[1] Whether obstruction of the performance of official duties by fraudulent means is established in a case where a suspect, etc. actively interferes with investigation activities by submitting false evidence that he/she committed to an investigation agency (affirmative)

[2] "A document" which constitutes the object of the crime of preparation of a false official document

[3] Meaning of “person” under Article 11(1) of the National Intelligence Service Act and whether an employee of the National Intelligence Service is included therein (affirmative)

[4] Requirements for the crime of abuse of authority under the National Intelligence Service Act to constitute “the abuse of authority” and the criteria for distinguishing it from the tort using the status

[1] In investigating a criminal case, the investigative agency has the authority and duty to determine the suspect regardless of the suspect's statement and to collect and investigate all objective evidence to prove the suspected fact. Meanwhile, the suspect has the right to refuse to make statements and the right to make statements favorable to himself/herself, and does not have the duty to make a statement only to the investigative agency. Therefore, even if the suspect, etc. has made false statements to the investigative agency or concealed evidence necessary to recognize the suspected fact and submitted false evidence, if the investigative agency completed the collection and investigation of evidence only with such false statements and evidence without sufficient investigation by the investigative agency, it cannot be deemed as a crime of obstruction of the performance of official duties by deceptive means, as it is due to insufficient investigation by the investigative agency, and it cannot be deemed as impeding the investigation by fraudulent means by the suspect, etc. However, if the suspect, etc. actively submitted false evidence to the investigative agency and the investigative agency failed to find that evidence is false even if it is sufficient as a result of its manipulation of evidence, this constitutes a crime of obstruction of the performance of official duties by deceptive means.

[2] The document which is the object of the crime of preparation of a false public document shall be exempted not only from the case where the person who prepared the document is specified in the document but also from the case where the person who prepared the document does not specify the document in the document itself, such as the form and content of the document.

[3] Article 11(1) of the National Intelligence Service Act provides, “The Director, Deputy Director, or other employees shall not arrest or detain persons without going through legal procedures by abusing their official authority, allow other institutions, organizations, or persons to perform an act without any obligation, or interfere with the exercise of their rights.”

In this context, the term “person” should be construed to the same meaning as “person” in the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act. As such, the National Intelligence Service’s staff member also includes “person” in the crime of violating the National Intelligence Service Act. In addition, the term “ex officio abuse” refers to cases where a public official unlawfully exercises matters belonging to the general authority and authority, namely, in the form of a formal and external manner, conducts an act other than legitimate authority. Whether a public official’s specific act constitutes “a abuse” ought to be determined by taking into account all the elements, such as the purpose of the public official’s specific act, necessity and reasonableness when considering the situation in which the act was

Meanwhile, “when one allows a person to perform an act without any obligation” refers to the time when one allows a person to perform an act without any obligation under the law. As such, if the standards and procedures for performing his/her duties are specifically specified in the statutes, and if a person in charge of the duties is granted the inherent authority and role to apply the standards and procedures for performing his/her duties and to participate in the procedures, such standards and procedures, such act constitutes “when one allows a person in charge of the duties to assist in the performance of his/her duties.” However, even if a public official allows a person in charge of the duties to perform a fact that assists in the performance of his/her duties with respect to matters belonging to his/her own authority, such act is only attributable to a public official

[4] The crime of abuse of authority is established when a public official entrusts a public official to exercise his/her official authority on matters falling under his/her general official authority and practically and specifically commits an unlawful or unlawful act. The term “use of official authority” in this context refers to a public official’s unlawful exercise of authority on matters falling under his/her general official authority, i.e., a formal and external exercise of authority, but a public official does an act other than his/her legitimate authority, and is distinguishable from a tort using his/her status in cases where a public official performs an act not falling under his/her general official authority and authority. In addition, in order for a public official to be deemed a matter falling under his/her general official authority, legal basis is necessary. However, the legal basis does not necessarily mean a clear basis. Even in the absence of a clear name, a comprehensive and substantial observation of the law and system is construed as falling under the official’s authority and includes general authority as stated in the crime of abuse of authority in cases where it is deemed sufficient to cause the other

