[1] Whether the defendant has the right to appeal against the lower court judgment that was not disadvantageous to the defendant (negative)

[2] The meaning of "defensive means" in the crime of obstruction of performance of official duties by fraudulent means, and in a case where it does not reach the point of obstructing or making it practically difficult, whether the crime of obstruction of performance of official duties by fraudulent means may be punished (negative)

[3] Whether an unlawful act committed by a public official in charge under the public invitation or understanding of all public officials constitutes a fraudulent act of obstructing official duties through a deceptive scheme (negative)

[1] Articles 338, 357, and 371 of the Criminal Procedure Act / [2] Article 137 of the Criminal Act / [3] Article 137 of the Criminal Act

[1] Supreme Court Decision 2005Do4866 Decided September 15, 2005, Supreme Court Decision 2013Do5752 Decided October 24, 2013 / [2] Supreme Court Decision 2002Do4293 Decided February 11, 2003 (Gong2003Sang, 847), Supreme Court Decision 2007Do1554 Decided April 23, 2009 (Gong2009Sang, 781) / [3] Supreme Court Decision 2005Do6404 Decided December 27, 2007 (Gong2008Sang, 167)

Defendant 1 and four others

Defendant 2 and one other and the prosecutor

Attorney O Jae-at-law

Changwon District Court Decision 2013No1340 decided October 10, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the appeal by Defendant 2 and Defendant 3

The essence of an appeal for a defendant is to file an appeal against a judgment by a lower court, which is an objection against a judgment by a lower court and is to correct a unfavorable judgment against a defendant, and thus, the defendant cannot have the right to file an appeal unless the judgment by a lower court is disadvantageous to a defendant (see Supreme Court Decision 2005Do4866, Sept. 15, 2005).

According to the records, with respect to the judgment of the first instance that sentenced the above Defendants to a fine, the said Defendants did not file an appeal, and only the prosecutor appealed on the ground of unfair sentencing. However, the lower court ex officio rendered a fine more minor than the judgment of the first instance when determining not guilty of the obstruction of the performance of justice by deceptive scheme among the facts charged in the instant case against the said Defendants, and thus, the judgment of the lower court cannot be deemed to be disadvantageous to the said Defendants. Accordingly, the said Defendants cannot have the right to

2. As to the Prosecutor’s Grounds of Appeal

A. As to Defendant 1

In the crime of obstruction of performance of official duties by fraudulent means, “defensive means” means causing mistake, mistake, or land to the other party in order to achieve the purpose of the actor’s act, causing mistake, mistake, or land, and the other party’s wrong act or disposition accordingly is established. If such an act does not reach the extent that it prevents or makes it impracticable to do so, it may not be punished as the crime of obstruction of performance of official duties by fraudulent means (see Supreme Court Decision 2007Do1554, Apr. 23, 2009).

After finding the facts as stated in its reasoning, the lower court acquitted Defendant 1 on the ground that: (a) merely notifying Nonindicted 1 and Nonindicted 2 of the list of evaluators, it does not constitute a deceptive scheme in the crime of obstruction of performance of official duties by deceptive means; and (b) it is difficult for the Organizing Committee of the Foundation of this case to deem that it committed a wrong act or disposition following the above Defendant’s above act; (c) on the ground that there was no proof of a crime of obstruction of official duties by deceptive scheme among the charges

Examining the record in accordance with the above legal principles, the above determination by the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the

B. As to Defendant 2, Defendant 3, Defendant 4, and Defendant 5

(1) As seen earlier, in the crime of obstruction of performance of official duties by deceptive means, the term “defensive means” means causing mistake to the public official in charge of the other party in order to achieve the purpose of the actor’s act. Therefore, in the event that an unlawful act was committed under the conspiracy or understanding by all the public officials in charge, it cannot be said that there was another party causing mistake, etc., due to this. Thus, such an act cannot be deemed as a deceptive scheme in the crime of obstruction of official duties by deceptive means (see Supreme Court Decision 2005Do6404, Dec. 27, 2007).

(2) The lower court acknowledged the facts as indicated in its reasoning and determined as follows.

Defendant 3, Defendant 4, and Defendant 5, the person in charge of the business of producing stage and concluding a contract for exhibition and departure service, who are the parties to the establishment of the organizing committee of the instant foundation, voluntarily divide the said services into a negotiated contract, are the result of the full-time decision-making after Defendant 2, the person in charge of the execution of the said service contract, according to the direction of Defendant 1, who is the chairman of the execution committee, and it does not result in the misunderstanding, mistake, and the site. In addition, if Defendant 2 and Defendant 3, who is the person in charge of the execution of the said service contract, conspired with each other according to the direction of Defendant 1, who is the chairman of the execution committee, committed the said act, he cannot be deemed to have caused mistake, mistake, or the site to the conclusion of the said service contract. Accordingly, the said Defendants’ above act does not constitute a deceptive scheme in the crime of obstruction of the performance of official duties by deceptive means.

(3) Examining the records in accordance with the aforementioned legal principles, the lower court’s aforementioned determination is justifiable. As seen earlier, Defendant 2, the person with authority to decide on the above service contract, as recognized by the lower court, conspired with all of the persons in charge of the pertinent service contract, and thus, the instant foundation or the chairperson of the organizing committee cannot be deemed a public official who is the counterpart to deceptive scheme. Therefore, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation

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 Lee Sang-hoon (Presiding Justice)