The meaning of "when a public official abandons his/her duties" among the elements of the crime of neglecting his/her duties, and whether the crime of neglecting his/her duties is established in cases where the contents of performance of duties are unlawful (negative)

Article 122 of the Criminal Act

Supreme Court Decision 2006Do1390 Decided July 12, 2007 (Gong2007Ha, 1309), Supreme Court Decision 2006Do1391 Decided July 12, 2007, Supreme Court Decision 2007Do7725 Decided March 26, 2009, Supreme Court Decision 2011Do1739 Decided July 28, 201 (Gong201Ha, 181)

Defendant 1 and one other

Special Prosecutor

Law Firm Squa et al.

Seoul High Court Decision 2012No3434 decided November 30, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s obstruction of performance of official duties by fraudulent means

The lower court determined that Defendant 1’s failure to acknowledge that Defendant 1 was obstructed on the website of the National Election Commission (hereinafter “Central Commission”) at the time of the instant election, and that Defendant 1 received a report on the disability of the ELP network connected to the said website from the Nonindicted Party, etc. affiliated to the customer quality team (hereinafter “ELP”) from the Nonindicted Party, etc. affiliated with the said website, etc., and that Defendant 1 requested the Central Election Commission to extend the 15MbPs to the ELPs prior to DNA attack; and that it was difficult to determine that Defendant 1 was not guilty of the interference with the said website even if the traffic flow flowing to the said line network was 30 to 40Ms at the time of attack; and that Defendant 1 submitted a false explanation of the facts that Defendant 1’s failure was connected to the said website; and that Defendant 1 presented a false explanation of the facts that were in violation of the former Special Prosecutor’s understanding of the content or cause of the interference; and that Defendant 5’s failure to present the Central Party 1’s explanation.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were errors in finding facts contrary to the logical and empirical rules or omitting judgment on necessary matters, which affected the conclusion of the judgment.

2. As to Defendant 2’s abandonment of duty

In the crime of abandonment of duties prescribed in Article 122 of the Criminal Act, the term “where a public official abandons his/her duties” refers to not all the cases where the public official neglects his/her duties in accordance with Acts and subordinate statutes, rules, etc., but it is likely to impair the function of the State and cause damage to the people, such as the unauthorized deprivation of duties and the waiver of the consciousness of duties. Accordingly, once performing his/her duties with his/her intent to perform his/her duties, the establishment of the crime of abandonment of duties is not recognized on the sole basis of the fact that the contents of the performance of duties are deemed illegal, but even if a public official fails to faithfully perform his/her duties due to his/her neglect, mistake, etc. or fails to perform his/her duties formally or formally, the crime of abandonment of duties is not established (see Supreme Court Decisions 2006Do1390, Jul. 12, 2007; 2011Do1739, Jul. 28, 2011).

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted Defendant 2 on the ground that the evidence presented by the special prosecutor cannot be deemed as having neglected the preparation that Defendant 2 had to prepare prior to an attack, and even if Defendant 2 did not perform all the response measures set forth in the guidelines for response to a DNA attack enacted by the Central Line on the date of a DNA attack or performed its duties somewhat inappropriate tasks, Defendant 2’s measures cannot be deemed as an aggressive neglect or renunciation of duties.

Examining the records in light of the above legal principles, the above fact-finding and determination by the court below are just, and contrary to the allegations in the grounds of appeal, the court below did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the crime of abandonment

3. Conclusion

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

Justices Ko Young-han (Presiding Justice)