[1] The case holding that a local government head's failure to make a request for a disciplinary decision against public officials under his/her jurisdiction taking part in the general strike of the Korean Public Officials' Union constitutes a crime of abandonment of duties

[2] The case holding that a document which contains a document which contains a document which contains a document which contains a different content from the original document and prepares it as if it were the original document, shall constitute a crime of preparation of a false public document, in case where a part of the original document, although it had already been authentic, has been completely deleted as if it had never existed

[3] In a case where a criminal defendant who was sentenced to the suspension of qualification or heavier punishment has received special reinstatement, whether there is a legal obstacle to the suspension of sentence (affirmative)

[1] The case holding that since the head of a local government has discretion to determine whether a specific act of a public official under his/her jurisdiction constitutes grounds for disciplinary action, but if it is evident that it constitutes grounds for disciplinary action, he/she is obligated to request disciplinary action to the personnel committee, barring special circumstances, barring special circumstances, the head of a local government is not negligent in performing abstract duty by statutes, internal rules, etc., but is an act of failing to make a request for disciplinary action against a public official under his/her jurisdiction who participated in the general strike of the Korean Public Officials' Union, the act constitutes an act of failing to perform abstract duty by statutes, internal rules, etc., but it

[2] The case holding that where a part of the original document, which had already been authentic, was completely deleted as if it had never existed in the original document, thereby making a document different from the original document and making it a document as if it were the original document, it constitutes a crime of preparation of a false official document

[3] The term "previous conviction who is subject to the suspension of qualification or heavier punishment" refers to the criminal record itself, and as such, whether the sentence has lost its validity or not, there is a legal disability that can still be suspended even if the defendant was subject to the suspension of qualification or heavier punishment, even if he was specially recovered, the suspension of sentence is not possible.

[1] Article 122 of the Criminal Act / [2] Article 227 of the Criminal Act / [3] Articles 59 (1) and 82 of the Criminal Act

[3] Supreme Court Order 83Ro8 dated April 2, 1983 (Gong1983, 841) Supreme Court Decision 95Do2446 Decided December 22, 1995 (Gong1996Sang, 630)

Defendant

Defendant and one other

United States of America

Law Firm Busan, Attorney Yoon In-ok

Ulsan District Court Decision 2005Ra311, 905, 2005Ma806 decided Nov. 24, 2005

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal by the defendant and prosecutor

(a) Reasons for appeal by the defendant and his defense counsel

(1) misunderstanding of facts or misapprehension of legal principles

(A) Loss of duty

In relation to the instant case, the Defendant did not engage in a critical neglect or renunciation of duties, but determined whether to request a disciplinary decision against the public officials belonging to the Defendant, as in this case, by comprehensively taking into account all the following circumstances according to a political and policy decision as a personnel authority for the public officials belonging to the Defendant, depending on the nature of local autonomy.

(1) The Local Public Officials Act provides that the head of a local government shall automatically request a disciplinary decision without room to consider other circumstances if a cause for disciplinary action arises. However, the head of a local government is a firm administrative practice to determine whether to request a disciplinary decision by comprehensively taking into account all the circumstances.

② On 202, when a request for a disciplinary decision was made only for only part of the case where the Defendant was clearly collective action, the precedents at the time of establishment of the public official labor union, and the precedents at the time of establishment of the public official labor union or teachers subject to criminal punishment or disciplinary action after being legalized, were dismissed, reinstated, and reinstated, and further, the precedents of the former school union and the precedents at the time of compensation for a person of distinguished service to democratization, and the precedents at the time of deliberation on whether the person related to the democratic labor union is recognized as a person of distinguished service to democratization

③ Considering the political and policy aspects of local autonomy, the nature of local autonomy, the central government related to this case, in particular, the consultation with the labor union of public officials, etc., with the intention of the Ministry of the Interior including the Ministry of the Interior’s attitude to force the Defendant by unilaterally formulating disciplinary guidelines, such as a disciplinary action, before the strike of public officials’ labor union was implemented.

