively participated in the continuing procedure, thereby actively participating in the continuing procedure, and specifically ordering the person in charge of personnel affairs to assign a specific public official, and to make the person in charge of personnel affairs adjust the schedule and the nearest order in line with it, or to make the person in charge change the reputation and the nearest point at a higher level. It is reasonable to deem that the person in charge of personnel orders the person in charge of personnel to perform illegal duties contrary to the procedure stipulated in the relevant

3) On the other hand, the BDo Office of Education, reflecting the opinion of the Superintendent of the Office of Education, has a practice of determining the nearest and nearest points to the list of candidates for promotion, and some public officials have been employed.

The reason why the necessity seems to have been respected, the personnel officers and the director of the administrative bureau are stated to the effect that "no direct coercion or instruction has been received from the defendant about his reputation, and only reflects the defendant's opinion in accordance with the practice." The vice superintendent of the office of education stated to the effect that "P does not oppose the defendant's opinion, which is the superintendent of the office of education, and there are some circumstances that agree with the resolution of the Committee.

However, the defendant, as the superintendent of education, has general authority and authority to manage and supervise public officials belonging to B/Do Office of Education and the overall administration, and the person in charge of personnel affairs and the director general of the administrative bureau and the defendant stated to the effect that "the defendant did not have been promoted and promoted differently from that of the defendant's opinion." ② In particular, the defendant's measures to promote "in advance," such as keeping the person subject to promotion at the lowest level or deliberation according to the order of priority," and the head of the administrative office of education and the head of the administrative office of education and the head of the administrative office of education and the head of the administrative office of the office of education and the head of the office of education and the head of the administrative office of the office of education and the head of the office of education and the head of the administrative office of the office of education and the head of the office of education and the head of the administrative office of the office of education and the head of the office of education and the head of the administrative office of education and the head of the administrative office of education and the head of the administrative office of the office of the office of education and the public office of education.

(E) Intention of abuse of authority

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court, it is reasonable to deem that the Defendant had the intention to abuse of authority at that time. (1) The Defendant appears to have been aware of the content of the official document of the Ministry of Education, Science and Technology, and the purport that: (a) the Defendant, by receiving a report on January 2013, etc., sought measures for the cases of unfairly promoting the subject of promotion, such as: (b) keeping in advance a competitor at the lowest level; and (c) keeping in favor of the competitor at the set order; and (d) having been investigated by the Chairperson of the Personnel Committee. In addition, the Defendant, around July 2013, appears to have been aware of the fact that he was investigated by the prosecution due to the abuse of authority by ordering the former AE AE superintendent to manipulate his reputation in order to promote commuting.

2) From May 1987 to June 2010, the Defendant was serving as a professor at AF University and Law School, and on July 1, 2010, the Defendant was elected as a superintendent of the Office of Education of Do Office of Education on July 1, 2010 and is currently serving as a superintendent of the Office of Education. 2) Considering the Defendant’s career, the Defendant appears to have been elected as a superintendent of the Office of Education at least in July 2013, when the Defendant was elected as a superintendent of the Office of Education and around three years ago, it seems that the appointing authority’s changing and coordinating the order of probation

(f) Sub-committee

Therefore, it is reasonable to view that the Defendant abused its authority beyond the scope of the authority of the appointing authority under the relevant statutes and caused personnel in charge to perform an act for which the person in charge of personnel affairs did not have a duty, by actively participating in the deliberation process before normal reputation is performed in violation of the relevant statutes and by ordering the person in charge of personnel affairs to designate a specific public official as a person in charge of promotion and to adjust his/her reputation and reputation or to change his/her reputation and reputation.

