Whether the president of the Korea Water Resources Corporation, who is an officer of a government-invested institution, constitutes “a person deemed a public official pursuant to the Acts and subordinate statutes” under Article 111 of the Attorney-at

[Majority Opinion] Article 111 of the Attorney-at-Law Act provides that a person who is not a public official shall be deemed a public official in the application of Article 111 of the Attorney-at-Law Act, and it shall not be deemed that a public official is subject to criminal punishment in the case or affairs handled by a public official, including cases where a public official is deemed to be a public official in the application of Article 111 of the Attorney-at-Law Act, or where a public official is deemed to be a public official in the case or affairs handled by a non-public official. However, Article 18 of the Framework Act on the Management of Government-Invested Institutions provides that a public official shall be deemed to be subject to criminal punishment in the case or affairs handled by a public official, and it shall not be deemed that the case or affairs handled by a public official are subject to criminal punishment in general cases other than such cases. Thus, Article 118 (1) of the Attorney-at-Law Act provides that a public official shall not be deemed to be a public official in violation of the Act and subordinate statutes of Korea.

[Dissenting Opinion by Justice Kim Yong-dam, Justice Kim Sung-tae, Justice Kim Jong-tae, Justice Kim Nung-hwan, Justice Kim Nung-hwan, and Justice Ahn Dai-hee] The officer or employee of government-invested institution under Article 2 of the Framework Act on the Management of Government-Invested Institutions shall be appointed as a public official in the application of Articles 129 through 132 of the Criminal Act (Article 18 of the Framework Act on the Management of Government-Invested Institutions). Thus, within the scope of possible meaning of the text of the part within the scope of "public official (including a person deemed a public official under the Acts and subordinate statutes)" under Article 111 of the Attorney-at-Law Act, the officer or employee of the Korea Water Resources Corporation shall be deemed as a public official under Article 111 of the Attorney-at-Law Act. In light of the legislative purport of Article 18 of the Framework Act on the Management of Government-Invested Institutions, the legislative purpose of Article 111 of the Attorney-at-Law Act, and the relationship with Articles 129 through 132 of the Criminal Act, it shall not be deemed unreasonable.

[Supplementary Opinion to the Majority Opinion] The Majority Opinion holds that Article 111 of the Attorney-at-Law Act (including a person who is deemed a public official under the law) should be strictly interpreted in accordance with the principle of interpretation of penal law as required by the principle of no punishment without law. Specifically, in the application of Article 111 of the Attorney-at-Law Act, in a case where a public official is deemed a public official, in general, in the case where a public official is deemed a public official in the application of the criminal punishment provision, the case or affairs handled by a person who is not a public official is deemed as a public official, and where a solicitation or arrangement is made in the same manner as the case or affairs handled by a public official, it shall be deemed as a public official, and it shall be limited to a case where the scope of the subject of punishment under Article 111 of the Attorney-at-Law Act can be clearly confirmed. Such interpretation is close to the interpretation of the Constitution.

Article 111 of the Attorney-at-Law Act, Article 2 and Article 18 of the Framework Act on the Management of Government-Invested Institutions

Supreme Court Decision 99Do3073 Delivered on September 17, 1999, Supreme Court Decision 2005Do1903 Delivered on May 13, 2005 (overruled)

Defendant

Defendant and Prosecutor

Law Firm Sejong, Attorneys Lee Ho-ro et al.

Seoul High Court Decision 2005No2685 decided June 23, 2006

The part of the judgment of the court below, excluding the violation of each Attorney-at-Law Act and the larceny, shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The prosecutor's appeal shall be dismissed.

1. The grounds of appeal are examined.

A. As to the Defendant’s ground of appeal on the violation of the Attorney-at-Law Act related to Nonindicted 3 and 4

Article 111 of the Attorney-at-Law Act provides that "any person who receives or promises to receive money, valuables, entertainment or other benefits under the pretext of solicitation or arrangement with respect to cases or affairs handled by a public official (including any person who is deemed a public official under the Acts and subordinate statutes), or any person who causes or promises to give them to a third person, shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won, or both."