④ The Ministry of the Interior, upon entering the strike in the labor union of public officials, gave guidance to all the union members participating in the strike to make a heavy disciplinary decision. This was an unfair and uniform guideline, without considering all the specific circumstances of the public officials participating in the strike.

⑤ Since the Democratic Labor Party to which the Defendant belongs recognized a public official’s three labor rights without restriction and recognized a certain degree of legitimacy of the strike, the fear or rejection of participation in the strike should also be considered relatively less than those of the public official labor union members belonging to the Dong-gu Office compared to those of other local government members.

(6) The above guidelines by the Ministry of the Interior are to deny the authority of the head of the local government from the fundamental point of view, and they are not deemed to deny the local autonomy system as the last group of the central administrative system that has become a non-fluence of the military regime.

7) Unlike the guidelines of the Ministry of Government Administration and Home Affairs and the Ulsan Metropolitan City, the deputy head of the Dong-gu, in which he/she acts as an agent after the first instance judgment against the defendant, only three of the heavy disciplinary decision requests and three hundred and three of the minor disciplinary decisions requests are made, and the Ministry of Government Administration and Home Affairs or Ulsan Metropolitan City's guidelines for a request for disciplinary decision against the defendant of the Ministry of Government Administration and Home Affairs and Ulsan Metropolitan City are sufficiently known.

(8) Since the guidelines of the Ministry of Government Administration and Home Affairs and the Ulsan Metropolitan City have clearly denied the local autonomy system itself, the defendant was unable to comply with such guidelines as the head of the local government of the privately-owned local government.

9. The defendant forced a request for a disciplinary decision related to the strike of public officials by the Ministry of the Interior, and filed a request with the Constitutional Court for adjudication on competence dispute with respect to the violation of the authority of the head of local government in terms of the revision of the Service Ordinance and the annual decision.

(10) If a cause for disciplinary action occurs to a public official, the Local Public Officials Act provides that a request for disciplinary action may be made within two years from the occurrence of the cause for disciplinary action.

Therefore, considering the above overall circumstances, the defendant, as the head of the local government with personnel authority for the public officials belonging to the Ministry of the Interior and Ulsan Metropolitan City without following the guidelines of the Ministry of Government Administration and Home Affairs and the Ulsan Metropolitan City, decided whether to punish the public officials participating in the strike, and even though such attitude of the defendant cannot be seen as a abandonment of duty, the court below recognized that the defendant committed a crime of abandonment of duty as stated in the judgment of the court below. The court below erred

(B) The portion on the preparation and display of false official documents

① The tour visit plan for senior citizen centers at the head of the Gu on November 16, 2004 (hereinafter “net visit plan”) was prepared on the date on which the Defendant actually visited the senior citizen center, and thus, it cannot be deemed as a false official document because it is not completely different from the fact, except that on which the use of business promotion expenses is not stated.

② With respect to the preparation of the instant plan for inspection and visit to the center for older persons (hereinafter “inspection plan”) on October 29, 2004, the Defendant did not receive any report from the chief of the office of the secretary-general or the working-level staff on how much discussions were discussed, and did not approve the said written plan later, and did not take any part in the Defendant’s prior direction to the subordinate staff.

Nevertheless, the court below found the defendant guilty on this part of the charges by misunderstanding the facts or misunderstanding the legal principles, and citing that the defendant prepared and implemented the above tour plan and inspection plan in collusion with subordinate employees. Thus, the court below erred by misunderstanding the facts or misunderstanding the legal principles.

(2) The assertion of unreasonable sentencing

(A) Removal of the cause

After the defendant was sentenced to suspended sentence in the first instance court, the result of a request for disciplinary action against a public official who participated in the strike to the personnel committee in Ulsan Metropolitan City. Furthermore, the deputy head of the Gu requested a disciplinary action against only three persons different from the guidelines of the request for heavy disciplinary action against all of the Ministry of Government Administration and Home Affairs and Ulsan Metropolitan City, and requested a minor disciplinary decision against the remaining 306 persons, which can be said to justify the defendant's assertion that the position of each public official who participated in the strike or the position of public official labor union should be reflected.

