[1] The elements for establishing a crime of abandonment of duty

[2] The case holding that the defendant, a consul of the Embassy of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the

[1] The crime of abandonment of duties is not established in all cases where a public official neglects his/her abstract duty by law or internal rules, but is established only in cases of infringement of legal interests with a high degree of illegality and responsibility.

[2] Where a consul in charge of the issuance of visa by the Embassy of the Republic of Korea of China of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea of the Republic of Korea has an official duty to issue or refuse visa upon confirming the facts related to the issuance of visa only for legitimate application for visa issuance, etc., but he/she did not investigate the authenticity of submitted documents at a specific person's request or the economic ability of the visa applicants, possibility of illegal stay, etc., and he/she abandoned his/her duties without a justifiable reason, the case holding that the defendant was acquitted on the grounds that there was insufficient evidence to acknowledge the defendant's intention or negligence on the waiver of duty, as long as the defendant examined whether he/she was in charge of visa issuance based

[1] Article 122 of the Criminal Act / [2] Article 112 of the Criminal Act

[1] Supreme Court Decision 79Do31 delivered on February 26, 1980 (Gong1980, 12674) Supreme Court Decision 82Do3065 delivered on March 22, 1983 (Gong1983, 775)

Defendant

G. L. L. L. L.

Law Firm Han Law Firm, Attorney Kim Professor-chul

The defendant shall be innocent.

1. Facts charged;

From February 24, 2003 to September 14, 2006, the Defendant served as consular consul of the North Korean Embassy and was in charge of the issuance of visa.

As a consul in charge of the issuance of visa by the Embassy, the defendant shall not receive an application for visa issuance directly without going through a travel agency in accordance with the guidelines, etc. of the Embassy, and even if the application for visa issuance is legally filed, the defendant shall not receive the application, and shall not be obliged to perform his/her duties by checking the purpose of entry, possibility of illegal stay, etc., such as whether he/she is subject to the regulation of entry, whether he/she is a person subject to the regulation of entry, whether he/she is authentic of evidentiary documents, whether he/she has submitted evidentiary documents related to invitation documents, such as income certificate and certificate of tax payment, whether he/she is forged, and whether he/she has previously refused to issue visa, and if not, he/she shall perform his/her duties by refusing to issue visa.

Furthermore, in the case of the issuance of visa in China, China has frequently published the case where China has submitted relevant documents, such as evidentiary documents to be attached to the application for visa issuance, invitation-related documents, income certificate, certificate of tax payment, certificate of employment, etc., or false documents, such as evidentiary documents, evidentiary documents to be attached to the application for visa issuance, and documents to be attached to the application for visa issuance, such as certificate of income and certificate of tax payment, and documents of employment, etc., the above Embassy consular division has an administrative officer to conduct a proper examination, and has the administrative officer conduct a basic investigation on whether or not the above relevant documents are altered, altered, or falsely prepared, etc., and sent the confirmation in the visa examination statement to the consul for each item, and the consul has received the confirmation thereof, and finally conducted the issuance of visa in a way of obtaining permission or disapproval.

In addition, when the defendant worked as a consul in China in 2006, the defendant was four years since he was in charge of the issuance of visa in China. As above, in the case of the issuance of visa in China, there is an empty case in which China submitted documents related to the issuance of visa, such as evidentiary documents, invitation-related documents, income certificate, certificate of tax payment, and certificate of employment, and other related documents, such as evidentiary documents to be attached to the application for visa issuance directly or through the issuance of visa, such as evidentiary documents, income certificate, certificate of tax payment, and employment certificate, and the submission of false documents, and the issuance of visa in China, which act as a broker or an agent of the application for visa, are crossings in China, and there is a problem arising from the connection between such huber and consular or staff, and thus, there is a good knowledge of the situation that illegal issuance of visa in China is a subordinate issue.

A. On April 21, 2006, Nonindicted Party 1, an administrative cause for the application for a tourism visa filed by the consul of the Republic of China Embassy located in the Northwest-gu, China on April 21, 2006, was Nonindicted Party 1, who was an administrative cause, failed to make a proper call with the visa applicants, and some applicants were those who are not actually working in the company, and did not submit a copy of the passbook or a certificate of balance.