Nevertheless, the judgment of the court below which acquitted this part of the facts charged is erroneous in misunderstanding of facts or misunderstanding of legal principles, and the prosecutor's assertion pointing this out is

B. The above facts are as follows in the crime of violation of the Local Public Officials Act: (a) unlike the judgment of the court below, the defendant may be deemed to have actively participated in the process of the ordinary reputation and specifically ordered the person in charge of personnel affairs to adjust the reputation and reputation by keeping him/her in line with the aforementioned facts; (b) the defendant's act is an act that clearly undermines the purport of the relevant Acts and subordinate statutes in order to ensure fairness and transparency in the ordinary reputation; (c) the personnel management officer prepared a list of candidates for promotion and a nearby peace by setting a specific public official as a promoter according to the defendant's direction; and (d) the fact was reported to the vice-superintendent of the ordinary committee's office of education and the chief of the office of general affairs and the chief of the office of general affairs, who is the member of the ordinary committee of education, who is the chairman of the ordinary committee of education and the branch of the ordinary committee, and thus, it is reasonable to see that the defendant did not have any undue influence on the part of the facts charged prior to the evaluation of facts.

5. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and the following is ruled again.

【Grounds for another judgment】

The provisions of paragraph (2) of the Criminal History.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of Qua and P from the party trial witness;

1. Each legal statement of P, Q, D,O, K, R, T, U,V, W, andY of the lower court; each prosecutor's protocol of the prosecution against P, Q, D, K, R, T, U,O, and S

1. Each investigation report (to attach official documents related to cadastral cases of the Board of Audit and Inspection and subsequent measures, to press reports in the abuse of authority of the superintendent of the Office of Education before AA City Office of Education), and to extract press reports data

1. Annual status of appointment of incumbent class-5 2005-2013 of educational administration, list of current class-4 promotion candidates after taking office at A superintendent of education, list of candidates for promotion of class-5 or lower in general service, records of performance ratings of public officials of class-5 or lower in general service (E, Z, H, F, G, and N), records of performance ratings of public officials of class-5 or lower in general service, each notice of results of performance ratings of local public officials of class-5 or lower in general service, each service record list, each proposal of performance rating, each determination of performance rating points, each individual work performance rating, each personal personal records, each personal personal information record, each individual personal information record, each individual personal information record, each subject

1. Requests for cooperation in investigation and replies to questions;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 123 of each Criminal Act, Articles 82 and 42 of the former Local Public Officials Act (Amended by Act No. 12235, Jan. 14, 2014); Articles 83 and 42 of the former Local Public Officials Act (Amended by Act No. 12800, Oct. 15, 2014); Articles 83 and 42 of the former Local Public Officials Act (Amended by Act No. 12800, Oct. 15, 2014); Articles 83 and 42 of the Local Public Officials Act (Amended by Act No. 12800, Oct. 15, 2014); Articles 83 and 42 of the former Local Public Officials Act (Amended by Act No. 12235, Jan. 14, 2014; Amended by Act No. 12210, Oct. 2

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides that a defendant, who is the superintendent of the Office of Education of B/Do Office of Education, is obligated to direct and supervise a fair and transparent deliberation process conducted by an independent deliberation committee independent of the superior officers of the public officials subject to evaluation in accordance with the relevant statutes. Nevertheless, the defendant, in violation of relevant statutes, instructs the person in charge of personnel affairs to change the order of evaluation to promote a specific public official who assisting the defendant at the reasonable rate, or instructs the specific public official to be appointed before holding a deliberation committee, and to make the order of evaluation and evaluation in line with the above, has abused the authority of the appointing authority and unfair influence on promotion. Accordingly, this is not only damaged the objectivity, fairness, and transparency of personnel affairs of the B/Do Office of Education, but also caused direct damage to the defendant, which would have been deprived of or diminished in the order of promotion from promotion. Nevertheless, the defendant should be viewed as exercising the authority of the appointing authority, and all of the circumstances that the defendant should be considered to have denied the number of times of the crime in this case, and there are no other extenuating circumstances.

Judges

The presiding judge, the fixed judge system;

Judges Hwang Young-ju

Judges Kim Gin-ju

Note tin

1) See the grounds for amendment of the Regulations on the Evaluation of Local Public Officials belonging to the Board of Education and the Superintendent of Education (Ordinance of the Ministry of Education No. 667 of August 8, 1995)

2) On June 13, 2018, the Defendant was elected to the Superintendent of the Office of Education of the Do Office of Education at the 7th nationwide provincial elections implemented by the Defendant.

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전주지방법원 2018.11.16.선고 2018노45

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