As such, the Attorney-at-Law Act provides that an act of receiving money and valuables, etc. under the pretext of solicitation or good offices shall be punished not only for cases or affairs handled by public officials, but also for cases or affairs handled by a person deemed a public official under the Acts and subordinate statutes. However, the scope of the act of receiving money and valuables, etc. shall be determined through interpretation because the scope of the act of receiving money and valuables is not expressly provided for by the Acts and subordinate statutes. Article 111 of the Attorney-at-Law Act intends to prohibit the act of receiving money and valuables, etc. under the pretext of solicitation or good offices by “cases or affairs handled by public officials.” Since Article 111 of the Attorney-at-Law Act is originally subject to solicitation or good offices

Although there are many cases in which individual statutes stipulate the legal fiction of a public official for a person who is not a public official, the specific scope of a person is determined by taking into account various factors, including the degree of the public nature of his/her duties, etc. Therefore, even if an individual statute does not stipulate a general public official’s legal fiction of a specific matter and has a public official’s legal fiction of a specific matter, such circumstance alone cannot be viewed as a case or affairs dealt with by a public official who is not a public official subject to Article 111 of the Attorney-at-Law Act uniformly and uniformly, who handles various types of affairs.

Therefore, Article 111 of the Attorney-at-Law Act which considers a person who is not a public official as a public official is reasonable only when the content of an individual statute is specifically deemed a public official in the application of Article 111 of the Attorney-at-Law Act, or when the contents of an individual statute are deemed to be a public official in the application of all criminal punishment provisions which are generally deemed to be a public official in the application of Article 111 of the Attorney-at-law Act, or when the case or affairs handled by a person who is not a public official are identical to the case or affairs handled by a public official and are subject to criminal

However, Article 18 of the Framework Act on the Management of Government-Invested Institutions at issue in this case provides that "the officers and employees of the government-invested institutions shall be deemed public officials in the application of Articles 129 through 132 of the Criminal Act." In the past, the Supreme Court stated the purport of the above provision as "the legal fiction of public officials in the application of the crimes concerning bribe as provided by the Criminal Act to the officers and employees of government-invested institutions." In other cases, it does not mean that the officer and employees of government-invested institutions are naturally deemed public officials or hold the status of public officials." (see Supreme Court Decision 9Do3073 delivered on September 17, 199). Accordingly, the Supreme Court has interpreted the provision of the Framework Act on the Management of Government-Invested Institutions to the effect that it is strictly limited to cases where the provision of the public officials and employees of government-invested institutions under the Framework Act on the Management of Government-Invested Institutions is not applicable to cases where the crimes concerning bribe of government-invested institutions are applied to the above public officials and employees."

The interpretation of penal provisions must be strict, and the interpretation of the meaning of the provision of an explicit or analogical interpretation to the disadvantage of the defendant is not permitted since it is against the principle of no punishment without the law," which has been established by the Supreme Court so far (see, e.g., Supreme Court en banc Decision 92Do1428, Oct. 13, 1992; Supreme Court Decision 2001Do5410, Feb. 8, 2002; Supreme Court Decision 2003Do6535, Feb. 27, 2004; Supreme Court en banc Decision 2004Do7773, Oct. 19, 206).

In light of the above legal principles, if Article 111(a) of the Attorney-at-Law Act provides that the scope of "a person deemed a public official under the laws and subordinate statutes" as provided in the above provision shall be deemed to be all applicable to the case in which individual laws and regulations stipulate that the scope of "a person deemed a public official under the laws and regulations" shall be deemed to be a public official and it shall not be readily concluded that the meaning of the above provision can be clearly understood as the meaning of the above provision from the perspective of ordinary people who are a criminal offender, and as seen earlier, it is sufficiently possible to reasonably limit the scope of "a person deemed a public official under the laws and regulations" as provided in Article 111(a) of the Attorney-at-Law Act, but it shall be excessively expanding the scope of the above provision to be disadvantageous to those who are subject to the application of the provision

Therefore, Supreme Court Decision 2005Do1903 Decided May 13, 2005, which held that the person subject to Article 18 of the Framework Act on the Management of Government-Invested Institutions, which is a public official's provision in the application of the crime of bribery under the Criminal Act, constitutes the other party to solicitation or referral under Article 111 of the Attorney-at-Law Act, i.e., a person deemed a public official under the law, shall be modified to the extent inconsistent with the opinion of this decision.

Therefore, the president of the Korea Water Resources Corporation, who is an officer of government-invested institution, cannot be deemed to be a "person who is deemed a public official under the laws and regulations" under Article 111 of the Attorney-at-Law Act on the grounds as seen earlier. Thus, the court below's determination that the president of the Korea Water Resources Corporation constitutes "a person deemed a public official under the laws and regulations" under Article 111 of the Attorney-at-Law Act and found the defendant guilty of this part of the facts charged is erroneous in the misapprehension of the legal principles of "a person deemed a public official under the laws and regulations" under Article 111 of the Attorney-at-Law Act, and it has affected the conclusion of the judgment. The defendant'

B. As to the grounds of appeal by the prosecutor on the violation of the Attorney-at-Law Act and the larceny of Nonindicted 2 and 1