Nevertheless, the Defendant received the request from Non-Indicted 2 on the same day, and issued the visa to Non-Indicted 2 on the date of receipt of the documents, instead of conducting any additional investigation on the authenticity, etc. of the documents in question at the above Embassy, and issued them to Non-Indicted 2 on three occasions, such as Non-Indicted 2’s economic ability, possibility of illegal stay, etc., as shown in the attached Table 1, and abandoned his duties without good cause.

B. On April 25, 2006, with respect to the application by a tourism visa operator of ZHG SHUXA, ZHGYGYGYGYG, and ZHGGGGGGNG, which was received without going through a travel company, Nonindicted Party 1 presented a negative review opinion on the ground that there is no evidentiary document on the non-party 1’s property ability.

Nevertheless, the Defendant, on the same day, did not examine the economic capacity of the visa applicants and the possibility of illegal stay in the above embassy, and issued the visa to the above ZNG SHUXA, ZHG YG YG YGG YGG YGG YGG YGG YGG as of the date of receipt, and abandoned his/her duties without justifiable grounds.

C. On June 12, 2006, when Nonindicted Party 1 called “Non-Party 1” on the application for a non-party tourist visa, which was received at the above Embassy was called to the company by which Non-Party 1 was working as a non-party for the administrative reason, the answer that the above GUN SHU UN et al. was not a company employee and the above company did not have any person who filed a non-party for the non-party. On the grounds that it is doubtful that the above GUN SHUJ UN et al. were employed as a company employee, the written approval

Nevertheless, on June 15, 2006, the Defendant did not investigate the authenticity of the above documents to be submitted, the economic ability of applicants for visa, and the possibility of illegal stay, etc., and issued visa to the above GUN SHUJ UN and four other persons, as shown in the attached Table 2, without any further investigation, issued eight visas to whom the administrative members in charge conducted a non-issuance opinion as shown in the attached Table 2, and abandoned their duties without good cause.

D. From July 2006 to August 8, 2006, the Defendant: (a) took part in the case of false invitation of Chinese people in the name of “limit Tourism” proceeding from May 2005 to May 7, 2005 under the name of 5th stud hotel of the 5th floor hotel in front of the Seoyangyangyang-gu Hyundai Building, and from January 2, 2005 to February 2, 2005; and (b) took part in the case of false invitation of Chinese people in the name of “Dab Media C” proceeding from around September 2005 to around December 12, 2005 under the name of Non-Party 3, Non-Party 4, Non-Party 4, who was operating a visa with Non-Party 3, Non-Party 4, a professor of the Central National University, and Non-Party 3, a professor of the Korean National University, who requested to obtain a visa from Neging.

Despite the above duties, the defendant, around August 16, 2006, ordered the above non-indicted 4 related to the above non-indicted 3's above non-indicted 3 to promptly receive application documents for tourism expenses for the non-indicted 4's non-indicted 6 other than MOU SHULN and submitted by the above non-indicted 4 on behalf of the travel company, without going through the travel company, and received the application documents for tourism expenses from the non-indicted 4 or non-indicted 3 on the following day without any specific investigation as to the authenticity, etc. of the related documents, and issued the above MOU SHU SHULN and six persons on the same day to the non-indicted 4 and 50 days from July 21, 2006 to September 11, 206 without any justifiable reason. The defendant received the documents from the non-indicted 4 or non-indicted 3 on the following day without confirming the purpose of entry, authenticity of the passport and documents, the applicant's economic ability and purpose of entry.

E. On August 17, 2006, with respect to a business visa application filed by Nonindicted Party 5 for MENG LINGHU and nine other than the above Embassy, Nonindicted Party 5 presented his opinion that Nonindicted Party 6 was the personal telephone number of the person, and that the other party’s statement made through the above numbers is doubtful. Accordingly, the issuance of the visa was postponed on the ground that Nonindicted Party 7 consul of the same Embassy, who is the person in charge of issuance of the above business visa, was cruel of the certificate of employment submitted by the above consul 7, and did not submit relevant documents, such as business house, etc.

