Where a public official prepares and events a false public document for the purpose of actively concealing an illegal fact without taking appropriate measures according to his/her duties even if he/she discovers the illegal fact, whether the crime of abandoning his/her duties is established separately in addition to the crime of preparing and uttering a false public document (negative)

[1] Articles 37, 122, 227, and 229 of the Criminal Act

Supreme Court Decision 70Do722 Decided May 9, 1972 (Gong1983, 392) 82Do210 Decided December 28, 1982 and Supreme Court Decision 82Do2210 Decided December 28, 1982 (Gong1983, 392) 92Do334 Decided December 24, 1993 (Gong194, 582), Supreme Court Decision 99Do2240 Decided December 24, 199 (Gong200Sang, 352)

Defendant

Defendant

Attorney Kim Jong-soo

Suwon Branch Court Decision 2002No380 decided September 5, 2002

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

1. As to the grounds of appeal Nos. 1 and 2

A. The judgment of the court below

In accordance with the first instance court's adopted evidence and evidence, although the representative director of the non-indicted corporation developed a cooling method using air without using water in the existing cooling facility at which the issue was ordered to close down the factory of the non-indicted corporation on April 7, 200, the court below acknowledged the fact that the non-indicted 3 had visited the factory to check whether the non-indicted corporation's order to close down the factory was complied with, but still operated the factory under the existing direct cooling method without changing the process, it did not take any criminal charges and administrative measures, but did not take such measures, and determined that the crime committed the non-indicted 3 was the crime of preparing a false document.

B. The judgment of this Court

(1) First of all, in light of the records, although there is no somewhat inappropriate point to find the facts of the court below, the fact that the defendant implemented the order of closure in the column for confirming the implementation of the order of closure of a business trip letter with Nonindicted 3 can be sufficiently recognized. Thus, the court below's decision as to the part concerning the preparation of a false official document is just and acceptable, and there is no violation of the rules of evidence, such as misconception of facts against the rules of evidence.

(2) However, we cannot accept the judgment of the court below on this part of the crime of abandonment of duty.

Where a public official prepares and uses a false public document for the purpose of discovering any illegality and actively concealing the fact of illegality without taking appropriate measures in accordance with his/her duties, the illegality in the course of performing his/her duties shall be deemed included therein from the time of the preparation of the false public document, and only the preparation of the false public document and the crime of uttering thereof are established, and the crime of abandonment of duties, which is a crime of omission, shall not be established separately (see, e.g., Supreme Court Decisions 722, May 9, 1972; 9Do240, Dec. 24, 199).

However, even based on the criminal facts of the crime of preparation of false official document which was found guilty by the court below, the defendant prepared a false column for confirming the implementation of the order of closure of the official document for the purpose of avoiding the non-indicted 1 corporation's non-compliance with the order of closure of wastewater discovered at the time and place. Thus, the illegality of the defendant's violation of the duties of the defendant in charge of guidance and control of wastewater discharge facilities, such as wastewater discharge facilities, constitutes only the crime of preparation of false official document as stated in the judgment that included it in the false statement from the time

Nevertheless, it is clear that the crime of abandonment of official duties in the judgment of the court below is established separately from the crime of preparation of false official documents in the judgment of the court below, which is in violation of the law due to a mistake in the application of the law.

The ground of appeal pointing this out is with merit.

2. As to the third ground for appeal

In addition, according to the selected evidence of the first instance court and the evidence in its holding, the lower court recognized the fact that Nonindicted 3 inspected Nonindicted 4’s factory and reported it to the Defendant, but, following that, Nonindicted 5, a vice-chairperson of the said company, who found himself, talked about a volume of talks with Nonindicted 3 for a time, and ordered Nonindicted 3 to withhold criminal accusation or administrative measures, and determined that such criminal facts constitute a crime of waiver of duty.

In light of the relevant statutes and the records, the court below's measures are just and acceptable, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the abandonment of duties, as otherwise alleged in the ground of appeal.

Supreme Court Decision 82Do117 delivered on June 8, 1982, etc., which was invoked as the ground of appeal, is inappropriate to be invoked in the instant case, unlike the case.

3. As to the fourth ground for appeal

In addition, according to the selected evidence of the first instance court and the evidence in its holding, the court below acknowledged the fact that the non-indicted 6, who is an employee of the intermediate plant, received an order from the non-indicted 7, the president, to deliver 500,000 won in cash to the defendant on or around June 200 to the defendant with control authority over the wastewater discharge facilities installed in the offshore plant, and that the defendant introduced the non-indicted 8 corporation in order to install the non-indicted 4 corporation's unreported water pollution prevention facilities (Fraud), thereby allowing the non-indicted 8 corporation to contract the installation work, and the non-indicted 8 corporation was in charge of the management and supervision of the facilities installed by the non-indicted 8 corporation. On August 2001, the court below accepted 50,000 won in cash from the non-indicted 9, the representative director of the non-indicted 8 corporation, and again received 280,000 won in cash from the non-indicted 9 on September 4, 2001.

In light of the records, although there is no somewhat inappropriate point to acknowledge the facts of the crime by the court below, the conclusion that each act of the defendant constitutes the crime of acceptance of bribe is just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to job relationship in the crime of bribery, as otherwise alleged in the ground of appeal.

In addition, the court below is just and correct to recognize that the defendant received a bribe in relation to his duties through Non-Indicted 10,045,000 won each from Non-Indicted 5, a vice-chairperson of Non-Indicted 4 Co. 4 Co., Ltd. around December 2000 and around September 2001, and around February 9, 2001, through Non-Indicted 10 the factory head of Non-Indicted 1 Co. 10, respectively, and to determine that the defendant received a bribe in relation to his duties, and there is no error of misconception of facts in violation of the rules of evidence or in misapprehension of the legal principles as to the relationship to duties in the crime of bribery, as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, as seen in paragraph (1) above, since the argument in the grounds of appeal on this part is well-grounded, the judgment of the court below which sentenced a single punishment by deeming each crime as a substantive concurrent crime is reversed in its entirety, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Yoon Jae-chul (Presiding Justice)