(영문) 서울중앙지방법원 2018.6.22. 선고 2018고합193 판결

A person shall be punished by imprisonment with prison labor for not less than eight months and suspension of qualification for the crimes of No. 1, which are set forth in the judgment of the defendant, and for not less than four months.

Reasons

Criminal facts

[Status of Defendant]

On February 191, the Defendant was appointed to the Ministry of Security and Planning of the NIS 2 from 30 to 40, and served as MaF G under the control of the NIS 2 (hereinafter referred to as the “National Intelligence Service”). (The Head of the NIS from H to 10) was an institution assisting and supporting the President’s smooth performance of state affairs during his/her term of office, and the President’s successful performance of state affairs was based on the perception and convention that it is national security, and the head of the department prior to the month, L, etc. were present, and the head of the organization and the head of the organization should actively respond to the key issues of the NIS 2, such as the direction-making and performance of the NIS 2, and the head of the organization and the head of the organization should repeatedly instruct the employees of the NIS 3 to take advantage of the direction-making and performance of the NIS 2, such as the direction-making and performance of the NIS 2, and the head of the organization and the head of the organization must be affiliated with the election force.

On August 29, 2012, Qu 1, an external assistant of the F. 4, the Seoul High Court or the 1st 2nd 2nd 5th 2nd Gab Gab 3rd Gab Gab 5th Gab Gab 1st Gab Gab 1st Gab Gab 5th Gab Gab 1st Gab Gab 1st Gab Gab 1st Gab 1st Gab Gab 1st Gab 1st Gab 1st Gab 1st Gab 1st Gab Gab 1st Gab 1st Gab 4th Gab Gab Gab 1st Gab Gab 1st Gab Gab Gab 1st Gab Gab 1st Gab 1st Gab 2012.

Criminal facts

1 Violation of the National Intelligence Service Act and the Public Official Election Act

피고인은 2010. 12. 12.경부터 2012. 11. 5.경까지 위와 같이 지휘 체계를 거쳐 하달된 위 J 등의 지시에 따라 국정원의 직무와는 무관한 활동임에도 시누이 AH, AI, 지인 AJ, AK 등에게 국정원의 예산으로 집행되는 활동 대가를 제공할 것을 약속하면서 트위터를 이용한 트윗 리트윗 활동 등 인터넷, 트위터 등의 사이버 공간을 활용하여 당시 대통령, 정부 및 여당 또는 여권 정치인들을 지지 · 찬양하거나 야당 또는 야권 정치인들을 반대 · 비방하는 내용의 글 또는 AC 선거 등 각종 선거와 관련하여 당시 여당 및 여권 후보자를 지지하거나 야당 및 야권 후보자를 반대하는 내용의 글을 게시할 것을 부탁하고, 이와 더불어 피고인 또한 위와 같은 활동을 직접 하기로 마음먹은 채 2012. 9. 2.경 불상의 장소에서 트위터를 이용하여 "AB 회사, AL서 59억 받은것 맞다. AB이 AM때 압력성 전화를 한후 4년간 수임료 59억이라니. 압력성 청탁성 댓가치곤 넘 마니 챙겨서 문제 ㅋ"라는 글을 게시한 것을 비롯하여 그때로부터 2012. 10. 3.경까지 사이에 별지 범죄일람표단, 별지 범죄일람표 (1) 중 연번 2 내지 21번, 23 내지 43번, 47번(총 42건) 및 별지 범죄일람표 (2) 중 연번 10 내지 17번, 55, 56번, 58 내지 62번, 64, 65번(총 17건)은 제외한다1)] (1) 기재와 같이 AC와 관련하여 특정 후보나 정당을 지지, 반대하는 글 34건, 2010. 12, 12.경부터 2012. 11. 5.경까지 사이에 별지 범죄일람표 (1), (2) 기재와 같이 특정 정당이나 정치인을 지지, 반대하는 글 223건을 게시하였다.

Accordingly, the Defendant engaged in an election campaign in sequence with K, L, or team leader in the above J and its chain of command by taking advantage of the status of public officials prohibited from election campaign in relation to AC, and engaged in an election campaign by taking advantage of the position of staff members of the NIS in order to gather opinions or facts related to supporting, praiseing or opposing a specific political party or politician.

2. Preparation of false official documents;

From 2010 to 2010, the Defendant prepared a false statement of the team leader's team leader's team leader's team leader's team leader's team leader's team leader's direction for the proliferation of online strike according to the direction system and submitted it to the superior's results as it expanded '0'.

