[1] Meaning of “public official”, “public office”, or “electronic records of a public official or public office” as provided in Article 227-2 (Preparation and Alteration of Public Records) of the Criminal Act / Whether an act may be “public official or public office” as provided in the above provision in a case where a principal agent, other than a public official or public office, acts on behalf of a public official or public office under a contract, etc. (negative in principle)

[2] In a case where the Korea Environment Corporation establishes and operates an electronic information processing system, which is the electronic information processing system for the data processing of construction waste transfer and acquisition, entrusted by the Minister of Environment, whether the Korea Environment Corporation’s executive officers and employees performing such duties can be deemed public officials or public officials of the Korea Environment Corporation as public officials (negative) / Whether the Korea Environment Corporation Act, etc. provides that the executive officers and employees of the Korea Environment Corporation shall be deemed public officials in applying Articles 129 through 132 of the Criminal Act (affirmative)

[1] Article 227-2 (Preparation or Alteration of Official Electronic Records) of the Criminal Act provides, “A person who falsifies or alters special media records, such as electronic records, by a public official or public office, for the purpose of causing the performance of duties, shall be punished by imprisonment with prison labor for not more than ten years.” Here, “public official” refers, in principle, to a person who has a status as a public official pursuant to a statute; “public official” refers to a government agency or public office performing duties; “electronic records of a public official or public office” refers to electronic records with the authority of a public official or public office to prepare for duties. Therefore, if the principal agent of such act is not a public official or public office, a public official or public office may not be a public official even if he/she performs some duties related to public duties under a contract, except in cases where it is deemed that a public official or public office is a public official, etc. under the Criminal Act or a special Act.

[2] Article 18(1) main text of the Construction Waste Recycling Promotion Act provides that “A person who discharges, collects, transports, or disposes of construction waste shall enter matters concerning the transfer and acquisition of construction waste into an electronic information processing system pursuant to Article 19(1).” Article 19(1) of the same Act provides that “The Minister of Environment shall establish and operate an electronic information processing system capable of processing information on the transfer and acquisition of construction waste.” Meanwhile, Article 62(2) of the Wastes Control Act, Article 37-2 of the Enforcement Decree of the Wastes Control Act provides that the establishment and operation of an electronic information processing system and the establishment and operation of an electronic information processing system shall be entrusted to the Korea Environment Corporation. The Ministry of Environment, “public notice on the operation, use, etc. of electronic information processing programs, etc.” refers to the Korea Environment Corporation established pursuant to Article 45(1) of the Wastes Control Act, which is the Ministry of Environment, shall establish and operate an electronic information processing system pursuant to Article 19(1)3(1) of the same Act.

However, the Korea Environment Corporation is a corporation established pursuant to the Korea Environment Corporation Act and is not a public official, and its executives and employees are merely deemed public officials when applying the provisions of Articles 129 through 132 of the Criminal Act pursuant to Article 11 of the same Act, Article 61 of the Construction Waste Act, and Article 62-2 of the Wastes Control Act, etc., and there is no express provision to the effect that the Korea Environment Corporation is deemed as a public official who is the authority to prepare public electronic records, or that the electronic records prepared by the Korea Environment Corporation is deemed as a public official with authority to prepare public electronic records, such as public electronic records

In light of such legal principles, even if the Korea Environment Corporation establishes and operates an electronic information processing system, which is an electronic information processing system for the computer processing of the details, etc. of the transfer and acquisition of construction waste, upon entrustment by the Minister of Environment, the Korea Environment Corporation’s executive officers and employees performing such duties shall not be deemed as public officials with authority to prepare public electronic records or as public officials of the Korea Environment Corporation. Furthermore, the Korea Environment Corporation Act, etc. provides that the executive officers and employees of the Korea Environment Corporation shall be deemed public officials in applying Articles 129 through 132 of the Criminal Act, deeming that such executive officers and employees or public offices are public officials or public offices prescribed in Article 227-2 of the Criminal Act, is contrary to the principle of no punishment without law, because it expands or analogicals criminal laws to the disadvantage of the defendant. This is the same as that the Korea Environment Corporation or its executive officers and employees

[1] Article 12(1) of the Constitution, Articles 1(1) and 227-2 of the Criminal Act / [2] Article 12(1) of the Constitution of the Republic of Korea, Articles 1(1), 129, 130, 131, 132, and 227-2 of the Criminal Act, Articles 18(1), 19(1), and 61 of the Construction Waste Recycling Promotion Act, Articles 18(3), 45(1), 62(2), and 62-2 of the Wastes Control Act, Article 37-2 of the Enforcement Decree of the Wastes Control Act, Article 11 of the Korea Environment Corporation Act

[1] Supreme Court Decision 2015Do9133 Decided January 14, 2016 Supreme Court Decision 2015Do9772 Decided April 15, 2016

Defendant

Defendant

Attorney Ansan-il et al.

