(영문) 대구지방법원 2015.2.5.선고 2014노814 판결

The part of the judgment of the court below against the defendant A and B shall be reversed. The defendant A shall be punished by imprisonment with prison labor for three months, and the defendant B shall be punished by a fine of three million won,00,000. Where the defendant B fails to pay the above fine, the above defendant shall be confined in the workhouse for the period calculated by converting 10,000 won into one day.

However, with respect to Defendant A, the execution of the above sentence shall be suspended for one year from the date this judgment became final and conclusive. Defendant B shall be ordered to pay an amount of money equivalent to the above fine. The fact of abuse of authority and obstruction of exercise of rights and obstruction of exercise of rights with respect to the issuance of a vicarious act against Defendant A and B, and the fact of missing a deceptive scheme.

All appeals filed by the prosecutor against Defendant C and D are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Although there was a fact that Defendant A (in fact-finding or misunderstanding of legal principles, and unreasonable sentencing) promoted K, Defendant A did not intend to adopt and independently decide the recommendation of the J audience Work Council and the J executives. In addition, Defendant A did not know that the introduction of a performance rating system was illegal while conducting the work performance rating for public officials at the J during the second half of 2008, and other employees did not know that it was unlawful. Accordingly, Defendant A did not know that there was no perception that it would abuse official authority and interfere with the exercise of rights by N, P, etc., and there was no perception that it interfered with the execution of duties by the Work Performance Evaluation Committee. Accordingly, Defendant A did not have any willful intention to commit the instant crime. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

Even if all facts charged against Defendant A were guilty, the Defendant merely promoted K for the purpose of boosting the morale of J-si officials, and considering all circumstances such as the background, process, result, etc. of this case, the sentence imposed by the lower court against Defendant A (two years of imprisonment with labor for a period of six months) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts as to the part not guilty against Defendant C and the part not guilty against Defendant D

In addition to the evidence submitted by the prosecutor in the original trial, Defendant D’s statement and content in the investigative agency is reliable, and all of the evidence submitted by the prosecutor in the original trial can be found guilty of all the facts charged against Defendant C and D. Nevertheless, the lower court erred by misapprehending the facts charged against the above Defendants, thereby adversely affecting the conclusion of the judgment.

2) Considering the fact that the crimes committed by Defendant A and B on the grounds of unfair sentencing with respect to Defendant A and B are not likely to be a serious crime undermining the people’s trust in relation to the exercise of personnel rights by local governments, the sentence imposed by the lower court on the said Defendants (Defendant A: 2 years of suspended execution of six months of imprisonment, and Defendant B: 5 million won of fine) is too unreasonable.

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

A. Summary of the facts charged

According to Article 30 (1) of the Decree on the Appointment of Local Public Officials, when a local administrative officer (Grade V) is appointed, he/she shall be appointed among public officials falling under the scope of promotion under attached Table 4 of the Act on the Appointment of Local Public Officials. According to Article 3 (3) of the JJ Act on the Appointment of Local Public Officials, he/she shall be designated among public officials falling under the scope of promotion on the list of candidates

Therefore, when a local administrative officer is promoted to the position of the Secretary General of the J-Si Council (local administrative officer) where one vacancy occurs on January 1, 2009, or he/she is designated to act on behalf of the Secretary General of the Council, he/she should be promoted from among public officials who are within four times the vacancy under the above provision or be designated as acting on behalf of

1) Defendant A, who was a public official of J-si, had K, support for the Defendant’s competition in the election of J-si in 2006, ordered K to the effect that, under the name of giving compensation for work performance ratings from the second half of 2006 to the first half of 2008, Defendant A, who was a public official of J-si, was promoting “K (local administrative affairs) to the Secretary General at the time of the J-si Office and M, who is the chief of the office office at the time of time at the time at the time of the presidential office of J-si, and that, if he became aware of promotion, he was instructed to the effect that the above Defendants would not be included in the [Attachment] list of candidates for promotion, and that Defendant A would not be subject to the above direction of the Secretary General at the time of the public official of K-si, who was given the above direction of promotion to the effect that Defendant B and the above direction of the Secretary General at the time of promotion to the effect that Defendant B would not be included in the (D).

As a result, Defendant A and B conspired to abuse their official authority and caused the said N to prepare a document to make the K, which is not included in the fourfolds of the vacancy, to act on behalf of the said N, and thereby to perform an act without any obligation.

