The limitation of the duty of accusation of public officials under Article 234(2) of the Criminal Procedure Act and whether the crime of abandonment of duty is established

Article 234 (2) of the Criminal Procedure Act provides that "if a public official believes that a crime has occurred in the course of performing his/her duties, he/she shall file a criminal charge, even though the public official is aware of a crime in the course of performing his/her duties, if it is deemed that there is no punishment or if it is deemed that the public official does not file a criminal charge due to other circumstances, he/she may not file a criminal charge at his/her own discretion. Therefore, if the defendant, who is an employee of a waterworks business place, knows the fact of illegal waterworks works in accordance with the training policy for illegal waterworks facilities of the authority and reports on the

Article 122 of the Criminal Act, Article 234 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul District Court (69Da3107, 11184)

The prosecutor's appeal is dismissed.

The gist of the prosecutor's appeal is that the court below found the defendant not guilty on the grounds that the defendant's failure to file a complaint on the part of the facts charged does not constitute a crime of abandonment of duty, because it is not an inherent duty of the defendant. However, it erred by wrong interpretation of the law,

In the crime of abandonment of duties, as long as a public official refers to the original duties under the Public Officials Act, the duty of accusation of a public official under Article 234(2) of the Criminal Procedure Act shall not be deemed as the general duties, the original duties, and the derivative duties.

If a public official’s neglect of such duties is permitted, it would result in allowing the dismissal of the state’s power to realize justice through the enforcement of law, and it cannot be contradictory to the fact that a public official’s failure to report a criminal act that he/she recognized in the course of performing his/her duties to his/her superior is a crime of abandonment of his/her duties, and that an accusation

In this case, the defendant does not report to the commercial person in order to recognize and conceal the facts constituting the crime of this case without reporting to the commercial person, and it is evident that he has abandoned his duties, and the court below's rejection of this case is not an unlawful act.

However, even though the defendant was aware of the fact that 8 households, such as the defendant 1 and 2, etc. of the court below from March 1967 to the end of December of the same year, he did not file a complaint with the resignation authority against the illegal waterworks business operator and the consumers who installed water supply facilities despite the fact that 8 households such as the defendant 1 and 2, etc. of the court below had done the illegal waterworks construction work, it is evident that "if a public official believes that a crime is committed in the course of performing his duties, he shall file a complaint." However, even if a public official is aware of a crime in the course of performing his duties, if it is deemed that there is no punishment or if it is reasonable that he did not file a complaint due to other reasons, he may choose not to file a complaint according to his own discretion. According to the prosecutor's statement outline (175) of the suspect examination protocol against the defendant in this case, the defendant's authority should consider the illegal waterworks construction work by filing a report on it in accordance with the training policy for the illegal waterworks facilities of the prosecutor, and it is not necessary to file an appeal.

Therefore, the judgment of the court below is just because it is different from the reasons for the judgment of the party members, and the conclusion is the same, and since the prosecutor's appeal against this is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

It is so decided as per Disposition.

Judges Jeon Soo-chul (Presiding Judge)