Whether interpreting that Presidential records prohibited from being leaked by Articles 30(2)1 and 14 of the Presidential Records Management Act include copies or additional copies other than the original documents or electronic files shall be permissible under the principle of no punishment without law (negative)

The purpose of the Presidential Records Management Act (hereinafter “Presidential Records Act”) is to enhance transparency and accountability in the operation of the State affairs by prescribing matters necessary for the efficient management of Presidential records, such as the protection, preservation, and utilization, etc. of Presidential records, and for the establishment and operation of the Presidential Archives (Article 1). Article 2 of the Presidential Records Act refers to the records and commodities created and received by the President or any other institution in relation to the duties of the President (Article 1). “Records” means records and commodities under subparagraph 2 of Article 3 of the Public Records Management Act (Article 1-2(a). Article 3 Subparag. 2 of the Public Records Act provides that “record” refers to all types of archival materials, such as documents, books, ledgers, cards, audio-visual materials, electronic documents, etc. created or received by a public institution in relation to the duties thereof.

The Presidential Records Act provides, in principle, that all processes and results related to the duties of the President and the heads of assistant agencies, advisory agencies, etc. of the President shall be created and managed as records (Article 7(1)); and specific provisions regarding the procedures for transferring the created Presidential records to the central records management institution and the procedures for destroying the Presidential records (Articles 11 and 13). Furthermore, Article 14 provides that no person shall destroy, damage, conceal, destroy, leak, or leak the Presidential records without permission or take them out of the Republic of Korea (Article 14). Article 30(1) and (2) of the Presidential Records Act provides that a person who is or was in charge of the management of the Presidential records or a person who has accessed or perused the Presidential records shall not divulge any confidential information that he/she has learned in the course of performing his/her duties and any contents included in the presidential designated records during the protection period (Article 19(3) of the Act).

Article 4 of the Presidential Records Act shall apply to the management of Presidential records in preference to other Acts, but the Public Records Act shall apply to matters not prescribed in this Act. Article 21(1) of the Public Records Act provides that important records among the records classified as permanent preservation shall be preserved in duplicate by making and preserving copies or recording them in preservation media. Article 48 of the Presidential Records Act provides that records recorded in preservation media in accordance with the standards and procedures prescribed by Presidential Decree shall be presumed to be the same as the original records.

Unless there are special circumstances, such as that the Presidential Records Act was enacted for the purpose of enhancing the transparency and accountability of the state administration through the efficient management of Presidential records, and the copies themselves need not be preserved separately from the original, except for the original documents or electronic files, and there is no need to preserve all copies or additional copies as Presidential records. The Presidential Records Act separates acts such as destroying, damaging, divulging, etc. the Presidential records itself and the act of divulging the contents thereof, and Article 21 of the Public Records Act separate provisions on the reproduction, etc. of important records among the records classified as permanent preservation, it is not permissible in principle under the principle of no punishment without law to interpret that the copies or additional copies are included in the Presidential records prohibited from leakage by Articles 30(2)1 and 14 of the Presidential Records Act other than the original documents or electronic files.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 1 of the Presidential Records Management Act; Article 2 subparag. 1, 1-2(a) of the Presidential Records Management Act (Amended by Act No. 17573, Dec. 8, 2020); Articles 4, 7(1), 11, 13, 14, 19, 30(1), (2), and (3) of the Constitution of the Republic of Korea; Articles 3 subparag. 2, 21, and 48 of the Public Records Management Act;

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm Barun et al.

Seoul High Court Decision 2015No3042 decided April 29, 2016

All appeals are dismissed. Of the judgment of the court of first instance, “The fact of violation of the Act on the Management of Presidential Records except for the violation of the Act on the Management of Presidential Records due to delivery of the documents listed in [Attachment 9] No. 9] shall be corrected to “each violation of the Act on the Management of Presidential Records”.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. As to the Defendants’ violation of the Presidential Archives Management Act (hereinafter “Presidential Archives Management Act”).

1) The principle of no punishment without the law requires that crimes and punishments be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, penal provisions should be strictly interpreted, and interpreting them in a manner unfavorable to the defendant beyond the possible meaning of the language and text shall not be permitted in accordance with the prohibition of extended interpretation, which is the content of the principle of no punishment without the law (see, e.g., Supreme Court Decision 2015Do17847, Mar.

2) The purpose of the Presidential Records Act is to enhance transparency and accountability in the operation of the State by prescribing matters necessary for the efficient management of Presidential records, such as the protection, preservation, and utilization of Presidential records, and the establishment and operation of the Presidential Archives (Article 1). Article 2 of the Presidential Records Act provides that “Presidential records” means records and goods created and received by the President or any other institution in relation to the duties of the President (Article 1) and “record” means records under Article 3 subparag. 2 of the Public Records Management Act (Article 3 subparag. 2(a) of the Public Records Act (hereinafter “Public Records Act”). Article 3 subparag. 2 of the Public Records Act provides that “record” refers to all forms of archival information and data, such as documents, books, ledgers, cards, drawings, audio-visual materials, electronic documents, etc. created or received by a public institution in relation to the duties.

