[1] Meaning of the crime of obstruction of performance of official duties by fraudulent means, and whether the above crime is established only when the other party commits a false act or disposition by deceptive means (affirmative)

[2] In a case where Defendants, etc., a member of a specific political party, were indicted on charges of obstructing the execution of official duties in relation to the Defendant’s secret and secret ballot management by deceptive means by making a written agreement to leave the chairman of the local council in front of the election of the chairman of the local council, to “A” and to secure its implementation by setting up virtual partitionss on the ballot papers and making oral agreements to determine the locations to be put by each member in advance, and then, the Speaker pro tempore pro tempore who is aware of the fact that he was indicted of obstructing the Defendants from carrying out his official duties in relation to the Defendant’s secret and secret ballot management by making the Defendants elected to the chairman by deceptive means, the case holding that the judgment below convicting the Defendants on charges of obstruction of performance of official duties by deceptive means erred by misapprehending the outcome of deceptive means, the result of obstruction of official duties, and legal principles

[1] In the crime of obstruction of performance of official duties by fraudulent means, a deceptive scheme means causing mistake, mistake, and land to the other party in order to achieve the purpose of the actor's act, causing mistake, perception, and land, and the other party's wrong act or disposition accordingly is established. If the crime committed is committed without falling short of the specific suspension of performance of official duties or making it practically difficult, it cannot be punished as the crime of obstruction of performance of official duties by fraudulent means.

[2] In a case where Defendants, a specific political party member, etc. were indicted on charges of obstructing the execution of official duties of voting by deceptive means by having the chairman of the local council in front of the election of the chairman of the local council, having written agreements to see A as the chairman, having the ballot papers set up in order to secure the implementation thereof, and having conspired to open the election by means of a verbal agreement to determine the locations for each council member, and having them open to the public, and the Speaker pro tempore who is unaware of the fact that Party B, who cast his vote through a prior public recruitment, participated in the election of the chairman by having him elected, the case holding that Article 48(1) of the Local Autonomy Act provides that the chairman of the local council shall be elected by secret ballot, but there is no separate provision punishing the act of violation, and thus, it cannot be evaluated that the Defendants’ act of obstructing the execution of official duties of the local council, on the ground that there is no other reason that there is no evidence that the above Defendants’ act violates the principle of secret election (the principle of secret voting), or that it is difficult to open to the contents of voting after the voting.

[1] Article 137 of the Criminal Act / [2] Articles 13, 30, and 137 of the Criminal Act; Article 48 (1) of the Local Autonomy Act (wholly amended by Act No. 17893, Jan. 12, 2021); Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2002Do4293 Decided February 11, 2003 (Gong2003Sang, 847) Supreme Court Decision 2017Do2583 Decided April 27, 2017

Defendant 1 and four others

Defendants

Attorney Doh-ho

Busan District Court Decision 2018No1870 Decided November 8, 2018

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. The facts charged in this case

The Defendants and Co-defendant 3, Co-defendant 6, Co-defendant 3, Co-defendant 4, Co-defendant 4, and Non-Indicted 1 and 10 (hereinafter collectively referred to as "defendants, etc.") were members of Busan Metropolitan City △△△△△ Office, which belongs to the name of the political party at the time of 2014.

On July 6, 2014, the Defendant, etc. agreed to gather the post office of △△△△ in the election district office of the National Assembly member of the Gu (hereinafter “instant election”), which was the chairman of the △△△ Council (hereinafter “instant election”), to “Co-Defendant 4 of the first instance court, who was from the election district of △△△△△ Gu as the chairman of the 7th overall election period, and Nonindicted Party 1, who was from the election district of △△△△ Gu, as the latter chairman, respectively.”

Defendant et al. prepared the contents of the agreement in writing, set up a temporary partition on the ballot paper in order to secure the implementation of the agreement, set the location to record it in advance by each member of the National Assembly, and, if there is any National Assembly member who did not vote according to the agreement, openly recruited the election of the Speaker to be carried out by a secret vote by making it possible to confirm who is later.