2) As to the application of the performance addition system, the performance evaluation performance evaluation of abuse of authority and obstruction of another’s exercise of rights (mainly charged charge) shall be assessed fairly and reasonably by comprehensively taking account of the performance, job performance, attitude of performance, etc. of public officials subject to evaluation during the evaluation period. Article 25-2 of the former Rules on the Evaluation of Local Public Officials (amended by Ordinance of the Ministry of Public Administration and Security No. 341, Jan. 18, 2013) provides that where the outstanding performance performance is recognized during the evaluation period, additional points of performance may be given within five points. Article 25-2 of the former Rules on the Evaluation of Local Public Officials (amended by Ordinance of the Ministry of Public Administration and Security No. 341

Nevertheless, on January 1, 2009, Defendant A instructed Defendant B to the effect that “K may be included within four times of promotion” to promote K in the above J market office, and Defendant B instructed Defendant B to the effect that “K shall be included in the above 0-mentioned office within four times of promotion.” The Defendants instructed Defendant B to the effect that “the above 0-mentioned office shall be included within four times of promotion” and “the measures to be taken to be promoted at the beginning of the second month” shall be included in the above 0-mentioned office. The Defendants agreed to include the above 0-party executive officers and personnel management officials within four times of promotion of K in the above J market office, who are working professionals, to include the above 10-party executive officers in the above 20-party list within 0-party 10-party 20-party 28-party 20-party 20-party 20-party 10-party 28-party 20-party 20-party 28-party 20-party 2.

3) Performance of official duties by fraudulent means

On January 30, 2009, Defendant A and B, like the above paragraph (2) of the above paragraph, submitted the evaluation of performance points illegally assigned to K, and the evaluation of performance performance records based on the illegal order of priority, to work performance evaluation members including Q, including the chairman of the Work Performance Evaluation Committee, to the work performance evaluation members. Defendant A and B made a mistake that the above work performance evaluation table was properly prepared, and decided as the original design.

As a result, Defendant A and B conspired with each other and interfered with the execution of duties relating to the work performance evaluation decision of class 5 administrative officials at the time of the work performance rating committee.However, the judgment of the court below

In full view of the evidence submitted by the prosecutor such as witness P, N, M, andO’s respective statutory statements, Defendant A’s reply to the Board of Audit and Inspection (Evidence No. 1369), Defendant B’s authentic statement, Defendant B’s notice of assignment of public officials, and instruction for processing of J trial performance points, the lower court found the Defendants guilty of all the charges under paragraph (1) of the judgment against the above Defendants, on the ground that each act described in paragraphs (a) and (b) of Article 1 of the Criminal facts in the judgment of the lower court by Defendant A and B was committed in violation of the statutes governing the application of acting as a subordinate employee and performance points. In order to achieve the objective of the above Defendants, the lower court determined that the Defendants committed an erroneous act or disposition with regard to the lawful duties of the Commission granted by the law by causing mistake, mistake, and land to be committed, and that the said Defendants’ act constitutes obstruction of the performance of official duties by abuse of official authority, obstruction of rights, and deceptive means.

C. Judgment of the court below

1) Determination as to Article 1-1(A) of the Criminal facts in the holding of the court below (the point of abuse of authority and obstruction of exercise of rights in relation to the

In relation to the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “when one has another person perform an act without any obligation” means when one has another person perform a non-obligatory act. Therefore, even if a public official had a person in charge of business to assist the performance of his/her duties with respect to matters belonging to his/her official authority and authority, this is only a result of the public official’s performance of duties, and thus, in principle, it cannot be deemed “when one has had another perform a non-obligatory act” in the crime of abusing authority and obstructing another’s exercise of rights. However, if the standards and procedures for performing his/her duties specifically stated in the Acts and subordinate statutes and the standards and procedures for performing his/her duties are applied and the person in charge of business has been granted a unique authority and role to participate in the procedure, the said person in charge shall be deemed to fall under “when having another person assist the performance of duties in violation of such standards and procedures.”

However, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① the power to appoint public officials belonging to the J-si to the Mayor, and the power to issue acting for public officials belonging to the J-si exclusively within the J-si to the J-si, ② it is clear that Defendant A’s disposition of issuing K as acting for the Secretary General of the Council secretariat is unlawful in violation of the relevant Acts and subordinate statutes. However, there is no evidence to deem that Defendant A was given the unique authority and role in the standards and procedures for issuing a specific duty to the Director General or the Director General in charge of personnel affairs in relation to the issuance of acting for the K-si. ③ In preparing the same document, it is difficult to view that the Defendants’ act of having a public official in charge of personnel affairs merely interfere with the issuance of a public official’s personnel notice (which is evidence record, 689, 690 pages) and the official in charge of personnel affairs, and thus, it is difficult to view that the Defendants’ act did not constitute an unlawful act of preparing a document or a document.

Therefore, the evidence presented by the prosecutor alone cannot be deemed to have been proven without any reasonable doubt, and there is no other sufficient evidence to acknowledge this portion of the facts charged. Nevertheless, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) The judgment of the court below as to the primary charge of the crime No. 1-B (the abuse of authority and obstruction of exercise of rights in relation to the application of the performance addition system)

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction shall be based on the evidence of probative value, which leads to the judge to have the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant should be determined (see, e.g., Supreme Court Decision 2010Do9633, Nov. 11, 2010).

Criminal intent as a subjective constituent element of a crime under Article 123 of the Criminal Code interferes with the exercise of rights (see, e.g., Supreme Court Order 92Mo29, Jul. 26, 1993).

Examining this part of the facts charged, in order to include K in collusion with Defendant A and B in four times on the list of candidates for promotion where it is possible to promote K, the P made him prepare a provision of "Guidelines for Treatment of Additional Points at J Time" on January 13, 2009, and in violation of Article 125-2 (2) of the Local Public Officials Evaluation Rules, the above guidelines are applied retroactively to the period of evaluation subject to evaluation in the latter part of 2008, which is not open to the public official subject to evaluation, so that K will give him points of performance points retroactively to the period of evaluation subject to evaluation in the latter part of 2008, and eventually K will be the fourth level on January 30, 2009.

In order to find a guilty of this part of the facts charged, Defendant A and B knew that it was illegal to apply the above J's performance added disposition guidelines retroactively, and it should be recognized that Defendant A and B had P implement the above performance added disposition guidelines retroactively with knowledge of such fact.

However, even when examining the contents of Defendant A and B’s legal statement or the contents of each legal statement in P, N, M, and0 of the lower court’s witness P, N, and 0, even if examining the contents of each of the above legal statements, all of the M,0, and B, who were the personnel-level P, N, and personnel management directors, were not aware that it was unlawful to retroactively apply the above JJ performance guidelines. The above evidence was stated to the effect that the audit conducted by the Board of Audit and Inspection, which was conducted by the Board of Audit and Inspection, became aware that it was illegal

Next, even if the contents of each police statement on N (Evidence No. 819, 842), P (Evidence No. 809), and M (Evidence No. 830) are examined, the statement to the effect that “K is issued on behalf of proxy and Defendant A was reported to this effect.” Defendant A instructed K to include K in four times on the promotion candidate list, thereby introducing the additional points system, and only K was made within four times due to the additional points of performance, and that it is illegal to apply the additional points system retroactively from the Board of Audit and Inspection.” However, there is no statement to the effect that Defendant A or competent public officials knew that it is illegal to apply the additional points retroactively at the time of the introduction of the additional points system.

Each police statement about 0 states that "K was not implemented as prescribed by the regulations because it was about to be included in four times the statement," and that "the defendant A and B was responsible for the A market without any low-level inclusion in K in four times the statement," but it is insufficient to support the fact that the above statement of 00 stated that it was unlawful to retroactively apply the additional points system, and that it was reported to the defendant A and B, when considering the fact that it was investigated by the police, and that it was impossible to confirm its contents because the documents prepared by the defendant A were not submitted, it is insufficient to support that the above statement of 00 knew that it was unlawful to retroactively apply the additional points system, and that it was reported to the defendant A and B.

However, according to the J's Guidelines for Handling Additional Points (see, e.g., evidence records) stated in the summary of the above documents that "the method of reflecting the above performance points in the list of candidates for promotion", and written below "the disclosure prior to the commencement of the evaluation period (Article 25-2 of the Local Public Officials Rating Rules): Defendant A and B approved the above documents. However, even if the above documents were to be assessed on January 2008 in the second half of the year 200, the above documents did not contain the above guidelines to newly introduce the additional points in order to include K in the promotion candidates for promotion of four times which can be promoted in the second half of the year 2008, the above guidelines should not be applied to the above documents. Thus, even if according to the guidelines, if the above additional points system could not be applied to the second half of the year 2008, the above guidelines for evaluating the performance points should not be applied to the public official prior to the commencement of the evaluation period, the above guidelines should not be applied.