(B) A public official labor union entity

Although the Constitution stipulates that the public official labor union is guaranteed by the law, our government and political rights do not enact any law for the public official labor union until now in the form of a kind of duty. Nevertheless, the public official labor union was a clear organization that has been organized 140,000 members at the time of the instant case and is engaged in collective action at all times by collecting cooperative expenses with the enforcement system, and it cannot be said that there is no substance, such as the fact that many local governments have already been engaged in collective bargaining with the public official labor union and the collective agreement, which is recognized by the majority of local governments.

(C) Cases at the time of the launch of public officials' labor union on 2002

Even if a public official's union is organized, there was a group action of the same public official as this case, but only part of the public official's union leader participating in collective action at the time was subject to criminal punishment and a request for disciplinary decision. Thus, if following the logic of the prosecutor's office on this case, all the national heads of local governments who did not request a disciplinary decision for a public official participating in collective action at 202 may be deemed to have abandoned his/her duties. The prosecutor who did not know that the head of local government was a member of his/her duties by neglecting his/her duties may not have actually deserted his/her duties.

(D) The precedents of the Democratic Labor gun and of the Jeonsung;

It is now under deliberation that both the National Assembly of Labor and the National Assembly of Korea have become an organization of a union that does not recognize the law, and its activities have been subject to a lot of punishment due to illegal behaviors committed by the organization. However, after that, teachers who were dismissed or punished as a result of the compatibility of the law were recovered from office, reinstated, and were given compensation as a person of distinguished service to democratization, and those who participated in the Democratic Labor and Labor Relations Campaign should be recognized as a person of distinguished service to democratization and be compensated.

(e) Actual fact of a request for disciplinary decision

The head of a local government did not immediately make a request for disciplinary action against the relevant public official on the ground that the cause for disciplinary action occurred, and collected materials related to the cause for disciplinary action, and received explanation from the relevant public official, and determined whether to make a request for disciplinary action by comprehensively taking into account the circumstances, degree of participation, personal circumstances, etc., and the Defendant also did not make a request for disciplinary action against the relevant public official through the above procedure.

(f) The nature of local autonomy

The personnel management and disciplinary action against a local public official is entirely the authority of the head of the local government to which the public official belongs, as in other autonomous affairs, and the Local Autonomy Act stipulates that the State or City/Do delegated affairs may order the performance of duties, but there is no such provision if the autonomous affairs are clearly neglected. This cannot be viewed as the legislation taking into account the essence of the local autonomy. The head of the local government has the authority to make a decision independently from the central government in consideration of various political and policy reasons for the affairs of the local government in which the local government is responsible. The head of the local government has the authority to make a decision independently from the central government. The head of the local government has the political responsibility directly for the residents as in other elections. If the head of the local government clearly neglects the autonomous affairs under his/her duties, the problem to be resolved by the administrative law, such as the legislation that the head of the higher organization directly handles, and it is not a problem to be

(g) the policies of the Democratic Labor Party and the measures of the defendant;

Although the Defendant, as a member of the Democratic Labor Party, has a duty to follow the party theory and policy of the Democratic Labor Party, the Defendant was in violation of the policies of the Democratic Labor Party, intended to resolve the disciplinary issues arising from the strike of public officials in accordance with political convictions, and did not agree with the labor union of the Ministry of Government Administration and Home Affairs, considering that the level of disciplinary action has been set up and the number of the public officials' union members who unilaterally take part in the strike is too excessive, the Defendant took an interim position to direct or impliedly decide on whether to take measures against collective action in accordance with various guidelines of the Ministry of Government Administration and Home Affairs, and the Defendant did not immediately decide on whether to take disciplinary action immediately after the strike of public officials' labor union, and it was the position to carefully deal with the issues after reviewing various circumstances.