Defendant et al., at the plenary session of the △△△ Council on July 8, 2014, Nonindicted 2 was the Speaker pro tempore who is the largest of the △△△△ Council, and Defendant 1 and Nonindicted 3 of the first instance trial were the co-defendant 3 as a ballot-counting member, and Defendant 4 was elected as the Speaker in the process of the instant election.

As such, the Defendants interfered with Nonindicted 2’s execution of duties regarding the secret management of Nonindicted 2, the Speaker pro tempore △△△△ Council, by deceptive means.

2. The judgment of the court below

A. The first instance court accepted the facts charged of this case and pronounced guilty against the defendant, etc., and rejected the defendant, etc.'s assertion (a fact that the defendant, etc. agreed on the election of this case, but it is not necessary for co-defendant 4 to put a mark on the specified location to prevent the escape slip by leaving the court of first instance alone, and in real voting, it did not implement the above contents of the agreement) for the following reasons.

① In the election of this case, Co-Defendant 4 of the first instance trial opened the vote alone, but there was a need to prevent the escape ticket still for the majority of votes. ② Even if the Defendant, etc. puts the mark in fact, seven persons are clearly marked in different folds of the ballot paper, and three persons are also marked in the ballot paper, and it is possible to distinguish them by taking into account the location of the

B. The court below affirmed the judgment of the first instance court as just and upheld the judgment of the first instance court.

3. Judgment of the Supreme Court

A. Relevant legal principles

In relation to the crime of obstruction of performance of official duties by fraudulent means, a deceptive scheme means causing mistake, mistake, or land to the other party in order to achieve the purpose of the actor's act, and making the other party mistake, perceive, and use the land. This crime is established only when the other party commits a wrong act or makes a disposition accordingly. If the criminal act does not reach the point of obstructing or making it practically difficult, it may not be punished as the crime of obstruction of performance of official duties by fraudulent means (see Supreme Court Decision 2002Do4293, Feb. 11, 2003).

B. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

1) On June 4, 2014, 19 members of △△△△△△△△ was elected at the 6th nationwide local election, which was implemented on June 4, 2014, 12 of which were the 12 persons belonging to the party (the name of the political party 1 omitted), and 7 of which were the party (the name of the political party 2 omitted). (the name of the political party 1 omitted) five of the members belonging to 12 members were the party A in the constituency of △△△△△△△△, and 7 of which were the party A.

2) On July 8, 2014, the △△△ Council decided to convene a temporary meeting for the election of the chairman and vice-chairman at the end of the seventh period (hereinafter “instant special meeting”). At the time (name 1 omitted), Nonindicted 4, Nonindicted 1, who was the cause of Nonindicted 2, and Nonindicted 1, who was the cause of Nonindicted 3, expressed his intention to leave the office of president, and Nonindicted 1, who was the cause of the fourth line, expressed his intention to leave the office of president, and (name 2 omitted) there was no member who expressed his intention to leave the office of president.

3) (Name 1 omitted) Of the members belonging to the National Assembly, 10 persons including the Defendant (five persons from the constituency A, five persons from the constituency B), who were not Nonindicted 2 and Nonindicted 3, including the Defendant (five persons from the constituency B), gathered △△△△△ Gu in the office of election of the National Assembly members, before the temporary session is convened, on July 6, 2014, in which the election district council was held, and the election district council member Eul was divided into the National Assembly members, and in the latter half, the agreement was made that the election district member Gap should be divided into the National Assembly members. At the time, the Defendant appears to have discussed the measures to prevent the escape marks against the contents of the agreement, and as a result, the agreement was made orally to set up a partition of the above agreement on the ballot paper, set a place at which each National Assembly member will vote in advance and set a mark accordingly (hereinafter collectively referred to as “instant agreement”).

4) According to Article 8 of the Busan Metropolitan Council Rules on Meeting of △△△△△ Council (hereinafter “Rules”), a National Assembly member who intends to be the Chairperson shall register his/her candidate in writing with the Council Secretariat by no later than 18:00 prior to the relevant election day, and only the registered member shall be eligible for the relevant election. However, up to 18:00 prior to the instant election day, only Co-defendant 4 of the first instance trial registered as the candidate for the Speaker, and Nonindicted 2, who was anticipated to be a candidate for the Speaker, did not register his/her candidate for the Speaker, and Nonindicted 1 also did not register his/her candidate by participating in the instant agreement on the condition that he/she was the latter half of the seventh half period.