In addition, even in the content of Defendant B’s authentic statement (see, e.g., 1118 of the evidence record), considering that “the personnel department did not comply with the provisions of the personnel department while implementing the performance addition system, and obtained approval from the market owner, and displayed it to the head of the personnel department.” In addition, the market owner knows that there was a performance addition system, and the personnel department knew of the fact that there was a fact that there was a other Si/Gun, and that the content of promotion would be promoted even if using the performance addition system, at the audit and inspection by the Board of Audit and Inspection, is included in the answer at the audit of the Board of Audit and Inspection, it is difficult to support the Defendant A by taking into account that Defendant B’s investigation was conducted by the police, stating that “it is true that the specific content that is not known to the extent that there is a problem (Evidence points system)” (Evidence point 891 of the evidence record) and that it is not possible to confirm its content since there was no document prepared by Defendant A, it is insufficient to support the Defendant B’s application of the performance addition system retroactively.

In addition, even if Defendant A’s written reply of the Board of Audit and Inspection (see, e.g., 1369 of the evidence records), it is difficult to support that Defendant A was aware of the fact that: (a) even if examining the content of Defendant A’s written reply of the Board of Audit and Inspection (see, e.g., Supreme Court Decision 1369 of the Ministry of Audit and Inspection), it stated that “K is included in the promotion multiple system; (b) it is recognized that it was not in compliance with legitimate procedures while applying the performance additional points system; (c) it is merely a starting point to introduce the performance additional points system to promote K; and (d) it is illegal to apply the performance additional points system retroactively. Therefore, the evidence submitted by the Prosecutor alone is difficult to deem that this part of the facts charged were proven without reasonable doubt; and (d) there is no other sufficient evidence to acknowledge this portion of the facts charged. Nevertheless, the court below erred

3) Determination as to Article 1-3 of the Criminal facts of the judgment below (the point of obstruction of performance of official duties by fraudulent means)

The crime of obstruction of performance of official duties by fraudulent means shall cause mistake, mistake, or land to the other party in order to achieve the purpose of the act, and the proper duties of the public official delegated by Acts and subordinate statutes.

As to the wrong act or disposition, it is established (see, e.g., Supreme Court Decision 2000Do4993, Oct. 9, 2003).

However, even if all records are examined, data, etc. used as the basis for the application of the performance points system were fabricated, or the list by the evaluation unit submitted by each country was operated.Based on the circumstance or its reasoning, there is no circumstance to deem that the list by the evaluation unit prepared by the J-si General Personnel Management Department was prepared differently from the list by the evaluation unit, which is the basic data, but only it appears that it is against Article 125-2 (2) of the Local Public Officials' Rating Regulations to grant K, etc. additional points by retroactively applying the J-si performance points treatment guidelines during the period subject to the evaluation in the latter half of 208.

Examining the contents of the J-si's Guidelines for Handling Points (Evidence 694) the general affairs division has to review the application for the points of performance and to decide whether to grant the points of performance in the committee as an agenda item. However, since it is necessary to determine whether to grant the points of performance in the committee, it is the work that the work performance evaluation committee should have conducted an examination and evaluation by the work performance evaluation committee, it is illegal to apply the J-si's guidelines retroactively to the work that the work performance evaluation committee should have conducted an examination and evaluation by the work performance evaluation committee. The Work Performance Evaluation Committee should have deliberated on the provisions such as the rules of evaluation of local public officials, but it is difficult to view that the work of the Work Performance Evaluation Committee was obstructed by Defendant A and B's fraudulent means.

Furthermore, it is difficult to recognize that Defendant A and B had been aware of the illegality of retroactively applying the performance addition system as seen in the foregoing 2). Therefore, it is difficult to deem that Defendant A and B had the intention of deceptive scheme.