The gist of this part of the grounds of appeal by the prosecutor is nothing more than the argument to the effect that the selection of evidence and fact-finding, which belong to the exclusive authority of the court below, are erroneous, and the reasoning of the court below is examined in light of the records, and it is reasonable to find the defendant not guilty of this part of the facts charged, since the court below judged that the evidence submitted by the prosecutor is not reliable or admissible in light of the circumstances of the court below's recognition

In addition, as seen in paragraph (a) above, the president of the Korea Water Resources Corporation cannot be deemed to be a "person deemed a public official under the laws and regulations" under Article 111 of the Attorney-at-Law Act, and the act of receiving money and valuables under the pretext of solicitation or intermediation for the affairs handled by the president of the Korea Water Resources Corporation cannot be deemed to violate Article 111 of the Attorney-at-Law Act. Thus, the Prosecutor's ground

C. As to the grounds of appeal by the defendant and the prosecutor on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with regard to the amount equivalent to KRW 3 billion of company

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to have acquitted the Defendant on the part of this part of the facts charged that the Defendant embezzled the amount equivalent to KRW 1.1 billion of company funds and embezzled the amount equivalent to KRW 1.8 billion of company funds.

The court below did not err in the misapprehension of legal principles as to provisional payment and embezzlement, and the remainder of the grounds of appeal by the defendant and prosecutor is without merit, and it cannot be accepted as a whole, since it erred in the misunderstanding of legal principles as to the selection of evidence and fact-finding which belong to

D. As to the grounds of appeal by the Defendant and the Prosecutor as to the violation of the former Punishment of Tax Evaders Act (amended by Act No. 7321 of Dec. 31, 2004; hereinafter the same), the violation of the Punishment of Tax Evaders Act (amended by Act No. 7321 of Dec. 31, 2004; hereinafter the same), the violation of the Punishment of Tax Evaders Act (amended by Act No. 7321 of Dec. 1, 2003); the violation of the Punishment of Tax Evaders

(1) The gist of the Defendant’s ground of appeal in this part is nothing more than the allegation that the lower court erred by misapprehending the legal doctrine on the premise that the lower court erred by selecting evidence and finding facts, which belong to the exclusive authority, or on the premise that facts are different from the facts acknowledged by the lower court, and examining the reasoning of the lower judgment in light of the records, the lower court’s finding the Defendant guilty of this part of the facts charged (excluding the portion of innocence related to corporate tax evasion) on the premise that Chapter 115 of the tax invoice as indicated in the lower judgment was prepared and delivered without supplying goods or services under the Value-Added Tax Act is justifiable

(2) Meanwhile, in light of the principle of substantial taxation as stipulated in Article 14(1) of the Framework Act on National Taxes and Article 4(1) of the Corporate Tax Act, when there is a separate person to whom the income, etc. subject to taxation belongs, other than the person to whom it belongs legally, the person to whom it actually belongs shall be liable to pay taxes. Therefore, in calculating the corporate tax of Nonindicted 5 Stock Company operated by the Defendant, the lower court is justifiable in excluding the amount of solicitation received from Nonindicted 3 from the gross income, and there is no error in the misapprehension of legal principles as to the gross income under the Corporate Tax Act

2. As to the violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment, there is no specific ground for appeal, but it cannot be seen that the president of the Korea Water Resources Corporation is a public official under the laws and regulations under Article 111 of the Attorney-at-Law Act, as seen earlier, since the president of the Korea Water Resources Corporation falls under the “person who is deemed a public official under the laws and regulations” under Article 111 of the Attorney-at-Law Act and thus, the court below found the defendant guilty of the violation of Article 111 of the Attorney-at-Law Act on the Regulation and Punishment of Criminal Proceeds Concealment in this part on the premise that the act of receiving money and valuables under the pretext of soliciting or arranging the affairs handled by the president of the Korea Water Resources Corporation constitutes a public official under the laws and regulations

3. As to the guilty portion of the violation of the former Punishment of Tax Evaders Act in relation to the issuance of false tax invoices, and the violation of the Punishment of Tax Evaders Act in the year 1, 2000, 1, and 201 regarding the evasion of value-added taxes, the prosecutor submitted a letter of appeal to the effect that the defendant is dissatisfied with the non-guilty portion of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) with regard to the amount of aggregate sales amount of KRW 2.6 billion, and each violation of the Punishment of Tax Evaders Act related to the evasion of value-added taxes. However, the prosecutor did not make a determination on this portion of the grounds for appeal on the grounds that there are no grounds for appeal on

