207Do9481 A. Abuse of official authority and obstruction of another’s exercise of rights

(b) Abandonment of duties;

C -, E

Gangwon-do Housing IT LED DENT

Gangseo-si in the original registration place

Defendant and Prosecutor

Law Firm

Attorney Kim Do-D, this case, leap, and oil

Law Firm PE,

Attorney Kim I, II, Kim Jong, OUT, Jeon Soo, Dog, and Power

Seoul High Court Decision 2007No1093 Decided October 19, 2007

April 9, 2009

All appeals are dismissed.

We examine the grounds of appeal.

1. Judgment on the Defendant’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

Despite the so-called crime of abandonment of duties is established by failing to perform the duty under the awareness that such duty is to be performed specifically as a crime of omission (see, e.g., Supreme Court Decision 82Do3065, Mar. 22, 1983). The crime of abandonment of duties is not established in all cases where a public official neglects the duty of abstract loyalty by statutes, internal rules, etc. without justifiable grounds, but is established only in cases where a public official interferes with the State's function and causes damage to the people, and where there is a specific risk of causing damage to the people, and the degree of illegal and liability is high. Thus, the crime of abandonment of duties is not established if a public official fails to perform his/her duty faithfully due to neglect, negligence, care, etc., or failure to perform his/her duty faithfully, or if he/she performs his/her duty faithfully with the intention of performing his/her duty formally or negligently. In addition, if he/she performs his/her duty in any form, it is deemed unlawful.

The court below acknowledged the facts as stated in its judgment based on the evidence duly admitted, and judged that the defendant's act of neglecting duty in this case can be found guilty in full. In light of the above legal principles and records, the selection of evidence in the court below's above and the fact-finding and decision can be justified and acceptable, and there is no error of law such as misconception of facts or incomplete hearing due to violation of the rules of evidence, prosecutor's right to command investigation and the crime of neglecting duty, as argued in the Grounds for Appeal.

2. Judgment on the grounds of appeal by the prosecutor

The crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act refers to obstructing the legitimate exercise of the right that can be exercised by law. Thus, in order to constitute such crime, the real exercise of the right that has been embodied should be interfered with. Moreover, even if a public official’s abuse of rights did not result in the actual interference with the exercise of the right, the acceptance of this crime cannot be recognized unless the result of the interference with the exercise of the right actually occurred (see Supreme Court Decisions 2003Do4599, Feb. 9, 2006; 86Mo12, Jun. 30, 1986).

In light of the above legal principles and records, the court below found the defendant not guilty of the abuse of authority and obstruction of another's exercise of another's exercise of another's exercise of another's exercise of another's exercise of one's exercise of one's exercise of another's exercise of one's exercise of another's exercise of one's exercise of one's right at the time of ○○ Police Station's custody room, Kim○'s employee, etc., in relation to Paragraph (2) of the facts charged in this case, based on the evidence duly admitted, the court below found the facts as stated in its reasoning. In light of the above legal principles and records, the court below's selection of evidence and the

3. Conclusion

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

Justices Shin Young-chul

Justices Park Si-hwan

Justices Park Poe-young

Justices Ahn Dai-hee