5) Therefore, the members of the △△△ Office knew that Co-defendant 4 of the first instance trial was the sole withdrawal on the day the instant special meeting was held, and Co-defendant 4 of the first instance trial stated that, in order to attend the instant special meeting, Co-defendant 4 of the first instance trial, he moved from the third floor to the fourth floor of the △△△ Council building to the fourth floor plenary session, and that, to some members, the previous discussions were not held.”

6) In the instant special meeting, Nonindicted 2, who is the largest party, was in charge of the instant election by being entrusted with the president’s duties by proxy pursuant to Article 54 of the Local Autonomy Act. However, prior to the commencement of the voting, Nonindicted 2, who was affiliated with (name 2 omitted), made a statement of the motion that “(name 2 omitted) the number of the chairman assigned to the (name 2 omitted) when considering the ratio of possession of the seats, is less than the number of the chairman assigned to the (name 2 omitted).” 7 members affiliated with the (name 2 omitted of the political party) leave the special meeting. Ultimately, the instant election was held only by 12 members affiliated with the (name 1 omitted of the political party), and the majority of the incumbent members was secured.

7) Nonindicted 2 on behalf of the Speaker appointed co-defendant 3 and Defendant 1 members of the first instance court, who are the first line, as a member of the mark of seats in the instant election. According to the order of the assignment of seats, Nonindicted 2 was assigned to co-defendant 1 and Nonindicted 4 members of the first instance court (name 1 omitted) who belong to the (name 1 omitted) and Nonindicted 3 members belonging to the (name 2 omitted), but all of the members of the lower court (name 2 omitted) were assigned to Defendant 1 as a ballot-counting member according to the south of the special meeting.

8) At the instant election held from around 10:38 on July 8, 2014, Defendant 1, Defendant 3, and Defendant 4 entered the name of Co-Defendant 4 at the center of each ballot paper, Defendant 2 at the center of the ballot paper, and Defendant 5 at the lower bottom of the ballot paper.

9) On July 8, 2014, at the end of voting at around 10:42, Co-defendant 3 and Defendant 1, who is a ballot inspector, have put a seal with public officials belonging to the △△△ Council. They confirm only whether the number of the ballot papers is consistent with that of the members voting at the △△ Council, and whether the name of Co-defendant 4 of the first instance trial was properly indicated on the ballot paper, but they did not confirm the location in which the name of Co-defendant 4 of the first instance trial was written on the ballot paper separately.

10) According to Article 8(1) of the Rules of Meeting, the Speaker shall be elected by secret vote at the plenary session and by the vote of the majority of the incumbent members present and by the vote of the majority of the present members present. However, according to Article 8(3) of the Rules of Meeting, in the case of a sole candidate, even if he did not obtain the attendance of the majority of the incumbent members present at the first session and the majority of the present members present at the second session, he shall be elected by the Speaker if he obtains at all the second vote. As a result of the ballot, Co-defendant 4 of the first instance trial, he was elected as the chairman of the △△△△ Council by obtaining 11 out of the total voting number of 12 votes at the first session, and his ballot paper, with no name of Co-defendant 4

C. Examining the factual basis on the progress of the instant election in light of the aforementioned legal doctrine, the lower court’s determination that recognized the crime of obstruction of performance of official duties by fraudulent means is difficult to accept. The reasons are as follows.

1) The principle of confidential election is a principle to prevent disadvantages caused by the exercise of voting rights by guaranteeing the elector’s secret of voting content so that the elector’s decision-making does not become known to others. The purpose of this principle is to ensure democratic and procedural legitimacy of election by guaranteeing free decision-making in the voting process.

