Where a public official prepares and uses a false public document for the purpose of actively concealing an illegal fact without taking appropriate measures in accordance with his/her duties even if he/she discovers the illegal fact, whether the crime of neglecting his/her duties is separately established in addition to the preparation of a false public document and the crime of uttering

Where a public official prepares and uses a false public document for the purpose of actively concealing an illegal act without taking appropriate measures in accordance with his/her duties even though he/she discovers any illegal act, the illegal state of the breach of duty shall be deemed included in the document from the time of preparation of the false public document, and only the crime of uttering is established, and the crime of abandonment of duty, which is a crime of omission, is not established separately.

Articles 37, 122, 227, and 229 of the Criminal Act

Supreme Court Decision 82Do2210 delivered on December 28, 1982 (Gong1983, 392) Supreme Court Decision 92Do334 delivered on December 24, 1993 (Gong1994Sang, 582)

Defendant 1 and one other

Defendants

Attorney Kim Sung-sung

Daegu District Court Decision 98No1204 delivered on May 13, 1999

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

As to the preparation of false official documents, and the holding of such documents

In light of the records, the court below is just in finding that the defendants, who are police officers, conspired to commit gambling and keep a false official document for the purpose of concealing the gambling of the non-indicted, etc., and found the defendant guilty of the preparation of a false official document and the facts constituting the crime of the event. There is no violation of the rules of evidence or any misapprehension of the legal principles as to a false official document.

The ground of appeal on this point is rejected.

As to the crime of abandonment of Duties

The judgment of the court of first instance maintained by the court below, even though the defendants, who are engaged in investigation, discovered the facts of gambling committed by 18 persons, such as the non-indicted, etc., and confirmed their personal information at the time and place of the judgment, reported them immediately to the chief of the police box who is a commercial person, confiscated the money, etc., and requested by the non-indicted et al. to request the non-indicted et al. to neglect to take necessary measures for criminal investigation, such as committing gambling, and committing a criminal case, and reported them falsely to the chief of the police box to which the court below belongs, as long as he did not discover the facts of gambling, it is recognized that the crime of neglecting duties is separate from the crime of preparing false official documents and the crime of uttering, and it is treated as having the relation of the crime of preparing false official

However, if a public official finds an illegal act and prepares and uses a false public document for the purpose of actively concealing the illegal act without taking appropriate measures in accordance with his/her duties, the illegality of the breach of duty shall be included in the category from the time of preparation of the false public document, and only the preparation of the false public document, which is the crime of omission, shall be established, and the crime of abandonment of duty, which is the crime of omission, shall not be established separately (see Supreme Court Decision 92Do334, Dec. 24, 1993). Even according to the preparation of the false public document, and the criminal facts of the crime of the crime of uttering, which are found guilty by the court below, the defendants prepared and exercised the false public document, which is the official document, with the intention to avoid the gambling by the Nonindicted Party, discovered at the time and place of the judgment, so the illegality of the Defendants’ breach of duty on the part of the investigative duty shall be established since the preparation of the false public document, and the crime of abandonment of duty shall not be established separately.

Nevertheless, the court below held that the crime of abandonment of official duties in its holding is established separately from the crime of preparation of false official documents and the crime of abandonment of official duties in its holding, and treated it as having a relation of substantive concurrent crimes would be an error that affected the conclusion of the judgment due to mistake in the application of laws and regulations. This part of the appeal, including the argument, is accepted.

Therefore, the judgment of the court below which sentenced one punishment by deeming the above crimes as substantive concurrent crimes is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)