3. Ex officio determination (Judgment on the crime No. 1 of the judgment of the court below against Defendant B)

As examined earlier, since Article 1-A, B (HA), and B of the judgment of the court below against Defendant A constitute a case where there is no proof of a crime, the relevant part of the facts charged against Defendant B constitutes a case where there is no proof of a crime. Nevertheless, the court below found Defendant B guilty of this part of the facts charged. Thus, the court below erred by misapprehending the facts and affecting the conclusion of the judgment.

4. Judgment on the ancillary facts charged (the facts charged as stated in the judgment of the court below)

The prosecutor added the ancillary facts charged to the defendant A and B in the trial, and then examines them.

A. The summary of the facts charged in the preliminary charge (the abuse of authority and obstruction of performance related to the application of the performance rating system) is to evaluate the performance of public officials subject to evaluation in a fair and reasonable manner by comprehensively taking into account their work performance, job performance, attitude of performance, etc. during the period of evaluation. The rule of evaluation of local public officials requires the Work Performance Evaluation Committee to examine and determine the priority and rating point of the public officials subject to evaluation based on the above order list, and the person who has the authority to appoint the work Performance Evaluation Committee shall not participate in the evaluation. On January 1, 2009, Defendant A, with the knowledge that the performance rating is not included in the scope of promotion (including four times higher of the vacancy) of the secretary general of the Council at J-si, and ordered Defendant B and the person in charge of personnel management to include the above order within the scope of 20 times as the total service performance rating point within the scope of 10 times as the first half of the year of evaluation of the public officials subject to evaluation, and to the effect that Defendant B and the above order to include the above order to be included in the first 20.

Accordingly, on January 30, 2009, K granted the additional points of performance to K by applying it retroactively to the period subject to evaluation in the second half of 2008 ( July 1, 2008, between 2008 and December 21, 2008), which was prior to the enforcement of the above guidelines for processing points of performance points, and on January 30, 2009, K became the fourth grade on the list of candidates for promotion.

As a result, Defendant A and B conspired to abuse their official authority to cause the P to perform an act that is not obligated to do so.

B. Determination

Examining the Local Public Officials Act, the Decree on the Appointment of Local Public Officials, and the Rules on the Evaluation of Local Public Officials, the person who has the authority to appoint and confirm with respect to the performance rating of local public officials shall be divided, and the procedure and method of the evaluation, disclosure of the results of the evaluation, and objection methods shall be specifically prescribed. The legislative intent of the above provisions is to ensure that the performance rating of local public officials is conducted in an objective, fair and reasonable manner. As such, the person who is the authority to appoint local public officials who are not the authority to evaluate or confirm and is in the position to direct and supervise the personnel management, etc. of local public officials under his/her jurisdiction, and the person who assists in the personnel management of local public officials, who is the authority to appoint local public officials and who are not the authority to appoint local

According to the evidence duly admitted and examined by the court below, even if Defendant B, the chief of J market, who is not the person with the authority to evaluate and confirm the public officials of 0, is in the position to direct and supervise the public officials of the local government with general authority concerning personnel management, assist Defendant B, the chief of J-si, who is the chief of J-si, in overall affairs concerning personnel management, was aware of the fact that it is not included in the scope of promotion (including four times the vacancy) of the Secretary General at J-si, even if he grants the highest points of evaluation to K in relation to the evaluation in the second half of 2008, the defendant A, who is not the person with the authority to evaluate and confirm the public officials of 40, ordered Defendant B to the effect that the above public officials of K, who are the chief of K in charge of personnel management, should be included in the scope of promotion (including the four times of the vacancy) of the Secretary General at J-si, and the above fact that the above public officials of J-si, who were ordered to be included in the P 1).

According to the above facts of recognition, Defendant A and B are deemed to have engaged in a false doping to exercise their official authority so that they committed a substantial, specific and unfair act, and thus constitutes abuse of official authority. As such, Defendant A and B may be convicted of all the charges added in the first instance trial.

5. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of the facts charged

1) Defendant C’s abuse of authority and obstruction of another’s exercise of rights are entitled to assist the J market, which is the personnel management authority for the public officials belonging to J-si, while working as the general secretary of the support center for residents’ living in J-si from January 3, 201 to February 27, 2011, and D took charge of performance rating duties in the personnel community.