Nevertheless, at the above Embassy on August 30, 2006, the Defendant received the solicitation of the executives of the Hancheon-do Council, and did not take necessary measures, such as additional investigation as to whether the above Non-Indicted 7 consular submitted documents were supplemented with respect to the above Non-Indicted 7’s application for the issuance of the visa, whether the submitted documents were true, or whether the above Non-Indicted 7 consular could issue visa, or whether the pertinent documents could issue visa to the above Non-IndictedING LINGUI and 11 non-indicted consulars as shown in the annexed crime list 4, and neglected their duties without good cause.

2. Determination

The crime of abandonment of duties is not established in all cases where a public official neglects his/her abstract duty by law, internal rule, etc., but is established only in cases of infringement of legal interests with high degree of illegality and responsibility.

이 법원에서 적법하게 채택하여 조사한 증거들을 종합하면, 주 중국 대한민국 대사관의 비자발급업무는, 2003. 11.부터 관광비자와 같은 상용 및 친척방문 비자에 대하여 대리수속 지정여행사를 통해서만 접수 및 발급업무를 해오면서, 2004. 4. 17.부터 한 달 정도 개인이 직접 비자를 신청할 수 있도록 하였다가, 2004. 5. 17.부터 다시 지정여행사를 통해서만 접수 및 발급업무를 해 왔고, 2008. 1. 10.에 이르러서야 상용목적의 비자에 한하여 시험적으로 개인이 직접 신청할 수 있도록 그 업무방식이 바뀌어 왔고, 업무처리방식도 행정원들을 통하여 확인한 서류의 진위 여부에 대한 의견을 토대로 담당영사가 비자발급 여부를 결정하게 함으로써 그 업무의 적정성을 담보해 온 사실, 그런데 이러한 대리수속제도는 사스(SARS)로 인한 전염병 확산 방지 및 탈북자 난입으로 인한 영사관의 질서파괴행위를 방지하기 위하여 만든 것으로 비자접수업무의 효율성 제고를 염두에 둔 절차적인 사항에 관한 것으로 대리수속제도가 시행되어 있을 때에도 담당영사의 재량에 따라 비자신청인의 공신력이나 구체적인 상황 등을 감안하여 개별접수를 하기도 한 사실, 담당영사는 비자발급을 함에 있어 행정원의 기초조사에 근거하여 업무를 처리해 온 것은 사실이나, 그 의견에 기속되는 것은 아니고 언제든지 재조사나 추가조사를 지시하여 업무처리를 해 온 사실, 지정여행사를 통한 비자신청에서 발급까지 소요되는 기간은 통상 4~5일 정도였으나, 담당영사의 다른 업무 또는 출장 등의 사유 때문에 그 보다 빨리 또는 늦게 처리되기도 하였고, 발급대상자의 개인적인 사정에 따라 합리성 여부를 판단하여 비자신청 접수 당일 발급하기도 하였던 사실, 피고인 역시 이에 따라 비자발급업무를 처리하면서 행정원들이 부정적인 심사의견을 제시한 경우, 피고인이 서류를 심사한 결과 다시 확인할 필요가 있다고 판단하면 다시 조사하라고 지시를 하여 비자를 발급한 사실, 공소외 2 관련 부분의 경우, 공소외 2가 2006. 2. 24. 신청한 사람은 4명, 2006. 4. 21. 신청한 사람은 13명, 2006. 7. 27. 신청한 사람은 9명으로 3회에 걸쳐 26명이었는데, 그 중 24명에 대한 비자가 별지 범죄일람표 1 기재와 같이 발부되었고, 2006. 2. 24. 신청한 사람들에 대한 심사는 7일이 소요되었으며, 심사의견서란에 ‘ 공소외 2 전 관세관 부탁건, 문제없을 것이라고 함’, ‘전 관세관( 공소외 2)의 협조요청서 있음’ 등의 기재를 해 놓았던 사실, ZHANG SHUXIA, ZHANG YONGJIANG 남매 부분의 경우, 행정원이 면담요청을 하고 있는 중국인이 있다고 하여 피고인이 두 사람을 만났는데, 누나인 ZHANG SHUXIA가 다리에 장애가 있는 동생 ZHANG YONGJIANG을 데리고 와 치료를 받기 위하여 친척이 있는 한국에 간다고 하여 피고인이 누나와 면담하고 동생의 몸 상태도 직접 눈으로 관찰한 후 비자발급사유에 해당하는 치료 목적에 해당한다고 보아 비자를 발급한 사실, 공소외 4 관련 부분의 경우, 공소외 4는 북경에 있는 중앙민족대학교에서 성악을 하고 있는 교수로 2006. 7. 21. 학생 2명의 비자신청 때문에 대사관에 왔다가 피고인을 만나게 되어 피고인이 학생 2명에 대한 면담을 거쳐 비자를 발급해 주게 된 사실, 공소외 4는 그 후 별지 범죄일람표 3 기재와 같이 피고인에게 비자발급을 부탁하게 되었는데, 피고인은 공소외 4가 비자발급신청서를 가지고 올 때마다 행정원에게 접수를 지시하였고, 면담을 하지 않은 때에는 서류상 검토를 거친 후 비자를 발급한 사실, 피고인은 공소외 4가 2006. 9. 8. 신청한 18명 중에서 1명에 대하여는 비자발급을 불허하고, 17명에 대하여는 비자를 발급해 준 사실, 공소외 4가 2006. 9. 11. 신청한 3명은 공소외 4의 처와 조카들로서 피고인은 공소외 4의 처와 면담을 통하여 방한경력 및 체류일정 등에 관한 설명을 들은 후 비자를 발급한 사실, 공소외 7 영사 업무침해 부분의 경우, 공소외 7 영사는 문제가 된 비자신청건에 관하여 공소외 5 행정원에게 서류제출을 지시하였고, 공소외 5 행정원은 그러한 지시를 하였다는 뜻으로 ok 표시를 의견서에 기재해 놓았던 것인데, 대사관으로부터 대리수속기관으로 지정되어 있었던 천진 한인회에서 2006. 8. 17. 접수한 비자발급이 늦어진다는 전화를 2006. 8. 30. 받은 피고인이 그 서류를 검토해 본 후 ok 표시를 비자발급에 문제가 없는 것으로 인식한 상태에서, 공소외 5 행정원으로부터 별 문제없는 것이라는 답변을 듣고 비자발급을 한 사실, 공소외 7 영사는 2006. 8. 30. 이사 때문에 출근하지 않았던 사실을 인정할 수 있다.