[1] Article 137 of the Criminal Code / [2] Article 227 of the Criminal Code / [3] Articles 11(1) and 19(1) of the National Intelligence Service Act, Article 123 of the Criminal Code / [4] Articles 11(1) and 19(1) of the National Intelligence Service Act

[1] Supreme Court Decision 2003Do1609 Decided July 25, 2003 (Gong2003Ha, 1896), Supreme Court Decision 2007Do6101 Decided October 11, 2007, Supreme Court Decision 2010Do15986 Decided February 10, 201 (Gong201Sang, 610) / [2] Supreme Court Decision 95Do2088 Decided November 10, 1995 (Gong195Ha, 3971) / [3] Supreme Court Decision 2015Do3468 Decided December 23, 2015, Supreme Court Decision 2017Do12534 Decided October 31, 2017 / [3] Supreme Court Decision 2015Do12534 Decided December 31, 2017

Defendant 1 and seven others

Defendants and Prosecutor

Law Firm Macro et al.

Seoul High Court Decision 2018No1537 decided November 16, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ grounds of appeal

A. Defendants’ obstruction of the performance of official duties by fraudulent means

1) In investigating a criminal case, the investigative agency has the authority and duty to determine the suspect regardless of the suspect's statement and to collect and investigate objective evidence to acknowledge the suspected criminal fact. Meanwhile, the suspect has the right to refuse to make statements and the right to make statements favorable to himself/herself, and does not have the duty to make a statement only to the investigative agency. Therefore, even if the suspect, etc. has made false statements to the investigative agency or concealed evidence necessary for the acknowledgement of the suspected criminal fact and submitted false evidence, if the investigative agency completed the collection and investigation of evidence only with such false statements and evidence without sufficient investigation, it cannot be deemed as a crime of obstruction of the performance of official duties by deceptive means, as it is caused by insufficient investigation by the investigative agency, and it cannot be deemed as impeding the investigation by fraudulent means by the suspect, etc. However, if the suspect, etc. actively submitted false evidence and the investigative agency failed to discover that evidence was submitted in good faith as a result of the manipulation of evidence, this constitutes a crime of obstruction of the performance of official duties by deceptive means, and it is also established as a fraudulent act by the investigative agency.

2) The lower court convicted the Defendants of obstruction of the performance of official duties by fraudulent means on the following grounds.

① Defendant 7’s instruction constituted T/F and working-level T/F to respond to the prosecution’s investigation into the National Intelligence Service. Since the rest of the Defendants, who are the members, were taken measures to ensure that the organized political intervention of the National Intelligence Service was not revealed in the process of the prosecution’s search and seizure of the National Intelligence Service (hereinafter “instant search and seizure”), there is a conspiracy between the Defendants.

(2) In the course of executing the instant search and seizure warrant on April 30, 2013, the prosecution took the form in which materials are submitted by the National Intelligence Service pursuant to the purport of partially dismissing the search and seizure warrant, but it may be deemed that the specific performance of duties, which is the execution of the search and seizure warrant.

③ In preparation for the instant search and seizure, the Defendants newly created the psychological leaflets office in preparation for the search and seizure, and forged and kept false documents to reveal the legitimacy of the psychological leaflets, and refused to submit the materials kept by the NIS on the ground that there is no absence or constitutes State secrets. Accordingly, the prosecutorial officials who conducted the instant search and seizure may sufficiently evaluate that the Defendants’ act fell under fraudulent means.

④ Prosecution’s public officials stated the subject of seizure in the instant search and seizure warrant through fraudulent means by the Defendants, and did not search and seize the place and articles that could have been subject to search and seizure. As such, public officials’ specific and realistic performance of duties by public officials was hindered.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of joint principal offenders, obstruction of performance of official duties, and modification of indictments, or by omitting judgment, etc.