4. Therefore, the guilty part of the judgment of the court of first instance that acquitted of the violation of the Attorney-at-law Act and the Act on Regulation and Punishment of Punishment of Criminal Proceeds Concealment in the judgment below is no longer possible. Each of the above crimes is concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining guilty part. The guilty part among the violation of the Punishment of Tax Evaders Act related to the tax evasion in each of the corresponding taxable periods and the violation of the Punishment of Tax Evaders Act related to the tax evasion in each of the corresponding taxable periods. The acquitted part of the judgment of the court of first instance that acquitted of the violation of the Punishment of Tax Evaders Act related to the tax evasion in 200 and 201 was already finalized by the prosecutor's failure to file an appeal, and the guilty part and the acquitted part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) are one of the crimes, and the judgment of the court below is reversed, and the remaining part of the crime is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed as per the dissenting opinion.

5. Dissenting Opinion by Justice Kim Yong-dam, Justice Yang Sung-tae, Justice Kim Hwang-sik, Justice Park Il-hwan, Justice Kim Nung-hwan, and Justice Ahn Dai-hee

A penal provision shall be strictly interpreted and applied, and shall not be excessively interpreted or analogically interpreted in the direction unfavorable to the defendant. It is not necessary for the Supreme Court to see that the interpretation of a penal provision has been stressed in a single way. However, the interpretation of a penal provision is also a work to clarify its normative meaning and apply it to specific facts. However, there is such restriction in the request of the principle of no punishment without punishment. However, as in other Acts, it is necessary to clarify the contents of the language possible and language meaning of the fishing gear or door in the legal text and at the same time to have logical consistency in light of the relationship with other Acts (constitional interpretation). In a case where the literal or logic of a penal provision cannot sufficiently grasp its meaning as a legal norm by itself, it is also possible to embody its meaning within the ordinary meaning of the penal provision (see, e.g., Supreme Court en banc Decision 200Do2653, Feb. 26, 201).

First of all, with respect to the possible meaning of the phrase "public official (including a person deemed a public official under the laws and regulations)" under Article 111 of the Attorney-at-Law Act, where the interpretation in this case is at issue, a person who is deemed a public official regardless of the specific form and scope of individual Acts and subordinate statutes and the specific form of the provision shall be deemed a public official. Thus, inasmuch as Article 111 of the Attorney-at-Law Act only provides that the public official shall be deemed a public official in the application of Articles 129 through 132 of the Criminal Act (Article 18 of the Framework Act on the Management of Government-Invested Institutions), the officer of a government-invested institution under Article 2 of the Framework Act on the Management of Government-Invested Institutions and the employee as prescribed by the Presidential Decree (hereinafter "executive officer and employee") shall be deemed a public official (Article 18 of the Framework Act on the Management of Government-Invested Institutions) and any officer and employee of the Korea Water Resources Corporation shall not be deemed a public official in the direction of the Attorney-at-Law Act.

However, in cases where the interpretation according to the possible meaning of such language and text has produced unreasonable results or is contrary to the request of the principle of no punishment without law in light of the grounds for deeming public officials under other Acts and subordinate statutes and the legislative purpose of Article 111 of the Attorney-at-Law Act, the meaning of the overall title and text of the law and order shall be limited to ordinary interpretation, taking into account all the elements such as the ideology of the entire law and order, function and purpose of penal law, protection of legal interests and purpose of protection (the teleological reduction interpretation). Therefore, this interpretation in accordance with the possible meaning of the text

Article 18 of the Framework Act on the Management of Government-Invested Institutions provides that a government-invested institution shall appoint an officer or employee of a government-invested institution as a public official in the application of Articles 129 through 132 of the Criminal Act. The purport of the government-invested institution is that a government-invested institution is an enterprise which has invested more than 50 percent of its paid-in capital and has high public nature like the duties performed by a public official, so that it protects the people's trust in the fair and integrity performance of duties performed by its officer or employee and guarantees the fairness of the function and role performed by the government-invested institution. Meanwhile, the basic legislative purpose of Article 111 of the Attorney-at-Law Act is to prevent a public official from participating in another person's case or affairs scheduled to execute the law in order to obtain money, valuables, or other benefits. However, the above provision prevents an indirect infringement of the people's trust in the fair and integrity performance of duties performed by a government-invested institution, and thus, it is highly probable that the other party to the solicitation and solicitation of the case or affairs performed by a government-invested institution.