(H) The preparation and exercise of each of the instant false official documents was done by the subordinate staff members who are likely to be the defendant in relation to the charge of violating the election law at the beginning. Whether the Defendant violated the election law was subject to the disposition by the prosecution, and the application for a ruling to dismiss it was proved not to have been a violation of the election law, such as receiving a dismissal decision from the court, and therefore, the preparation and exercise of the false official document was completed as an infinite act without any substantial influence on the local residents.

(i) the defendant's living together;

After graduating from a middle school, the defendant was elected from a labor union's chairperson. In around 1998, the defendant was elected from the second chairman of the National Democratic Labor Campaign Federation (Korean Democratic Labor Union Federation). Since then on 2002, the local election was elected from the local election to the head of the Dong-gu Gu and is working as the head of the Gu.

(j) Relationship between the defendant and public official labor union

Although the defendant has an individual idea that it is reasonable to recognize the three labor rights without restriction even to public officials, it was necessary to block the government's bill to recognize the three labor rights limited only by collective action, such as strike, with public opinion and national consensus. The defendant was the head of the Gu from the labor union but did not defend the public officials' labor union because he was the head of the public election local government elected by the people, and the defendant was also in conflict and conflict with the public officials' labor union from the manager and the manager.

(k) Roles as the head of the local government

The defendant, as the head of Dong-gu, has carried out Dong-gu administration in good faith to the local autonomy system, has been disclosing the official fees to the head of the Dong-gu, Ulsan Metropolitan City, North Korea, and realizing a transparent administration. The introduction of the citizen budget participation system to reflect the citizen's intent in the budget compilation, and the defendant is now receiving tension support from the support for the candidate of the head of Dong-gu.

(l) Sub-committee

The deprivation of the authority of the head of the local government from the defendant can infringe on the essence of the local autonomy system. Therefore, in light of the fact that the defendant, as the head of the Dong and the head of the Dong, wishes to have an opportunity to implement administration in the part of the residents after completing the remaining term of office, and all the above circumstances, the sentence of the court below against the defendant (two years of imprisonment, eight months of imprisonment and two years of suspended execution) is too unreasonable, and thus, the amount of the sentence is unreasonable.

(b) Grounds for appeal by the prosecutor (unfair grounds for appeal)

Notwithstanding the guidelines of the Ministry of Government Administration and Home Affairs, the defendant did not perform his/her duties illegally, and even after the completion of the disciplinary procedure for all public officials belonging to the Ulsan Metropolitan City/Do/Si/Gun/Gu strike, the disciplinary procedure is not underway only for those public officials belonging to the Ulsan Metropolitan City/Gu office. The equity among public officials participating in the strike is seriously damaged, and influences and complaints among public officials. Since there is no way to correct illegal omission of autonomous affairs in the Ministry of Government Administration and Home Affairs and Ulsan Metropolitan City, the defendant tried to correct the defendant's illegal act using a means and method that return to residents' disadvantage, and eventually, the defendant failed to comply with a request for disciplinary decision prescribed by the Act on the ground that his/her political convictions, causing confusion in the society of public service. It is difficult to view that the defendant's act of breaking the national discipline is very weak, and that the defendant ordered the preparation and exercise of false public documents and the defendant's order to stop investigations related to his/her violation of the Election Act as the head of the Gu, and that the defendant should not be sentenced to the defendant.

2. Determination:

A. Judgment on the mistake of facts or misapprehension of legal principles by the defendant

(1) Loss of duty

(A) The crime of abandonment of duties is established when a public official neglects his/her duty under the awareness of his/her duty to act, and when he/she abandons his/her duty, it does not mean all cases where the public official neglects his/her duty to act abstractly by law, regulations, etc., and it is likely that the act may impair the State's function and cause damage to the people (see Supreme Court Decision 95Do748, Apr. 22, 1997, etc.). According to the evidence cited by the court below, according to the evidence of the court below, the defendant is working as the head of Ulsan Metropolitan City Dong-gu, Ulsan Metropolitan City, Dong-gu, Seoul Metropolitan City, where he/she was engaged in the general strike of November 15, 2004, and it is not recognized that the above act constitutes a crime of abandonment of duty. Thus, it is examined whether the defendant's above act constitutes a crime of abandonment of duty.