B. The Defendants’ perjury.

For the reasons indicated in its holding, the lower court convicted the Defendants of the charge of perjury. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not exhaust all necessary deliberations, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, misapprehending the legal doctrine on joint principal offenders, or by misapprehending the legal doctrine on joint principal offenders

C. Defendant 1, Defendant 5, and Defendant 6’s witness volume, the fact-finding inquiry-related preparation of false official document, and the fact-finding of false official document

For the reasons indicated in its reasoning, the lower court convicted Defendants 1, 5, and 6 of the facts charged, on the grounds indicated in its reasoning, on the following grounds: (a) the NIS staff member sent a Russian trip to prevent Nonindicted Party 1 from attending as a witness in the criminal trial against Nonindicted Party 2, etc.; and (b) took part in the preparation and submission of a false statement to the court; (c) the functional control over Defendant 1, Defendant 5, and Defendant 6 was recognized; (d) the witness escape of Defendant 1, Defendant 5, and Defendant 6; and (e) the preparation of a false official document and the exercise of a false official document related to the fact-finding. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of crimes of

D. Defendants 8-2: (a) on December 11, 2012; (b) on December 12, 2012; (c) on January 31, 2013; and (d) on March 18, 2013, the preparation of false official documents and the publication of false official documents related to each news report material as of March 18, 2013;

1) The document which is the object of the crime of preparation of a false official document is to the extent that it can be inferred from the document itself, such as the form and content of the document, even though the document does not specify the person who prepared the document (see Supreme Court Decision 95Do2088 delivered on November 10, 195).

2) For the following reasons, the lower court convicted Defendant 8 of all of Defendant 8-2 on the preparation of a false official document and the publication of a false official document related to each news report as of December 11, 2012, December 12, 2012, January 31, 2013, and March 18, 2013.

① The report materials prepared by Defendant 8 include not only the opinions of the National Intelligence Service, but also factual verification as to whether employees belonging to the NIS Review Team posted comments, etc. on political issues on a systematic basis. The act of proving factual relations is performed. In light of the form and content of the document, and the system, it clearly reveals that the title holder who is the representative of the National Intelligence Service is clearly revealed. Thus, it is an object of the crime of preparing false official

② Defendant 8 recognized the fact that the National Intelligence Service’s employees carried out cyber activities constituting political intervention in a systematic manner according to Nonindicted 2’s instructions, following the National Intelligence Service’s internal confirmation work before preparing each of the above reports materials. As such, Defendant 8 recognized the fact that the content of each of the above reports was false.

3) Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, 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, or by misapprehending the legal doctrine on the objects of the crime of preparing false official

2. As to the Prosecutor’s Grounds of Appeal

A. Violation of the National Intelligence Service Act in relation to the Defendants’ non-affiliated measures

1) Article 11(1) of the National Intelligence Service Act provides that “The Director, Deputy Director, or other employees shall not arrest or detain persons without going through legal procedures by abusing their official authority, or allow other institutions, organizations, or persons to perform an act without any obligation, or interfere with the exercise of their rights.”

2) The term “person” in this context should be interpreted the same as “person” in the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act. As such, the National Intelligence Service’s staff members also include “person” in the crime of violating the National Intelligence Service Act. In addition, the term “ex officio abuse” refers to cases where a public official unlawfully exercises matters belonging to the general authority and authority, namely, where a public official appears to perform his/her duties in a formal and external manner, or where he/she performs an act other than legitimate authority. Determination of whether a public official constitutes abuse ought to be made by taking into account all the elements, such as the purpose of a specific public official’s performance of duties, the necessity and reasonableness of the relevant