In full view of these circumstances, it is difficult to view that the Defendant intentionally renounced the Defendant’s duty on the visa processing service in the process of examining whether to issue visa based on the investigation data of the administrative agency when conducting the visa issuing service or examining whether to issue visa by going through direct interviews.

The evidence submitted by the prosecutor alone is insufficient to recognize that the defendant had renounced his duties as a food, and there is no other evidence to acknowledge this otherwise. While there was a prosecutor’s statement on the part related to Nonindicted 4 that the defendant issued a visa without any examination at all, in light of the circumstances acknowledged earlier, it is insufficient to recognize that the defendant had the intent to waive his duties, even if comprehensive statements made by Nonindicted 8, Nonindicted 1, Nonindicted 9, Nonindicted 10, Nonindicted 10, Nonindicted 11, Nonindicted 12, Nonindicted 13, Nonindicted 14, Nonindicted 7, and Nonindicted 5, etc. are combined with the prosecutor’s statement, and in light of the circumstances acknowledged earlier.

In conclusion, in this case, there is insufficient evidence to prove that the defendant had issued a visa with the knowledge of the following facts, i.e., the defendant's intentional or dolusent intention on the following facts, i.e., the defendant's issuance of visa despite being not a reason for issuance of visa; ② the document attached to the application for issuance of visa was forged or falsified; or ③ the fact that the defendant issued a visa without any investigation with respect to the applicant for the issuance of visa was issued at the request of a specific person.

Therefore, the defendant is acquitted under Article 325 of the Criminal Procedure Act.

[Attachment]: omitted

Judges Kim Jong-soo