(B) Whether a person is obligated to act for a request for disciplinary decision

(1) Article 6 (1) of the Local Public Officials Act provides that "the head of a local government shall have the authority to appoint, suspend from office, or dismiss public officials under his/her jurisdiction as prescribed by this Act." Article 8 (1) provides that "the personnel committee shall take charge of the following affairs." Article 69 (1) provides that "If a public official falls under any of the following subparagraphs, the resolution on disciplinary action shall be requested and disciplinary action shall be taken according to the result of the resolution." Article 69 (1) of the Local Public Officials Act provides that "When this Act, orders issued thereunder, or municipal ordinances or rules of local governments are violated, 3. When he/she violates his/her official duties or neglects his/her duties, 3. Article 72 (1) of the Local Public Officials Act provides that "the person who has the authority to appoint disciplinary action shall be subject to disciplinary action," and Article 2 (1) of the Local Public Officials Discipline and Appeal Regulations provides that "the person who has the authority to appoint disciplinary action shall legally prescribe disciplinary action against him/her within the scope of disciplinary action prescribed by the Presidential Decree."

② As above, in principle, the Local Public Officials Act, etc. grants the authority to take disciplinary actions against a public official under its jurisdiction to the head of a local government. In order to prevent the head of a local government from arbitrarily determining a disciplinary action, the personnel committee shall set up a strictly limited personnel committee to decide whether to take disciplinary action and a disciplinary decision. However, the personnel committee shall decide whether to take disciplinary action and the authority related to disciplinary action of a public official are allocated to the head of a local government and the personnel committee only when a request for disciplinary action is made by the head of a local government.

Furthermore, with respect to the request for disciplinary action against the personnel committee for the head of a local government, it shall be interpreted that the person who has authority to take disciplinary action has a duty to make a request for disciplinary action only under the jurisdiction of the personnel committee if he/she deems that a public official falls under the grounds for disciplinary action. In addition, Article 2(1) of the Local Public Officials Discipline and Appeal Regulations provides that "if a public official under his/her jurisdiction is deemed to have grounds for disciplinary action, the person who has authority to appoint the local government shall make a request for disciplinary action without delay." In addition, if the grounds for disciplinary action are recognized, the person who has authority to take disciplinary action is not in the form of the discretionary provision that can demand disciplinary action. In full view of the circumstances mentioned above, the person who has authority to take disciplinary action and the head of a local government who has authority to take authority should have a duty to make a request for disciplinary action only if he/she deems a public official under his/her jurisdiction has grounds for disciplinary action. Accordingly, the head of a local government should have the authority to make a request for disciplinary action.

(3) In this case, it is obvious that the defendant specifically has a duty to act for the public officials belonging to the Ulsan Metropolitan City and Dong-gu to take part in the general strike on November 15, 2004. Since it is hard for the defendant to carry out the above-mentioned disciplinary action, it is hard for the public officials to take advantage of the above 10th public official's duty to act for 312 public officials, even if it is carried out the strike in this case to achieve the purpose of "the Act on the Establishment and Operation of Public Officials' Unions", it is an act detrimental to the nature of the public official's duty such as undermining the discipline of the public official's duty. It is also difficult for the public official to take into account that the public official's duty to act for 10th public official's public official's public official's public interest to take advantage of the nature of the public official's duty to act for 10th public official's public official's public interest and thus, it is also difficult for the public official to take advantage of the public official's duty to act for 4th public official's public official's.

(C) We examine whether the disciplinary action against public officials belonging to the Dong-gu, Ulsan Metropolitan City who participated in the instant strike is in the Ulsan Metropolitan City Personnel Committee, or not in the Ulsan Metropolitan City Personnel Committee.