According to the rules of the evaluation of local public officials and the guidelines for evaluating duties of local public officials, etc., where the service is assessed in each of the departments under J-si, Eup, Myeon, and Dong and sending it to each of the departments, each of the respective countries shall not change the order of service, and as in the general affairs, the order of the evaluation unit list prepared and submitted in each of the countries shall not be changed. Likewise, as in the general affairs department, the person subject to the evaluation of the work performance rating committee shall not be able to adjust the order of service among the public officials of the same group subject to the evaluation, except in cases where the person subject to the evaluation is accepted an objection by the evaluation of the evaluation results of the work performance rating committee, and the evaluation results are changed. Therefore, if the person subject to the evaluation prepares a work performance rating list to determine the order of service performance by class of the entire public officials of the J-si based on the list of the evaluation units submitted to the general affairs department and personnel affairs, the person subject to the evaluation shall not arbitrarily change the order list and re-preparation the evaluation unit list by the evaluation unit.

Defendant C was well aware on January 201, 201 that, on the list of candidates for promotion of Grade 6 in the entire administration of J-si, Defendant C could not arbitrarily change the list of candidates for promotion of Grade 6 in its rank and that, in each of the departments or countries, Defendant C could not arbitrarily change the list of candidates for promotion of Grade 6 in its rank.

Nevertheless, on January 2, 2011, Defendant C issued a letter of credit rating to the head of J-si General Affairs and personnel management division, who was in charge of the work performance rating at the time of the above work performance rating. In order to make Defendant C as the first in the order of priority on the promotion candidate list, Defendant C, on January 22, 2011, determined the order of priority on the work performance rating for all Grade VI public officials of J-si at the personnel management division office of J-si General Affairs and personnel management division D, who is in charge of the work performance rating, changed the list of letter of credit rating by unit of credit rating to Grade 1 R, Grade 2 S, and Grade 2 S, and changed the list of letter of credit rating by unit of credit rating to Grade 1 S and Grade 2.

Accordingly, Defendant C abused official authority and caused the said D to perform an act that is not obligated to do so.

2) Defendant C and Defendant D’s obstruction of performance of official duties in collusion with Defendant D on January 1, 201, and submitted a performance rating table (Grade 6) which was formulated in violation of the Local Public Officials’ Rating Regulations, as seen in the above paragraph (1) by submitting the performance rating table (Grade 6), including the chairman of the Work Performance Evaluation Board T, to the work performance rating members including the chairman of the work performance rating committee. The above performance rating table was prepared and submitted for the first time in the Saemaul sports division, and decided to review it as the original design on January 31, 201. Accordingly, Defendant C and D interfered with the performance of duties relating to the work performance rating examination decision of the work performance rating of Grade 6 public officials of Grade B, B, U,V, and W by deceptive means.

B. The judgment of the court below

The lower court determined that it was difficult to believe that Defendant D’s testimony and the statement made by the investigative agency, which is the main evidence of this part of the facts charged, in light of various circumstances, was difficult. Moreover, it is insufficient to recognize that Defendant C’s remaining evidence submitted by the prosecutor that Defendant C abused its official authority and caused Defendant C to change the heat of R, etc., and it is insufficient to recognize that Defendant C conspired with Defendant D to submit the said list, knowing that the list was changed from the Saemaeul Sports Department, and that it was insufficient to recognize that Defendant C submitted the said list in collusion with Defendant D. In addition, this part of the facts charged was acquitted.

C. Judgment of the court below

In light of the evidence duly adopted and examined by the court below and the evidence additionally examined in the trial court, it is reasonable that the court below sentenced Defendant C not guilty and acquitted Defendant D on the grounds as stated in its reasoning, and there is no error of misunderstanding of facts as alleged by the public prosecutor, and there is no error of law as otherwise alleged by the public prosecutor.

6. Conclusion

Therefore, there is reasonable ground for misunderstanding of facts or misunderstanding of legal principles as to the facts charged by Defendant A in the judgment of the court below, and there is a ground for reversal of facts as to Defendant B in the judgment of the court below, but the prosecutor's additional charges are found guilty as to Defendant A and the prosecutor's each assertion of unfair sentencing. Thus, the part of the judgment of the court below as to Defendant A and B in the judgment of the court below is reversed and it is again decided as follows through pleading pursuant to Article 364

In addition, since the prosecutor's argument of mistake of facts against the defendant C and D is without merit, all appeals filed by the prosecutor against the defendant C and D pursuant to Article 364 (4) of the Criminal Procedure Act are dismissed.