In addition, even from the perspective of an ordinary person who is a criminal, there is no significant difference in the application of Articles 129 through 132 of the Criminal Act in the case of legal fiction as a public official and in the case of application of penal provisions under the Criminal Act or other Acts. This regulation method is relatively simple and it is difficult to see that a criminal is not clearly able to understand penal provisions, and it is not easy to expand the scope of punishment in a way unfavorable to a criminal who is subject to general protection under Article 111 of the Attorney-at-Law Act. In addition, in the case of a government-invested institution or an employee at issue in this case, in light of the legislative purpose and function of Article 111 of the Attorney-at-Law Act as seen earlier, the interpretation of Article 129 through 132 of the Criminal Act can not be easily seen as being against the principle of no punishment without the law.

In short, deeming that a case or office handled by an officer or employee of a government-invested institution constitutes a case or office handled by a public official under Article 111 of the Attorney-at-Law Act is faithfully interpreted in accordance with the law, and Article 111 of the Attorney-at-Law Act does not extend excessively to the disadvantage of the defendant, nor does it result in any unreasonable interpretation.

According to the interpretation of the majority opinion, since the newly established purport of the newly established portion of the Attorney-at-Law Act is entirely dismissed, I do not agree with the majority opinion. In other words, among the cases listed in the majority opinion, ① specifically deemed a public official in the application of Article 111 of the Attorney-at-Law Act, or ② generally deemed a public official in the application of all criminal punishment provisions which constitute a constituent element, it can be interpreted as a case or business handled by a public official who is deemed a public official under Article 111 of the Attorney-at-Law Act, even though there is no comprehensive defense part, and ③ it seems that the new part of the newly established portion of the newly established portion of Article 111 of the former Attorney-at-Law Act should be interpreted as a public official in the case or business handled by a public official who is not a public official, and it is difficult to agree with the majority opinion that the new part of the newly established portion of Article 10 to Article 111 of the former Attorney-at-Law Act should be subject to criminal punishment.

In light of Article 78 subparag. 1 of the former Attorney-at-Law Act (amended by Act No. 4544 of Mar. 10, 193) and Article 90 subparag. 1 of the former Attorney-at-Law Act (amended by Act No. 6207 of Jan. 28, 200), the above provision does not provide for the provision regarding punishment for acts of good offices and placement, and the purport of the provision regarding punishment of officers and employees of the National Park Service under the former Attorney-at-Law Act should be interpreted as public officials in light of the above provision regarding punishment for acts of good offices and placement. The purport of the provision that the above provision regarding punishment of officers and employees of the National Park Service should be regarded as public officials only when it applies penal provisions under the Criminal Act or the Natural Parks Act, and it would be unreasonable for the Korea Highway Corporation to apply the above provision regarding punishment of officers and employees of the National Park Service to the extent that the above provision concerning punishment for acts of good offices and placement is unreasonable.

Article 18(1) of the Framework Act on the Management of Government-Invested Institutions provides that the meaning of the provision of Article 18(1) of the same Act shall be strictly limited to cases where the crime of bribery prescribed by the Criminal Act is applicable. Such interpretation can be reasonable as only an interpretation of Article 18 of the Framework Act on the Management of Government-Invested Institutions. However, according to Article 18(1) of the same Act, a public official who is both the principal of the crime and the principal of the government-invested institution, shall be deemed to be the principal of the crime of receiving and arranging a bribe, as well as the case where a public official becomes the principal of the offense of acting as the principal of the government-invested institution. In other words, Article 111 of the Attorney-at-Law Act provides that if a public official acts as a broker or an employee of the government-invested institution is a counterpart to the act of arranging it, it is difficult to deem that there is a difference between the principal and the principal of the government-invested institution and the other public official's act of arranging or arranging the bribe.

For the same reason, we oppose the majority opinion that “cases and affairs handled by the officers and employees of the Korea Water Resources Corporation” do not constitute “cases and affairs handled by public officials (including persons deemed public officials under the laws and regulations)” under Article 111 of the Attorney-at-Law Act. Therefore, in applying Article 111 of the Attorney-at-Law Act to the same opinion, we need to maintain the Supreme Court Decision 2005Do1903 Decided May 13, 2005, which held that in applying Article 111 of the Attorney-at-Law Act, the officers and employees of the Korea Water Resources Corporation, a government-invested institution, shall be deemed to fall under the overall title, and the decision of the court below that found the Defendant guilty of the violation of the Attorney-at-Law Act and the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment should also be maintained.

6. Concurrence with the Majority by Justice Kim Ji-hyung

The difference between the majority opinion and the dissenting opinion on how to interpret the meaning of "a person who is deemed a public official under the laws and regulations" as stipulated in Article 111 of the Attorney-at-Law Act is eventually attributable to the problem of how to establish the limit of the principle of no punishment without law.