Article 72(1) of the Local Public Officials Act provides that "A disciplinary action against a public official of Grade V or higher or a public official related to him/her and a person related to the same case shall be taken by a resolution of the personnel committee of a City/Do." Article 1-3(1)7 of the Local Public Officials Discipline Regulations provides that "a disciplinary action against a public official related to the same case (Si/Gun/Gu) different from an affiliated agency under the proviso of Article 72(1) of the Act shall be under the jurisdiction of the Special Metropolitan City, Metropolitan City, or Do personnel committee of a Special Metropolitan City, Metropolitan City, or Do." Article 1-3(1)6 of the Local Public Officials Discipline and Appeal Regulations provides that "a disciplinary action against a public official of Grade VI or lower or a public official of Grade VI or lower or a public official belonging to a Si/Gun/Gu, research company, or instructor shall be under the jurisdiction of the Special Metropolitan City, Metropolitan City, or Do personnel committee of a City/Do, and the purport of such provision is that a public official belonging to the same agency and its affiliated agency should be determined.

As to this case, the strike of this case constitutes "the same case where the public officials of the Republic of Korea different agencies belong to different agencies" and the act of participating in the strike of this case constitutes a serious and obvious disciplinary cause since it is obvious that it constitutes intentional act, and thus the disciplinary action against public officials belonging to the Dong-gu Busan Metropolitan City, Ulsan Metropolitan City, which participated in the strike of this case belongs to the jurisdiction of the committee of the committee of the committee of Ulsan Metropolitan City.

On the other hand, even though the defendant fully recognizes that the jurisdiction of disciplinary action was within the Ulsan Metropolitan City Personnel Committee through several questions from the Ministry of Government Administration and Home Affairs and Ulsan Metropolitan City, if a request for disciplinary action was made to the Ulsan Metropolitan City Personnel Committee, it would be possible to take severe disciplinary action, and the defendant's failure to make a request for disciplinary action to protect the public officials under his/her jurisdiction would be nothing more than the defendant's political and political consideration, and it would be the failure of the defendant's duty of action imposed on him/her under the relevant laws and regulations, without justifiable grounds.

(D) Sub-committee

Therefore, the defendant's failure to make a request for disciplinary action against the public officials participating in the strike of this case belonging to the Dong-gu Ulsan Metropolitan City constitutes not neglecting the abstract duty of loyalty by statutes, regulations, etc. but the defendant's act of this case constitutes a crime of abandonment of duty, since it is likely to impair the State's function and cause damage to the people. Thus, the defendant's act of this case constitutes a crime of abandonment of duty. The defendant's assertion that there is no obligation to act against the defendant is without merit, and the remaining assertion of mistake of fact as alleged in the grounds for appeal does not affect the establishment of a crime of abandonment of duty. Thus, the decision of the court below is just, and there is no other error of

(2) The portion on the preparation and display of false official documents

(A) First of all, the Defendant asserts that the contents of the tour plan cannot be considered as a false official document because there is no falsity in the contents thereof. Therefore, we examine whether the tour plan is a false official document or not.

In full view of the evidence duly admitted through the examination of evidence, the court below ordered the defendant to submit the above documents and related documents to the defendant while investigating the violation of the election law, and even according to the defendant's statement, the defendant requested the submission of the above documents to the head of the Gu office, and the non-indicted who is the chief of the defendant's office in receipt of the above order to submit the documents on the front line. The defendant prepared the tour plan of this case along with other subordinate staff of the non-indicted 1 who is the head of the Gu in receipt of the above order and prepared the documents of this case "if the head of the Gu visits the center for senior citizens, he did not use the business expenses when he visits the center for senior citizens." It is recognized that the defendant prepared the tour plan of this case and prepared the documents of this case in full with other assistant staff of the non-indicted 1 who is the chief of the defendant's office in receipt of the above order, and prepared the documents of this case, and prepared the documents of this case without the approval of the election commission."