【Judgment made again against Defendant A and B] The actual performance rating of a crime is to be assessed fairly and reasonably by comprehensively taking into account the service performance, job performance, attitude of performance, etc. of a public official subject to the rating during the period of evaluation. The Local Public Officials' Evaluation Rules provide that when an appraiser and a confirmation person prepare a comprehensive evaluation unit list of the evaluation unit of the public official subject to the rating and submit it to the Work Performance Evaluation Committee, the order and evaluation point of the public official subject to the rating shall be determined based on the above group list at the Work Performance Evaluation Committee, and the person who has the authority to appoint shall not participate in the evaluation. Defendant A, while being aware that it is not included in the scope of promotion (including four times of the vacancy) of the secretary general of the Council in the above J market office at the early police officer of the J market, he ordered Defendant B and the general secretary of the personnel management division to promote the above K within four times of the evaluation unit of the public official subject to the rating, he may include Defendant B's order to include the above two times in the first half and second half of the Council office.

Defendant A and B, who received such orders, had P in charge of the general affairs department of J-si and personnel affairs P to be included within four times as much as possible to promote K, based on the Local Public Officials' Rating Regulations of Article 25-2 (where the appointing authority recognizes outstanding service performance during the period subject to evaluation, it may grant additional service points within five points), Defendant A and B drafted the "Guidelines for Handling the Points for the Points of the J-si Performance Points" as of January 13, 2009, and granted the above PO additional service points by applying the above guidelines for handling the additional service points to K's rating points.

Accordingly, the above P, on January 30, 2009, issued the performance points to K by applying the evaluation target period of the second half of 2008 ( July 1, 2008), which was prior to its enforcement, retroactively to the evaluation target period of the above performance points, and the evaluation point of K would be 70, the highest point and the evaluation point of K would be 4 in the list of candidates for promotion.

As a result, Defendant A and B conspired to abuse their official authority to cause the P to perform an act that is not obligated to do so.

Summary of Evidence

1. The respective legal statements of the defendant A and B 1. The witness P, N, M, and0 each legal statement of the defendant A and B (the defendant A)

1. Each police statement of P, N, M, orO;

1. Defendant A’s reply by the Board of Audit and Inspection

1. A criminal investigation report (B or a petition) and a petition;

1. Notice of personnel appointment of public officials;

1. Guidelines for handling additional points in J's J results;

Application of Statutes

1. Relevant legal provisions concerning criminal facts;

○ Defendant A and B: Articles 123 and 30 of the Criminal Code

1. Selection of punishment;

Imprisonment with prison labor and fines against Defendant A

1. Detention in a workhouse;

Defendant B: Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act (Considering circumstances favorable to Defendant A below)

1. Order of provisional payment;

Defendant B: The reason for sentencing under Article 334(1) of the Criminal Procedure Act: Defendant A, as the head of a local government, abused personnel rights by allowing the head of a local government to introduce a new rating system for the purpose of promoting a person to be promoted, and accordingly changing the order of priority on the promotion candidates list for specific public officials. Accordingly, Defendant A had a public official in charge perform an act for which he was not obligated to perform. Defendant A committed the instant crime on the ground that he continued to lower the performance rating of K on the ground that he supported the other candidate after he was admitted from his election, and ordered the public official in charge to continuously lower the performance rating of K on the ground that he did not support the other candidate, which was late. This is a crime detrimental to the foundation of the professional public official system or the sound local autonomy system. Nevertheless, it is not good that the Defendant continues to assume responsibility for his subordinate employees, or for the purport that he did not accept recommendations from the workplace consultative body. This is unfavorable to the Defendant A. However, the circumstances that the Defendant did not have any undue interest in the instant crime are determined by a fine exceeding the aforementioned circumstances.

Defendant B: The fact that the instant crime was committed in the course of following the instructions of Defendant A, the head of the local government, and the fact that there was no criminal record is favorable to Defendant B. In full view of the above circumstances and all other records and arguments, the sentence against Defendant B shall be determined as ordered by the order.

The summary of the facts charged against the defendant A and B is as stated in the judgment of the court below 2. A. This constitutes a case where there is no proof of a crime for the same reason as described in the above 2.C. and thus, the defendant was acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act: Provided, That the facts charged as stated in Article 2. A. 2-2 of the Criminal Procedure Act are found guilty of a crime of abusing the right to exercise the right related to the application of the performance points system as stated in the judgment of the preliminary facts charged