It is the basic request for the clarity principle derived from the principle of no crime without the law, which clearly provides that anyone who intends to punish a law, and accordingly clearly prescribes his/her act. However, whether Article 111 of the Attorney-at-Law Act is a penal provision so that the general public can fully know what acts are prohibited in detail as a criminal law? In addition to the majority opinion, it is intended to express a few questions raised in relation thereto.

A. First, it is doubtful whether the legislative form of the overall title of Article 111 of the Attorney-at-Law Act itself has existed.

Article 111 of the Attorney-at-Law Act provides that "a person who is deemed a public official pursuant to Acts and subordinate statutes" shall be defined as "a person who commits a violation of Article 111 of the Attorney-at-Law Act" and takes a form of delegating a certain part of the elements of crime

It would be desirable to fully stipulate the elements of a penal law only with the provisions thereof, but it is not necessarily required to be self-sufficient in all cases, but it is possible to allow sub-laws or other statutes to be delegated to other statutes.

However, Article 111 of the Attorney-at-Law Act only delegates a certain part of the elements of a crime to other Acts and subordinate statutes, but does not have any provision that can specify the relevant Acts and subordinate statutes specifically. This belongs to a very exceptional case, unlike the case where a penal law is delegated to subordinate Acts and subordinate statutes.

In addition, it is difficult to find out whether an act constitutes a criminal act violating Article 111 of the Attorney-at-Law until it is confirmed daily whether a person who is not a public official is a person who is deemed a public official even though another statute has a provision on the agenda of a public official, and is not a public official, because it is not a person who is not a public official.

In order to gather individual laws and regulations which have been stipulated in the legal fiction clause of public officials up to now, the Act on the Protection of Personal Information of Public Institutions, Construction Technology Management Act, the Framework Act on the Construction Industry, the Building Act, the Public Officials Pension Act, the Public Officials Pension Act, the Registration of Bonds and Debentures Act, the Tourism Promotion and Development Fund Act, the National Technical Qualifications Promotion Fund Act, the Act on Special Measures for the Deregulation of Business Activities, the Act on the Appointment of Special Prosecutor for the Promotion of Small and Medium Enterprises, the Labor Relations Commission Act, the Farmland Act, the Korea Urban Development Corporation Act, the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the Act on the Assistance to Electric Power Plants Areas, the Promotion of Use of Radiation and Radioisotope, the Public Notice and Appraisal of Real Estate Act, the Act on the Restoration of Honor to and Compensation to Owners of Private Railroad, the Act on the Establishment and Operation of Land Reclamation Corporation, the Industrial Product Safety Act, the Export Credit Guarantee Fund Act, the Act on the Promotion of Utilization and Management of Agricultural Products, the Act on the Promotion of Information and Communications Network Act, etc.

B. Next, whether the overall title of Article 111 of the Attorney-at-Law Act deviates from the limit of delegated legislation that is demanded by the principle of no punishment without the law, or not, is limited to the issue of how to interpret the meaning of "a person who is deemed a public official by the law" in the above overall title.

In short, the Dissenting Opinion’s view on this point appears to the purport that “a person deemed a public official regardless of the specific form of individual laws and the scope to which a public official is deemed a public official” is “an interpretation in accordance with the possible meaning of the language and text of the above provision,” and that, in exceptional cases, it is unreasonable to interpret that a person deemed a public official is included in a person deemed a public official under Article 111 of the Attorney-at-Law Act even if he/she is deemed a public official under a specific statute in light of the grounds for legal fiction and legislative purpose of Article 111 of the Attorney-at-Law Act, or in cases where it is in violation of

In interpreting the meaning of the overall title of Article 111 of the Attorney-at-Law Act, there is room for the Dissenting Opinion to interpret that the meaning of the text should be limitedly interpreted as the meaning of the text as above, and it is reasonable to accept it positively. However, it is understood that there is still a broad position to allow the cases where the overall title of Article 111 of the Attorney-at-Law is applied only to exceptional cases where such a limited interpretation is recognized, and there is also a question as follows from the point of view of the principle of no punishment without law.

However, the number of cases deemed public officials can be diverse. Nevertheless, it is questionable whether it simply means all cases deemed public officials under the law, or whether it is divided into cases where there is no intention or negligence in relation to the application of Article 111 of the Attorney-at-Law Act or cases where it is not, and if it is later, how it is meaningful in relation to the application of Article 111 of the Attorney-at-Law Act or how it is specifically divided into cases where it is not.

