[1] Meaning of the crime of abusing authority and obstructing another’s exercise of rights and obstructing another’s exercise of rights

[2] In a case where the defendant, who is the director general of the prosecution bureau of the Ministry of Justice, abused the authority to conduct a decision on the personnel proposal prepared by the prosecutor's office, and let the prosecutor Gap in charge of personnel management prepare a personnel proposal to transfer the career examination which was employed by the prosecutor's office for the second half of 2015 to another public prosecutor's office for the second half of 2015, and was prosecuted for an act of abuse of authority or obstruction of another person's exercise of authority, the case holding that it is difficult to view that the defendant's execution of duties by having Gap prepare the above personnel proposal and assisting the defendant Gap to perform a non-obligatory act

[1] In the crime of abusing authority and obstructing another person’s exercise of rights under Article 123 of the Criminal Act, “when a public official has another person perform an act without any obligation” refers to the time when a public official abused official’s authority and causes another person to perform an act without any obligation under the law. Therefore, even if a public official allows a person in charge of practical affairs to do a fact-finding act with respect to matters belonging to his/her authority, this is only connected to the performance of his/her duties, and thus, cannot be deemed a case where a public official does not have any obligation in principle. However, if the standards and procedures for performing his/her duties specifically specified in the statutes and are given by a person in charge of practical affairs to apply the standards and procedures for performing his/her duties and to participate in procedures, if a public official assists in performing his/her duties in violation of such standards and procedures, it constitutes “where a person in charge of practical affairs performs an act without any obligation.” Whether a person in charge of practical affairs has been granted an inherent authority and role to participate in the procedures, and whether there is no obligation under the relevant statutes should be determined individually.

[2] In a case where the defendant, who is the director general of the Ministry of Justice, abused the authority of the prosecutor's office to decide on the personnel proposal prepared by the prosecutor's office and caused the prosecutor Gap to prepare a personnel proposal to change the career examination which had been employed by the prosecutor's office before the second half of 2015 to another public prosecutor's office, and was prosecuted for abusing authority and obstructing another person's exercise of authority, the case holding that the public prosecutor's personnel management is based on the Public Prosecutor's Office Act and other relevant Acts and subordinate statutes, but the transfer personnel belongs to the personnel authority, and the public prosecutor is required to have high level of expertise, job ability, and personality, and thus the personnel management authority needs to decide on the transfer personnel's contents, and it is difficult to find that the public prosecutor's personnel management authority granted a certain discretion to assist or assist the prosecutor's performance of duties according to the direction or delegation of the personnel management authority and thus, it is difficult to find that the defendant's personnel management guidelines or other legal principles are more reasonable than those of the public prosecutor's personnel management authority and other than those of the above.

[1] Article 123 of the Criminal Code / [2] Article 123 of the Criminal Code, Articles 34(1), 35, and 35-2 of the Public Prosecutor's Office Act, Article 2 of the Government Organization Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2010Do13766 Decided February 10, 201 (Gong2011Sang, 602) Supreme Court Decision 2010Do11884 Decided January 27, 2012 (Gong2012Sang, 403) Supreme Court Decision 2015Do3328 Decided July 23, 2015, Supreme Court Decision 2017Do12534 Decided October 31, 2017

Defendant

Defendant

Attorneys Kim Jae-hun et al.

Seoul Central District Court Decision 2019No424 Decided July 18, 2019

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Relevant legal principles

In the crime of abusing authority and obstructing another person’s exercise of rights under Article 123 of the Criminal Act (hereinafter “crime of abusing authority and obstructing another person’s exercise of rights”), the term “when a public official has another person perform an act without any obligation” refers to the time when the public official abused his authority and causes another person to perform a non-obligatory act. Therefore, even if a public official allows a person in charge of practical affairs to perform a fact-finding act with respect to matters belonging to his/her authority, this is only a result of the public official’s performance of duties, and thus, it cannot be deemed as a case where a public official does not have an obligation in principle. However, if the standards and procedures for performing his/her duties are specifically stated in Acts and subordinate statutes and the standards for performing his/her duties are applied to a person in charge of practical affairs and have another person assist in performing his/her duties in violation of such standards and procedures, the determination of whether a public official has been given a person in charge of performing his/her duties should be made based on whether the public official has been given a non-obligatory act or not.

2. The judgment of the court below

The court below acknowledged that the defendant, who was the chief public prosecutor of the Ministry of Justice, ordered the public prosecutor non-indicted 1 in charge of the prosecutor's personnel management to prepare a personnel plan (hereinafter referred to as "the instant personnel plan") assigned to the △△△ branch office of the △△△ branch office (hereinafter referred to as "△△ branch office") of the △△△ branch office (hereinafter referred to as "△ branch office"), which is the branch office of the △△ branch office (hereinafter referred to as "△ branch office"), which is the branch office of the △△ branch office of the △△ branch office (hereinafter referred to as "△ branch office"), which is the branch office of the △ branch office of the △ branch office of the △ branch office, who is the branch office of the △ branch office of the △ branch office of the △ branch office of the △ branch office of the public prosecutor's office. The court below determined as follows on the grounds of its stated reasoning. The instant personnel plan is practically in violation of the principle of prosecutor's personnel management and personnel management system.