On March 201, the Defendant: (a) at the office of the NIS 1 team located in the Seochodong in Seocho-gu Seoul Metropolitan Government, the Defendant did not consent to the Defendant’s activities as the team leader, 3 graduate students R, etc., who are professors of AO University, such as her husband AP, AP, and AP, who are professors of departments as AP, with no intent to have them act as the team leader; and (b) the Defendant prepared a false statement in the “AS” column, “AS (36)”, “In the team name column,” “In March 1, 2010,” “5 million won per month” in the budget column, “in the main mission column, by publication of pending issues, etc.; and (c) drafted a false statement in the “PS” column, “for the purpose of exercising the program leader’s activities from the 3rd team leader’s false statement in the attached list, and then prepared it by the Defendant, the Defendant, as the team leader, with the purpose of exercising the program leader’s activities.

3. Uttering of official documents prepared in falsity;

On April 5, 2011, the Defendant provided the said AR and AP's protocol to the person who prepared the 10 team report "the 10 team status of this team leader who is unaware of the fact that this team leader's protocol was falsely prepared, as described in the preceding paragraph, and had the person who prepared the above AR and AP attach it to the above report, and reported as if it was authentic to the superior who is aware of the false fact. Accordingly, the Defendant exercised the part of the team leader's protocol prepared in three times in total from the time to August 9, 201, including the use of the part of the team leader, which is an official document prepared in falsity, in addition to the use of the part of the team leader, which is a false public document.

4. Forgery of private documents;

On January 201, 201, the Defendant excluded from the above external assistants, such as the team leader, and obtained the internal approval of the NIS in order to conduct such systematic cyber activities through the Internet site, twitter, etc. In fact, taking advantage of the fact that it is easy for the Defendant to take internal approval of the persons with social reputation such as university professors to participate in the activities as the team leader, and that the internal approval of the persons with social reputation such as university professors, etc., who are currently in office as a professor of A0 University at the time, was appointed as the 0 team leader and had AH, AI, etc. conduct twitter activities without the intention of operating the 0 team, or the Defendant was intended to receive twitter activities without the intention of having them conduct twitter activities, or to receive the corresponding activity expenses through the performance report, the Defendant selected AP and AR as the team leader, and prepared an internal plan report as if he were false and obtained the internal approval of the internal plan.

On April 29, 2011, the Defendant entered “AT” in the resident registration number column and “A Q Q Q” in the receipt paper printed in the amount of KRW 3,00,000, which was printed on the receipt paper printed in the amount of KRW 3,000,000, with the knowledge that the expense would be paid if the Defendant prepared and submitted a receipt in its name as if Q and AR had engaged in Twitter activities differently from the actual report, corresponding to the false report as seen above, and even though he had performed the activities as the O team leader, he did so.

As a result, the Defendant, for the purpose of uttering, forged a receipt in the name of Q, which is a private document on rights and obligations, from March 31, 201 to July 29, 201, and forged a receipt on a total of nine occasions in the same manner as indicated in the attached list of crimes (5).

5. Uttering a falsified investigation document;

The Defendant, at the time and place of the above 4. Claim 4. The Defendant’s employee in charge of the accounts of the State Council under his name, who was aware of the forgery, was genuine on April 29, 201 in the name of Q that was forged as above.

From March 31, 2011 to July 29, 2011, each of the forged receipts was held nine times in total, as shown in the crime sight table (5).

6. Fraud;

On April 29, 2011, the Defendant did not allow Q to act as the head of this team. As above, the Defendant, a home-based supervisor, had AH, AI, etc. to act as a Twitter or carried out Twitter activities as if the Defendant’s own team was, despite the fact that the Defendant, as stated in the foregoing 4., presented one copy of a fake receipt of KRW 3 million in the name of Q Q Q, which was forged as stated in the above 4. The Defendant, presented to the staff in charge of accounts of the NIS in the name of the State, and submitted one copy of A Q Q receipt of KRW 3 million in the name of the Defendant, as stated in the above 4. As such, Q, as if Q had engaged in SNS activities, including university professors, etc., to form a favorable public opinion against the Government and female party or passport political parties, thereby deceiving the employees in charge of the above accounting as if he were to pay “expenses expenses”.

As above, the Defendant, by deceiving the above personnel of the NIS, received KRW 3 million from the victim in relation to the budget of the NIS from March 31, 201 to July 29, 201 in the same way, by stealing the personal information of Q and AR, etc. from March 31, 201 through the same method, and acquired KRW 36,813,800 in total as activity expenses of the team leader nine times in the same manner as shown in the attached crime list (5).