In addition, the following cases are as follows. The legal status of public officials in comparison with a private person who is not a public official may not be gathered at one time. A public official is the subject of his/her official administrative action. A public official is granted a special right to guarantee his/her status, and is also recognized as a property right other than a public official in his/her remuneration. On the other hand, the responsibility in this context lies in administrative law, such as disciplinary action or compensation, and special cases in civil liability are recognized, and the person who is not a public official also becomes the subject of criminal punishment different from a public official in criminal liability. Accordingly, recognizing the status of a public official in relation to a person who is not a public official may be deemed as a public official within the scope of granting a certain right given to a public official in accordance with the legislative needs required by an individual law among the above various matters, and at the same time, he/she may be deemed as a public official within the scope of imposing the same obligation or responsibility as a public official. Liability among the public officials may be deemed as a public official within the same scope of administrative responsibility as a public official, and may be held as a public official for the same purpose of criminal responsibility.

In mind, there are several cases in mind. In relation to state compensation, an individual who is a public official is liable for liability when there is an intentional or gross negligence, and it is necessary to limit the liability of an individual to a specific person who is not a public official, and thus, there is a legal provision that recognizes the status corresponding to a public official within the scope of such liability. Whether a person who is deemed a public official under such legal provision can be referred to as “a person who is deemed a public official under the laws and subordinate statutes” as stipulated in Article 111 of the Attorney-at-Law Act. Article 136(1) of the Criminal Act provides that an act of assaulting or threatening a public official who performs a public official is punished for obstruction of performance of official duties. In relation to the execution of a public official’s duties, if there is a provision that an act of assaulting or threatening a public official is deemed a public official under Article 136(1) of the Criminal Act to be subject to punishment, it can be said that such a person is a person deemed a public official under the laws and regulations stipulated in Article 111

The dissenting opinion argues that in accordance with Article 18 of the Framework Act on the Management of Government-Invested Institutions at issue in this case, in the case of an officer or employee of a government-invested institution who is deemed a public official under Article 129 through 132 of the Criminal Act, it does not constitute a case to be excluded from the "person who is deemed a public official under the laws and regulations" under Article 111 of the Attorney-at-Law Act. The dissenting opinion argues that the main reason is that "in the case of an officer or employee of a government-invested institution, the officer or employee of the government-invested institution shall be deemed a public official in the application of Articles 129 through 132 of the Criminal Act, and in the case of the legislative purpose and function of Article 111 of the Attorney-at-Law Act, it shall include the case and affairs handled by the officer or employee of the government-invested institution in

In this regard, the Dissenting Opinion argues that the case and affairs dealt with by a public official under Article 18 of the Framework Act on the Management of Government-Invested Institutions shall also be prohibited from being subject to a solicitation or good offices, and that the case and affairs dealt with by an officer and employee of government-invested institutions shall also be subject to criminal punishment under Article 111 of the Attorney-at-Law Act, and it is not based on the premise that it can be clearly interpreted from the criminal perspective.

However, Supreme Court Decision 99Do3073 delivered on September 17, 1999, held in the majority opinion, where the issue is whether the act of receiving money and valuables under the pretext of solicitation by an officer or employee of a government-invested institution constitutes a violation of the Attorney-at-Law Act is the same as the work of an officer or employee of a government-invested institution to be dealt with by a public official, the majority opinion argues that the meaning of the provision of Article 18 of the Framework Act on the Management of Government-Invested Institutions should not be strictly interpreted, and it should not be extended even beyond the scope of the item, once again, the majority opinion stated that it is possible to interpret the provision like the dissenting opinion.

In addition, as mentioned in paragraph (a) of the above, it is not sufficient to find out the legal fiction provision of public officials in order to identify what the act prohibiting the general protection part of Article 111 of the Attorney-at-Law Act is, and it is not clear whether it is appropriate to the principle of no punishment without law or not to prohibit further questions as to whether it is the subject of punishment under Article 111 of the Attorney-at-Law Act in accordance with such legal provision.

For this reason, the majority opinion is that Article 111 of the Attorney-at-Law Act should be interpreted more strictly, and specifically, in the application of Article 111 of the Attorney-at-Law Act, where a public official is deemed a public official in the case of applying criminal punishment provisions, which are generally applicable to the case or affairs handled by a person who is not a public official, the case or affairs handled by the public official shall be subject to criminal punishment generally in the case or affairs handled by the public official and shall be subject to criminal punishment in the case or affairs handled by the public official, and it shall be limited to cases where the scope of the subject of criminal punishment under Article 111 of the Attorney-at-Law Act can be clearly confirmed. And I think this interpretation is not close to the interpretation of constitutional consistency.