3) Meanwhile, “when one allows another to perform an act without any obligation” refers to the time when one allows another to perform an act without any obligation under the law. As such, if the standards and procedures for performing duties are specifically specified in the statutes and if a person in charge of the duties is given the unique authority and role to apply the standards and procedures for performing duties to the person in charge of the duties and to assist the performance of duties in violation of such standards and procedures, such act constitutes “when one allows a person in charge of the duties to perform an act without any obligation.” However, even if a public official allows a person in charge of the duties to perform a fact that assists in performing his/her duties with respect to matters belonging to his/her duties, such act is only connected to the performance of duties by a public official, and thus, in principle, “when one performs an act without any obligation” (see Supreme Court Decision 2015Do3468, Dec. 2

4) On the grounds indicated in its reasoning, the lower court found Defendant 5, who was the head of the ○○○○○○○○ Office, not guilty of the Defendants’ violation of the National Intelligence Service Act, on the ground that even if the Defendants 5 and 6 members of T/F, Defendant 7, and Nonindicted 3, conspired with Nonindicted 4, and Nonindicted 5, et al. to have the employees of the ○○○○○○○ Office, such as Nonindicted 2’s head of the NIS and the chief of the psychological team, in consultation with Nonindicted 4, and Nonindicted 5, in order, forced the employees of the ○○○○○○○○ Office to escape from the crime of violating the National Intelligence Service Act.

5) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on the establishment of a crime of violating the National Intelligence Service Act due to abuse of authority, without exhaust all necessary deliberations.

B. Defendant 4, Defendant 2, and Defendant 8’s witness volume, the fact-finding inquiry-related false official document preparation, and the fact-finding of false official document

On the grounds indicated in its reasoning, the lower court acquitted Defendants 4, 2, and 8 of the fact-finding that it was insufficient to recognize that the NIS employees engaged in preparing and submitting “a reply to an inquiry into fact-finding” with a view to preventing Nonindicted 1 from attending as a witness in the criminal trial against Nonindicted 2, etc. on the part of the NIS staff member, on the ground that it was insufficient to recognize that they engaged in preparing and submitting “a reply to an inquiry into fact-finding” with a false content. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules, or by misapprehending the legal doctrine on joint principal offense.

C. Violation of the National Intelligence Service Act regarding Defendant 2’s provision of funds to remuneration organizations

1) The crime of abuse of authority is established when a public official entrusts a public official to exercise his/her official authority on matters falling under his/her general official authority and practically and specifically commits an unlawful or unjust act. The term “use of official authority” in this context refers to a public official’s unlawful exercise of authority on matters falling under his/her general official authority, namely, where a public official appears in a formal and external manner to perform his/her duties, or where a public official performs an act other than his/her legitimate authority in substance, and is distinguishable from a tort using his/her status where a public official performs an act that does not fall under his/her general official authority (see Supreme Court Decision 2011Do5329, Nov. 28, 2013). In order for a public official to be deemed a matter falling under his/her general official’s authority, legal basis is necessary. However, the legal basis does not necessarily mean, even if there is no express statement, it includes a general and institutional observation where it is interpreted that it falls under the official’s official authority and where it is deemed sufficient to cause the other party to perform an act.

2) The lower court found Defendant 2 not guilty of violating the National Intelligence Service Act regarding the support of remuneration organizations by deeming that Defendant 2’s act of having △△△△ Group and △△ Group provide funds to a specific repair organization on the grounds that it does not constitute a tort using the status of the Director General of the National Intelligence Service △△△△△△△△△△△△△△△△△, on the grounds that Defendant 2’s act of having △△ Group and △△ Group provide funds to a specific repair organization is not an abuse of authority.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding “general official authority” in the crime of violating the National Intelligence Service Act due to abuse of authority.

D. Defendant 8-2’s preparation of false official documents and holding of false official documents on December 16, 2012

On the grounds indicated in its reasoning, the lower court acquitted Defendant 8 of the fact that Defendant 8’s content was false when preparing and distributing news report materials as of December 16, 2012 to reporters, and determined that Defendant 8’s content was not guilty on the preparation of false public documents and the exercise of false public documents related to news report materials as of December 16, 2012. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the falsity of news report materials.

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 Park Sang-ok (Presiding Justice)