The Presidential Records Act provides, in principle, that all processes and results related to the duties of the President and the heads of assistant agencies, advisory agencies, etc. of the President shall be created and managed as records (Article 7(1)); and specific provisions regarding the procedures for transferring the created Presidential records to the central records management institution and the procedures for destroying the Presidential records (Articles 11 and 13). Furthermore, Article 14 provides that no person shall destroy, damage, conceal, destroy, leak, or leak the Presidential records without permission or take them out of the Republic of Korea (Article 14). Article 30(1) and (2) of the Presidential Records Act provides that a person who is or was in charge of the management of the Presidential records or a person who has accessed or perused the Presidential records shall not divulge any confidential information that he/she has learned in the course of performing his/her duties and any contents included in the presidential designated records during the protection period (Article 19(3) of the Act).

Article 4 of the Presidential Records Act shall apply to the management of Presidential records in preference to other Acts, but the Public Records Act shall apply to matters not prescribed in this Act. Article 21(1) of the Public Records Act provides that important records among the records classified as permanent preservation shall be preserved in duplicate by making and preserving copies or recording them in preservation media. Article 48 of the Presidential Records Act provides that records recorded in preservation media in accordance with the standards and procedures prescribed by Presidential Decree shall be presumed to be the same as the original records.

Unless there are special circumstances, such as that the Presidential Records Act was enacted for the purpose of enhancing the transparency and accountability of the state administration through the efficient management of Presidential records, and the copies themselves need not be preserved separately from the original, except for the original documents or electronic files, and there is no need to preserve all copies or additional copies as Presidential records. The Presidential Records Act separates acts such as destroying, damaging, or divulging the Presidential records themselves and acts of divulging the contents thereof, and Article 21 of the Public Records Act separate provisions on the reproduction, etc. of important records among the records classified as permanent preservation. In full view of the fact that Article 30(2)1 and Article 14 of the Presidential Records Act has separate provisions on the reproduction, etc. of important records among the records classified as permanent preservation, it is not permissible to interpret that the copies or additional copies are included in the Presidential records prohibited from leakage by Article 30(2)1 and Article 14 of the Presidential Records Act in addition to the original documents

3) Examining the records in accordance with the above legal principles, the court below is just in maintaining the judgment of the court of first instance that acquitted the Defendants on the violation of the Presidential Records Act among the facts charged in this case against the Defendants, on the ground that the documents in the attached list of crimes (1) and the list of crimes (3) are documents which added or copied a document file stored in the computer used by Defendant 1 separately from the original documents used for reporting procedures, and cannot be deemed the Presidential records prescribed in Articles 30(2)1 and 14 of the Presidential Records Act. In so doing, the court below did not err by misapprehending the legal principles on the Presidential records, etc., contrary to what is alleged in the grounds of appeal.

B. As to the defendants' leakage of official secrets

① The lower court affirmed the first instance judgment that acquitted Defendant 2 on the charge of leakage of official secrets (except for the part related to delivery of Non-Indicted 1 trend documents to Defendant 1) among the charges of this case against the Defendants, on the ground that Defendant 2 instructed Defendant 1 to deliver the documents listed in No. 4 (hereinafter “documents of Non-Indicted 1 trend”) in the lower court’s judgment, and that the Defendants informed Non-Indicted 2, a presidential relative, of the details of the remaining crimes list of crimes except for the documents of Non-Indicted 1 trend, constitutes the legitimate scope of duties of the office of ○○○○ secretary.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal doctrine regarding the requirements for political party acts and the scope of lawful duties,

C. As to Defendant 1’s concealment of public documents and accusation

For reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted Defendant 1 of the concealment of public documents and accusation among the facts charged in the instant case.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, contrary to what is alleged in the grounds of appeal, 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 “documents used by public offices” and the criminal intent of false accusation in the crime of concealing public documents, or by omitting

D. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) (hereinafter “Aggravated Punishment, etc.”)

For the reasons indicated in its holding, the lower court reversed the first instance judgment convicting Defendant Park Jong-cheon on the charge of violation of the Specific Crimes Aggravated Punishment Act (Bribery) and rendered a not guilty verdict on the part of receiving KRW 50 million in cash, and reversed the first instance judgment that found Defendant Park Jong-cheon guilty on the ground that the part of receiving KRW 50 million in total constituted a case where there is no proof of criminal facts with regard to one of the six parts of the aggregate aggregate, and acquitted Defendant Park Jong-cheon, and reversed the first instance judgment that found Defendant guilty on the ground that the statute of limitations has expired, and sentenced Defendant to acquittal

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on determining the credibility of a bribe donor’s statement, or by failing to exhaust all necessary deliberations, etc.,

2. As to Defendant 1’s ground of appeal

The lower court affirmed the first instance judgment convicting Defendant 1 of the leakage of confidential information related to Nonindicted Party 1’s official duties among the instant charges against Defendant 1, on the ground that: (a) the fact that Defendant 1 delivered Nonindicted Party 1’s trend to Nonindicted Party 3 through Nonindicted Party 3; and (b) the fact that he collected and reported information in the ○○○○○○○’s secretary office about the content contained in the said documents was not known to the general public; and (c) the fact that the content

Examining the reasoning of the lower judgment in light of relevant legal principles and records, 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 meaning and scope of official secrets in the crime of divulgence of official secrets, and by misapprehending the legal doctrine on the disclosure of Presidential records under Article 16(1) of the Presidential Records

3. Conclusion

Therefore, all appeals are dismissed, and there is an obvious error in the judgment of the court of first instance, so it shall be corrected in accordance with Article 25 of the Regulation on Criminal Procedure. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)