C. The legislative intent of Article 111 of the Attorney-at-Law Act, cited by the Dissenting Opinion, cannot be referred to as the same.

In the interpretation of penal provisions, the opinion of the previous Supreme Court precedents that do not exclude the teleological interpretation in light of the legislative intent and purpose, legislative history, etc. of the relevant law does not necessarily mean that the majority opinion does not have different thoughts. The legislative intent should be respected. However, the purport of the legislation ought to be “to the extent that does not exceed the ordinary meaning of the text of the law” as stated in the Supreme Court whenever it comes to the same, the Supreme Court only emphasizes the legislative intent, and the interpretation cannot be substituted by going beyond the ordinary meaning of the text of the law. The legislative intent is only a factor for more concrete and reasonable interpretation on the premise that the ordinary meaning of the text of the law can be confirmed.

First of all, the purport of amending the Attorney-at-Law Act to newly establish the overall title of Article 111 as in the current situation, and it is doubtful whether all cases and affairs handled by its people will be subject to Article 111 of the Attorney-at-Law Act, if there is a provision to be viewed as a public official in an individual statute as in the Dissenting Opinion.

The Dissenting Opinion argues that the establishment of the overall defense at the time of the amendment of the Attorney-at-Law Act would no longer be meaningful if the above-mentioned provision is interpreted limited as the majority opinion. However, as the special law priority principle and the new law priority principle are discussed, there may be an interpretation problem as to which the contents of the general law can be applied to other Acts, and even if the provision provides that "in the application of the penal provisions under the Criminal Act and other Acts, it shall be regarded as public officials," it may be doubtful whether the provision is deemed as public officials only with respect to the penal provisions that public officials are subject to punishment, or if the provision uses the term "public officials" in the penal provisions, it may be questionable as to whether it is the purpose of legal fiction as public officials, or if it uses the term "public officials" in the penal provisions. Therefore, the express provision to prevent dispute over such interpretation is faithful to the principle of no punishment without law, and it cannot be said that it is in violation of the legislative intent of the above overall defense part.

Furthermore, the Dissenting Opinion argues that the amendment of the Attorney-at-Law Act to newly establish the overall title of Article 111 as in the present situation, as well as the purport of the Dissenting Opinion is that even though the act of receiving money and valuables, etc. in the name of solicitation and intermediation, which he handles in consideration of the public nature of the person to be regarded as an individual public official, was intended for punishment under Article 111 of the Attorney-at-Law Act, the phrase “including a person to be regarded as a public official by the Act and subordinate statutes” in the above general title cannot be deemed to be very insufficient for clearly revealing such legislative intent.

If the legislative intent of the legislator at the time of the revision of the Attorney-at-Law Act and the establishment of the general part of Article 111 (1) was to be recognized as a public official under Article 11 (1) of the Attorney-at-Law Act, the contents of the provision of Article 129 (1) of the Attorney-at-Law at the time include a type of “the public official shall be deemed to be a public official in the application of Articles 129 through 132 of the Criminal Act” and “the person shall be deemed to be a public official in the application of the penal provisions under the Criminal Act and other Acts and subordinate statutes,” so the legislative person should not be deemed to be the same as the above general part at least, but rather, for example, for the purpose of applying the penal provisions under the Criminal Act and other Acts and subordinate statutes, the case and affairs handled by the person to be treated as a public official shall be deemed to be the case and affairs handled

According to the Dissenting Opinion, the legislative method of the above-mentioned part is appropriate in light of the principle of clarity, which is the derived principle of the principle of no punishment without the law, and there is a difference in view of the view that the legislative purpose of the above-mentioned part is not unreasonable and unclear. However, as long as the legislators take inappropriate and unclear legislative method to bring about an issue of interpretation, it cannot be deemed as a genuine legislative purpose that gives special meaning to the establishment of the above-mentioned part even after sacrificeing the principle of clarity in the principle of no punishment without the law. Thus, it is believed that there is no reason for unreasonable interpretation by emphasizing only the legislative purport that cannot be easily confirmed from the perspective of the general public in order to give special meaning to the newly establish the above-mentioned part.

D. Finally, I want to emphasize again that the issue of violation of the principle of clarity set out in the principle of no punishment without the law should be determined not by the analysis and review of legal experts, but by the overall height of the general public, who is the criminal who takes into the punishment provision in question.

Even though it is rarely known, the majority opinion and the dissenting opinion regarding the meaning of the overall title of Article 111 of the Attorney-at-Law Act are often divided as mentioned above, it does not mean the uncertainty of the above overall title as a erode, and I express my concurrence with the majority opinion as above.

Chief Justice Lee Yong-chul (Presiding Justice)