In light of the background and intention of the preparation of the above tour plan, i.e., the circumstance that the defendant, who is the head of the Gu, intentionally deletes the original document from the original document, and demands the submission of related documents in order to conceal the fact that the election commission made it doubtful that the provision of the work to the senior citizen center is in violation of the election law, and the original document has already been prepared and used in order to conceal the fact that the defendant requested the submission of the documents, and the election commission requested the submission of all documents including the original document in consideration of the fact that the original document has already been intentionally deleted the original document, although the election commission requested the submission of the document, it cannot be deemed that the act of making the original document is not a false document, and it is not a true document, even though the contents of the tour plan itself conforms with the truth.

(B) Next, the Defendant alleged that there was no participation in the preparation of the inspection plan, and thus, I examine it.

In full view of all the circumstances of evidence duly admitted by the court below, the defendant discussed the measures against subordinate staff in light of the circumstances as examined in the judgment on the above tour plan, and the defendant ordered that "I know that I would know about I will do work," prepared the inspection plan and tour plan of this case in collusion with subordinate staff as stated in the facts charged, and the defendant prepared the inspection plan of this case and tour plan of this case to the effect that "the head of the Gu only visited the citizen's center, and the provision of work was done in the social welfare division without the head of the Gu's knowledge," and the defendant approved the tour plan of this case with the contents of his visiting the citizen's center, and the defendant did not approve the review plan of this case with the contents of the provision of work in the social welfare division, but it was difficult for the defendant and subordinate staff to see that the defendant did not know about the purpose of the inspection of this case and the preparation of the tour plan of this case without the defendant's participation in the meeting of this case because he did not know about the purpose of the plan of this case."

(C) As seen above, the judgment of the court below that convicted the defendant of this part of the facts charged is proper, and there is no error of misunderstanding of facts or of misunderstanding of legal principles, since it can be sufficiently recognized that the defendant committed the act of preparing and exercising each false official document in collusion with subordinate employees.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

In light of the motive, means, and result of the instant crime committed in the records and pleadings, the Defendant’s age, character and conduct, criminal records, intelligence and environment, family relationship, and circumstances after the commission of the instant crime, which are various conditions for the sentencing of this case. In particular, the Defendant’s crime of this case is not related to corruption or illegality in the course of performing his duties, and the Defendant is recognized to have performed his duties faithfully. Meanwhile, the Defendant did not take proper disciplinary measures against the public officials participating in the instant crime due to the Defendant’s act of this case. The Defendant, despite recognizing that his act was in violation of the law, attempted to conceal the instant case by illegal means, such as preparing false official documents, by ordering its subordinate employees, even if considering the circumstances cited by the Defendant and the Prosecutor, and thus, the Defendant’s sentence against the Defendant is deemed to be adequate and excessive, and the Defendant and the Prosecutor’s assertion are not justified.

In addition, the defendant and his defense counsel stated that the statutory punishment against the abandonment of duties among the facts charged in this case is imprisonment with or without prison labor, and that the suspension of sentence is possible so that the defendant may continue to perform his duties. As such, Article 59(1) of the Criminal Act provides that "where a sentence of imprisonment with or without prison labor for not more than one year, suspension of qualifications or a fine is imposed, the sentence may be suspended if the former conditions are obvious, taking into account the facts indicated in Article 51: Provided, That this provision shall not apply to a person who has been sentenced to suspension of qualifications or a heavier punishment," and that "the former who has been sentenced to suspension of qualifications or a heavier punishment," as stated in this provision, the suspension of sentence cannot be imposed against the defendant who has been sentenced to imprisonment with prison labor for not less than 1 year and not less than 3 years, and thus, it is reasonable to interpret that the suspension of sentence becomes null and void by the judgment of not less than 9 years on the ground that the suspension of qualifications becomes null and void."

3. Conclusion

Therefore, all appeals by the defendant and the prosecutor are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges High-Level (Presiding Judge)