3. Judgment of the Supreme Court

A. However, in light of the following circumstances revealed in the aforementioned legal principles, relevant statutes, records, etc., it is difficult to view that the Defendant’s act of having Nonindicted Party 1 prepare the instant personnel proposal and thus, Nonindicted Party 1 assisting the Defendant in the execution of his duties constitutes a case where the Defendant had Nonindicted Party 1 do a non-obligatory act in violation of the standards and procedures for the performance of duties

1) The appointment and assignment of a prosecutor shall be made by the President on the recommendation of the Minister of Justice (Article 34(1) of the Public Prosecutor’s Office Act). Meanwhile, according to Article 2 of the Government Organization Act, a subsidiary organ of a central administrative agency shall be the Vice Minister, Vice Minister, Deputy Administrator, Director, Director, and Director except as otherwise provided for in the same Act and other Acts. A central administrative agency may have assistant organs under the head, Vice Minister, Deputy Director, Director, Director, and Director-General of the relevant agency. In addition, according to “the organization of the Ministry of Justice and its affiliated agencies” as the Presidential Decree, the director-general of the public prosecutor’s office shall take partial charge of the matters of prosecutor’s administration (personnel, organization

The transfer personnel to a public prosecutor shall be based on the principles and standards prescribed by relevant Acts and subordinate statutes, such as the Public Prosecutor's Office Act. However, the transfer personnel belongs to the authority of a personnel authority. On the other hand, public prosecutors are required to have high level of professional knowledge, job ability, and personality, so personnel authorities need to determine the transfer personnel in consideration of various circumstances, and have considerable discretion in making a decision on the change of personnel, unless it goes beyond the restrictions of Acts and subordinate statutes. A person in charge of working for assisting or assisting the public prosecutor in the performance of duties according to the direction or delegation of a personnel authority may be deemed to have certain authority

2) The Minister of Justice shall prepare a fair standard of evaluation to evaluate the performance and quality of a prosecutor. The said standard of evaluation of qualities shall include loyalty, integrity, and friendlyness, etc. The Minister of Justice shall evaluate the prosecutor according to the above standard of evaluation, and reflect the results of the evaluation in personnel management, such as assignment, transfer, etc. (Article 35-2 of the Prosecutors' Office Act). In order to deliberate on important matters concerning the appointment, transfer, and personnel management of a prosecutor, the Prosecutor's personnel committee shall be established in the Ministry of Justice, and the Prosecutor's Personnel Committee shall deliberate on matters concerning the principles and criteria of appointment, transfer, and change of position of a prosecutor (Article 35 of the Prosecutors' Office Act). The Ministry of Justice has arranged the principles and criteria of personnel management accumulated through deliberation and resolution by the Prosecutor's Personnel Committee in the form of data collection, which shall be called "the principle of personnel management of a prosecutor's personnel management, including director general of the Ministry of Justice, director general of the prosecutor's office, chief of the institution and personnel management, including the head of an overseas prosecutor's opinion.

On July 26, 2005, the call system for career inspection was the most recent subject of deliberation by the Prosecutor’s Personnel Committee. “The call system for career inspection is to take into account the need for the career inspection of the subordinate branch office, and the call system is to change the principle, but to take into account the demand for personnel management or the future personnel operation plan, so that the transfer prosecutor may take into account some of his or her work performance or qualities first at the time of the next recruitment, and there was no relevant deliberation and resolution at the Prosecutor’s Personnel Committee on August 17, 2015 related to the public prosecutor’s personnel in the latter part of 2015 of this case. The call system for career inspection was to place a career inspection at the time of the call system, and to take into consideration the personnel affairs of the pertinent career public prosecutor in the next time, taking into account the fact that the call system was placed at a relatively high level of strength while serving at the time of the call for career inspection.

However, even if the arrangement system of a public prosecutor by the time of the instant personnel plan was maintained as one of the personnel standards or considerations, it is merely a fact that the career inspection by the public prosecutor is considered in the next time personnel management. In addition, in light of the relevant statutes, the placement system of the public prosecutor by the public prosecutor’s office is one of the various personnel standards or various considerations premised on relevant statutes or the matters to be deliberated and resolved by the public prosecutor’s personnel committee, and it cannot be deemed that the public prosecutor by the public prosecutor in charge of personnel management is one of the personal personnel standards or various considerations to be observed in preparing the public prosecutor’s draft of personnel management, and it is difficult to find any grounds to regard that the public prosecutor by the public prosecutor

3) As such, a broad discretion is recognized in personnel affairs of the public prosecutor’s transfer, and personnel standards also assumes that various standards and considerations should be taken into account. In light of the circumstances such as that the transfer personnel of a public prosecutor consists of the assignment of a majority of personnel subjects and the workplace, and impact on mutual chains, a working-level person, who prepares a personnel proposal under the direction or delegation of a personnel authority, has the discretion to prepare a personnel proposal by comprehensively taking into account the aforementioned various standards and considerations for all the personnel subject to personnel affairs, and where each of such standards or considerations cannot be satisfied in the process, he/she shall be deemed to be able to apply by making a decision within the scope of the discretion.

Therefore, even if the instant personnel plan is re-transfered to △△ Branch Office, which is a career inspector, who was working in the △△ Branch Office, △△ Branch Office, it cannot be readily concluded that such circumstance alone goes against the essence of the system of placement through career inspection, or goes against the principles and standards of inspectors.

In addition, the fact that a person subject to personnel management immediately submits a written resignation cannot be recognized as contrary to the principles and standards of prosecutor personnel management.

Ultimately, even based on the facts charged in the instant case and the reasoning of the lower judgment, it cannot be deemed that the Defendant’s act of having Nonindicted Party 1 prepare the instant personnel proposal, and it constitutes “when having had Nonindicted Party 1 perform an act without any obligation” as referred to in the crime of abuse of authority, in violation of the principles and standards of

B. Nevertheless, solely based on the circumstances stated in its reasoning, the lower court determined that the Defendant had Nonindicted Party 1 perform an act for which he did not have any obligation in the crime of abuse of official capacity, and found the Defendant guilty of the facts charged in this case on this premise. In so doing, the lower court erred by misapprehending the legal doctrine on the crime of

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Park Sang-ok (Presiding Justice)