Summary of Evidence

1. Defendant's legal statement;

1. Copy of the interrogation protocol of a prosecutor (third time) against AU;

1. Each prosecutor's statement made to Q, AR, AP, AH, and AI;

1. Each investigation report (in the case of violation of the Act on the Law of the NIS, etc., by attaching extracting data related to investigation by a NIS employee A in the investigation records of the case, such as violation of the Act on the Law of the NIS leader, attaching internal audit data, etc., hearing of the statement by a NIS AJ member, hearing of the Twitgle account of A-related Twitter, hearing of the statement by a management account of the NIS, search and seizure warrant (AV, 2017-2606, 206, and 2017-2608), execution results of the execution of a warrant of search and seizure (aV, 2017-2608), submission of documentary reports by a NIS employee A related to the NIS employee, type of false preparation, and confirmation of

1. Compliance with directions from J, and replys to requests for cooperation in investigations and investigations;

1. Application of Acts and subordinate statutes (Seoul Central District Court 2013Gohap577, 1060, Seoul High Court 20142820, Supreme Court 2015Do2625, Seoul High Court 2015No1998);

1. Article applicable to criminal facts;

Articles 25(3)2 and 85(1) of the former Public Official Election Act (amended by Act No. 12393, Feb. 13, 2014; hereinafter the same shall apply); Articles 255(3)2 and 85(1) of the Criminal Act; Article 30 of the Criminal Act (including the violation of the Public Official Election Act); Articles 18(1) and 9(2)2 of the former National Intelligence Service Act (amended by Act No. 12266, Jan. 14, 2014; hereinafter the same shall apply); Article 30 of the Criminal Act; Article 227 of the Criminal Act (including the violation of the National Intelligence Service Act; hereinafter the same shall apply); Articles 229 and 227 of the Criminal Act; Article 231 of the Criminal Act; Articles 234 and 231 of the Criminal Act; Article 37 of the Criminal Act ( comprehensively including fraud)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Crimes of Violating the Public Official Election Act and the National Intelligence Service Act, and punishment prescribed for a crime of violating the National Intelligence Service Act with heavier punishment)

1. Selection of punishment;

Selection of imprisonment for the remaining crimes except for those violating the National Intelligence Service Act;

1. Article 18 (3) and 18 (1) 3 of the former Public Official Election Act (the punishment on a violation of the Public Official Election Act and the violation of the National Intelligence Service Act, which are in the commercial concurrent relationship therewith and the punishment on the remaining crimes shall be separately sentenced);

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Mutual Crimes except for the violation of the National Intelligence Service Act, and the aggravated punishment for concurrent Crimes prescribed in the most severe fraud)

Reasons for sentencing

1. The scope of punishment by law;

(a) A violation of the Public Official Election Act and a violation of the National Intelligence Service Act: Imprisonment for not more than five years and suspension of qualifications for not more than five years;

(b) Remaining crimes: Imprisonment with prison labor for not more than 15 years;

2. Reference to the sentencing criteria: A violation of the Public Official Election Act and a violation of the National Intelligence Service Act cannot apply the sentencing criteria as they are in a mutually competitive relationship, and the sentencing criteria are not set for a violation of the National Intelligence Service Act. In addition, it is unreasonable that the overall sentencing of the accused does not constitute separate sentencing as a result of the application of Article 18(3) and 18(1)3 of the former Public Official Election Act, which provides for the separate sentencing criteria, is unreasonable. Accordingly, it is reasonable to refer to the following sentencing criteria appropriately.

A. Violation of the Public Official Election Act

[Determination of type] Election campaign in violation of the Election Campaign Period and the status of public officials for illegal election campaign (Type 3)

[Special Aggravationd Persons] ○ Aggravated Elements: A planned and organized crime

[Scope of Recommendation] One year of imprisonment - Three years (Aggravated Field)

B. Fraud2)

[Determination of Punishment] General Fraud (less than KRW 100,00)

[Special Convicts] Reductions: ○ Reductions. Cases where punishment is not imposed or damage is recovered from a considerable part)

○ Aggravations: Cases where a criminal act is extremely poor or a criminal act is committed by deceiving a court in a trial proceeding; 4)

[Scope of Recommendation] Imprisonment, six months, one year and six months (Basic Area)

3. Determination of sentence;

(a) Details of decision;

1) A violation of the Public Official Election Act and the National Intelligence Service Act: Imprisonment with prison labor for 8 months and suspension of qualifications for one year;

2) Remaining crimes: Imprisonment for 4 months;

B. Reasons for a sentence of sentence 1) Unfavorable circumstances

A) Article 7 of the Constitution provides a public official as a volunteer to the entire people who are not a specific political party or political force, and guarantees the political neutrality of public officials as constitutional values, and accordingly, imposes the duty of political neutrality on public officials under the statutes, such as the State Public Officials Act. In particular, the NIS is an institution under direct control and supervision of the President, a wide range of budget and organization. In many cases, where the organization, budget, performance of duties, etc. are not disclosed, it is easy to transfer it to a tool for the maintenance of the regime and the re-production of duties, and in such a case, there is considerable risk that it may affect democracy. Accordingly, the NIS Act first puts in participating in political activities, and separately prohibited and imposed criminal punishment provisions. Accordingly, the NIS employees need not only comply with political neutrality obligations, regardless of their duties or status, but also need to be specifically alerted in participating in political activities by using positions and organizations.

