2020Do9836 Abuse of authority and obstruction of another’s exercise of rights

A

Prosecutor

Attorney LP (National Ship)

1. Supreme Court en banc Decision 2018Do14303 Decided August 29, 2019

2. Supreme Court Decision 2019Do11766 Decided November 28, 2019

Seoul High Court Decision 2019No1962, 2019No2657 decided July 10, 2020

Judgment

January 14, 2021

The appeal is dismissed.

The grounds of appeal are examined.

1. Whether the crime of abusing authority and obstructing another’s exercise of rights constitutes “when doing another’s act not obligated”

(a) Abuse of authority or obstruction of another’s exercise of authority or obstruction of another’s exercise of rights with regard to selection;

The lower court, on the grounds indicated in its reasoning, found that the evidence submitted by the prosecutor alone did not prove that the act of officers and employees of the Arts Council Korea (hereinafter referred to as the “Art Council”) sent the list of candidates to the public officials of the Ministry of Culture, Sports and Tourism (hereinafter referred to as the “Art Council”) constitutes an act of not having a duty of care, and found the Defendants not guilty of the aforementioned part of the facts charged.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on “when having engaged in an act

B. Abuse of authority or obstruction of another’s exercise of rights with regard to unjust entry, including deliberation on support

1) The judgment of the court below

For the reasons indicated in its holding, the lower court found the Defendants not guilty of the aforementioned part of the facts charged on the ground that the evidence submitted by the Prosecutor was insufficient to prove that the executives and employees of the Arts Council sent a list of applicants for a public recruitment project or the persons subject to deliberation at each stage, and reported the status of the progress of deliberation on the public recruitment project constitutes “an act not obligated”.

2) Determination on the grounds of appeal

A) The part of the judgment below acquitted prior to the judgment of first instance

(1) The portion rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless shall become final and conclusive at the same time with the declaration of the judgment, and the prosecutor shall not contest the said part, and the court that has been remanded may not make a decision contrary thereto. Thus, the prosecutor cannot make a claim as to that part as the grounds of final appeal (see, e.g., Supreme Court Decisions 2005Do1247, Oct. 28, 2005; 2006Do920, May 11, 2006). In addition, since the part which was not considered as the grounds of final appeal is the same as that on which a final and conclusive ground of final appeal is not filed, the prosecutor’s assertion as to this part shall not be deemed as the grounds of final appeal (see, e.g., Supreme Court Decision 2001Do265, Apr. 10, 2001).

(2) The record reveals the following circumstances.

Before the judgment of remanding the first instance court rendered a not guilty verdict on the part of the charges of abuse of authority and obstruction of another’s exercise of rights related to unjust entry, such as the support for the Culture and Arts Promotion Fund, which found the part of the charges of abuse of authority and obstruction of another’s exercise of rights related to the above projects as indicated in the judgment of the lower court (excluding the part withdrawn from the prosecution), which found the above officers and employees of the Arts Council to send the list of applicants for the public recruitment project or the persons subject to deliberation at each stage, from among the charges of abuse of authority and obstruction of another’s exercise of authority and obstruction of another’s exercise of rights related to the above project (excluding the part withdrawn from the prosecution). The prosecutor’s grounds of appeal on the remainder of the charges were not asserted, and the prosecutor’s grounds of appeal on the remainder of the charges were rejected.

In light of the above legal principles, the prosecutor’s ground of appeal on this part is related to the part of which confirmation was already made, and thus cannot be a legitimate ground of appeal.

B) The part of the judgment below convicting prior to the first judgment

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on “when having engaged in an act

C. Abuse of authority and obstruction of another’s exercise of rights regarding exclusion of support for artistic movies in 2015

For the reasons indicated in its holding, the lower court acquitted the public official of the Korean Film Council on the part of the facts charged, on the ground that the evidence submitted by the public prosecutor alone was not proven that the act of the executives and employees of the Korean Film Council sent a list of applicants for the public recruitment to the position of "free of duty."

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on “when having engaged in an act

D. Abuse of authority and obstruction of another’s exercise of rights to exclude island-related assistance

For the reasons indicated in its holding, the lower court acquitted the employees of the Publication Industry Promotion Agency of the aforementioned part of the charges on the ground that the evidence submitted by the prosecutor alone was not proven that the act of the executives and employees of the Korea Publication Promotion Agency sent a list of applicants for the class books to the public official of Grade III, and reported the status of deliberation during the aforementioned business progress constitutes “non-obligatory act.”

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on “when having engaged in an act

2. The scope of the establishment of public relations relations with the IL and IP;

The lower court determined that: (a) with respect to the abuse of authority and obstruction of another’s exercise of rights in relation to unjust entry, including the deliberation on the support for the Culture and Arts Promotion Fund, the Defendant and the IP did not constitute a conspiracy relationship with the Defendant on the grounds that the IL did not recognize its functional control over a crime committed after February 2015, which was retired from the office chief of the IO office; and (b) the IP did not recognize its functional control over a crime committed after May 2015, which was retired from the IO office chief secretary; and (c) the Defendant and the IP relations were not established

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not exhaust all necessary deliberations, or did not err by misapprehending the legal doctrine on blanket and functional control, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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

Justices Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won

Chief Justice Noh Tae-ok