2) Article 48(1) of the Local Autonomy Act provides that the chairman of the local council shall be elected by an secret vote. However, there is no separate provision punishing the chairman of the local council for acts interfering with and infringing on the secret vote in the election of the chairman of the local council. Therefore, on the ground that the act of the accused, etc. is against the secret election principle (the secret vote principle), it cannot be deemed that the act of the accused, etc. interfered with the execution of duties regarding the secret election by the Speaker pro tempore

3) It is difficult to view that the instant agreement itself interferes with the execution of duties of the Speaker pro tempore who is to realize the principle of secret vote in the process of election of the chairman of the local council. It is difficult to readily conclude that the Defendants, as local council members, who have been authorized to choose the chairman of the local council, agreed to select Co-Defendant 4 as the chairman of the first instance trial, and intended to implement each by devising a certain voting method in order to accomplish the implementation of the agreement, regardless of whether it is politically legitimate or desirable, conduct prohibited in relation to the above duties of the Speaker pro tempore cannot be readily concluded.

The reason is that it is difficult to evaluate that local council members have carried out voting in a way that they agreed in advance, namely, a typical act contrary to the principle of secret voting, that is, an act of informing others of the contents of other persons, disclosing the contents of their voting, or demanding other persons to disclose the voting.

4) However, if the Defendant et al. prepared and implemented measures to verify their voting contents at the above agreed level, it can be deemed that the Defendant et al. interfered with the execution of duties regarding the secret ballot management of the Speaker pro tempore pro tempore △△△ Council.”

The main grounds for the prosecution of this case by the prosecutor are as follows: “If there is a National Assembly member who did not cast his vote according to the agreement, it shall be possible to determine the position to put the vote for each National Assembly member in advance, so that the Speaker’s election to proceed by a secret vote may be confirmed later, and it shall be open to the public.”

However, the evidence was not presented to prove that there was a discussion as to who is to determine, when and in what way, the ballot paper verification is to be made, and what kind of sanctions was imposed on the member who cast a vote contrary to the agreement of this case. As seen earlier, there was no discussion as to who is to be commissioned to the member at the time of the agreement of this case, and the selection of Defendant 1’s member was not scheduled on the date of the election of this case, and it was merely deemed that there was no verification procedure as to whether the ballot paper location conforms to the location as stipulated in the agreement of this case in the process of the voting of this case.

Ultimately, it is reasonable to deem that there is no or insufficient proof by the prosecutor on the circumstances that the Defendant, etc. deemed “constition of the Speaker pro tempore pro tempore of △△△ Council to interfere

5) The following circumstances may also serve as a reasonable ground for finding guilty of the facts charged in the instant case.

A) The purpose of the instant agreement was to select co-defendant 4 as the chairperson. Co-defendant 4 of the first instance trial was to individually withdraw, and Co-defendant 4 of the first instance trial, even if he failed to obtain a majority of the votes present at the meeting at the first instance trial, he was elected as the chairperson if he obtained only one vote from the second voting, and thus, the Defendant et al. did not need to implement the instant agreement to prevent the escape slip.

In fact, Co-defendant 4 of the first instance trial stated that some of the members on the election day “I think that there was no previous discussion because Co-defendant 4 was a single candidate,” and all of the Defendants asserted that “The Co-defendant 4 of the first instance trial was put in the sole box, and there was no reason to put a mark on the specific location of the ballot paper as in the instant agreement, and then put the mark normally.” There is room for denying the Defendants’ criminal intent.

B) Examining the respective ballot papers (Evidence No. 94,97 pages) of Defendant 1, Defendant 3, and Defendant 4, the fact that they commonly stated the name of the candidate 4 in the first instance trial at the center of the ballot paper and did not be stated separately from the specific location of the ballot paper.

6) Nevertheless, the lower court upheld the first instance judgment convicting the Defendants of all the charges, deeming that the Defendants interfered with the execution of duties by the Speaker pro tempore pro tempore of the △△△ Council, and that all the charges were convicted. In the establishment of the crime of obstruction of the performance of official duties by deceptive scheme, the lower court erred by misapprehending the legal doctrine on the act of deceptive scheme, the outcome of obstruction of the performance of official duties, and the intention thereof,

4. Conclusion

Therefore, the part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)