In addition, the Public Official Election Act provides for the duty of political neutrality of public officials in election, and provides criminal punishment for election campaign by using their status or relation with their duties, which is also an essential element of the election system that should be secured in order to prevent the damage of the freedom and fairness of election due to the illegal election by which the authority is mobilized.

However, the Defendant, in collusion with the president and executive officers of the NIS including the president of the NIS, and the F employees, committed cyber activities that support and praise the president and the political parties belonging thereto, and oppose and slander the party and the political parties belonging thereto, thereby taking advantage of the position of the NIS staff members prohibited under the Act on the National Intelligence Service by taking advantage of the position of the NIS, and carried out an election campaign prohibited under the Public Official Election Act by taking advantage of the position of the public official for the purpose of supporting and opposing the candidates of the party in relation to AC. Such crimes by the Defendant cannot be assessed as significantly serious violation of the Constitution and statutes.

The Defendant committed the instant crime by hiding his identity as if he were the general public, or by carrying out the instant crime in a manner that leads the general public to their activities and instructs them to do so.

The method of such a crime is highly likely to distort public opinion and actually realize such risks. The employees of the National Intelligence Service, including the NIS, have to take an oath that “a public official performing the duties of national security, who is fluoring to serve the State by demonstrating a clear sense of view and duty, observing laws and subordinate statutes and official orders, and fulfill his duties in good faith.” The ultimate purpose of taking such an oath is to protect the people from danger to the inside and outside of Korea. To achieve this purpose efficiently, the duties in the National Intelligence Service are carried out in a mutually clear manner, and the instruction of the senior officer of the National Intelligence Service cannot be said to be prior to the interests of the people.

Although the Defendant did not lead the instant crime, in light of the fact that he took part in the instant crime for two years from December 12, 2010 to November 5, 2012, it is difficult to view that he/she took part in the passive and passive criminal act without the choice of force from the upper court’s instruction. The Defendant appears to have actively committed the instant crime solely on the ground that he/she was under the upper court’s instruction. Moreover, the above act of life-saving is merely a matter of choice to take place in order to avoid disadvantages in personnel affairs and evaluation within the organization, etc., and thus, even if considering the circumstance that the Defendant committed the instant crime by the upper court’s instruction, it is difficult to avoid any polar situation where the Defendant was under the upper court’s instruction over a prolonged and organized illegal act, such as the instant case, long-term and organized act cannot be avoided.

B) Furthermore, the Defendant, upon receiving the direction to expand 0 teams, prepared and conducted false official documents, such as preparing and reporting a written protocol with a person other than the team as 0 team in order to increase the performance. The Defendant forged and held a receipt in the name of the team leader, thereby deceiving the staff of the NIS by deceiving him/her of approximately KRW 3,681,00 in terms of activity expenses. Accordingly, the money to be used for the safety of the people was wasted for the sake of the public’s attack, unlawful writing, and the interest of the Defendant.

(ii) favorable circumstances;

The Defendant led to the confession of a crime and recognized his mistake. The Defendant appears to have faithfully performed his duties for a long time at the NIS, and the crime of violation of the Public Official Election Act and the National Intelligence Service Act is deemed to have been involved in the duties in accordance with the direction of the upper court, and at the early stage, it seems that there was no awareness of illegality or did not have been weak. Some of the amount obtained by deception due to the fraud was paid to the actual 0 team members, and the total amount of the defrauded money was deposited before the prosecution was deposited. A person who stolen the name by the use of the crime of forging a private document or the use of a written investigation is not wanting to

3) The Defendant’s age, character and conduct, environment, family relationship, motive and circumstances of each of the instant offenses, and the circumstances after the commission of the offense, etc. shall be comprehensively considered to determine the sentence as ordered in light of various sentencing conditions under Article 51 of the Criminal Act.

Judges

The presiding judge, the Full Judge Line

Judges Kang Jin-han

Judges Do Residents-ho

Note tin

1) On May 29, 2018, the prosecutor filed an application for permission to amend an indictment with respect to the withdrawal of the above part of the facts charged, and this court on the same day.

A license was granted.

2) The crime of preparing each false official document, and the crime of uttering of each false official document, inasmuch as the crime of forging a document is accompanied by the crime of forging a document while committing the crime of fraud;

The crime of forging each private document and the crime of uttering of each private document shall not be treated as a majority crime, and the sentencing guidelines for fraud shall apply.

Criminal acts concerning documents shall be treated as sentencing factors only.

3) The Defendant deposited the full amount of profit.

4) The crime was committed by actively mobilization of the method of forging documents, etc.

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