Seoul Eastern District Court Decision 2016No1041 decided November 4, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul Eastern District Court.

Judgment ex officio is made.

1. Of the facts charged against the Defendant, the summary of the crime of perjury, such as public electronic records, and the crime of uttering, such as an electronic records, among the following facts: (a) Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and the waste collection and transportation business entity operated by Defendant Co-Defendant 1 (hereinafter “Nonindicted Co-Defendant 2”) in the lower court’s construction waste interim disposal business entity, are awarded a contract for construction waste collection, transportation, and disposal services; and (b) Nonindicted Co. 2, Ltd. (hereinafter “Nonindicted Co-Defendant 2”) have been re-entrusted to Nonindicted Co-Defendant 3 for disposal of construction waste disposal services that should have been performed by Nonindicted Co-Defendant 1, but the Defendant Co-Defendant 1 in collusion with the Defendant and Co-Defendant 1 in collusion with the Defendant to have a waste collection, transportation, or disposal business entity enter the contents of waste delivery and disposal, thereby entering false information into the electronic information processing system, which was established and operated by the Korea Environment Corporation, and subsequently exercising the electronic records of public offices.

2. The first instance court found the Defendant guilty of this part of the charges on this part, on the following grounds: (a) the foregoing system was electronic records prepared by the Korea Environment Corporation, a public office, in the course of performing its duties; and (b) the Defendant created electronic records against the intent of the Korea Environment Corporation by abusing its authority under the Construction Waste Recycling Promotion Act (hereinafter “Construction Waste Act”) and the Enforcement Decree of the same Act by entering false information by abusing its authority under the Korea Environment Corporation’s authority to enter information; and (c) the Defendant also convicted of this part of the charges.

3. Article 227-2 (Preparation or Alteration of Public Records) of the Criminal Act provides, “A public official shall be punished by imprisonment with prison labor for not more than ten years, for the purpose of causing the handling of affairs.” The term “public official” means, in principle, a person who has a status as a public official pursuant to a statute; “public official” means a government agency or institution performing public official’s duties; and “electronic records of public officials or public offices” means electronic records with the authority of a public official or public office to prepare for the performance of his/her duties. Therefore, if the principal agent is not a public official or public office, a public official or public office may not be deemed a public official even if he/she performs some duties related to public duties under a contract, etc., except where such act is deemed a public official or public office under the Criminal Act or special Act. It is against the principle of no punishment without prison labor (see, e.g., Supreme Court Decisions 2015Do9133, Jan. 14, 2016; 2015Do727).

The main text of Article 18(1) of the Construction Waste Act provides that “A person who discharges, collects, transports, or disposes of construction waste shall enter matters concerning the transfer and takeover of construction waste into an electronic information processing system pursuant to Article 19(1).” Article 19(1) of the same Act provides that “The Minister of Environment shall establish and operate an electronic information processing system capable of processing information on the transfer and takeover of construction waste.” Meanwhile, Article 62(2) of the Wastes Control Act and Article 37-2 of the Enforcement Decree of the same Act provide that the establishment and operation of an electronic information processing system and the establishment and operation of an electronic information processing system shall be entrusted to the Korea Environment Corporation. The Ministry of Environment, a public announcement of the operation, use, etc. of electronic information processing programs, refers to the Korea Environment Corporation established pursuant to the Korea Environment Corporation Act (Article 45(1) and the Korea Environment Corporation established and operated the electronic information processing system as the head of the electronic information processing system pursuant to Article 18(1)3(1) of the Wastes Control Act, etc.

However, the Korea Environment Corporation is a corporation established pursuant to the Korea Environment Corporation Act and is not a public official, and its executives and employees are merely deemed public officials when applying the provisions of Articles 129 through 132 of the Criminal Act pursuant to Article 11 of the same Act, Article 61 of the Construction Waste Act, and Article 62-2 of the Wastes Control Act, etc., and there is no express provision to the effect that the Korea Environment Corporation is deemed as a public official who is the authority to prepare public electronic records, or that the electronic records prepared by the Korea Environment Corporation is deemed as a public official with authority to prepare public electronic records, such as public electronic records.

Examining these relevant laws and regulations in light of the aforementioned legal principles, even if the Korea Environment Corporation establishes and operates an electronic information processing system, which is an electronic information processing system for the computer processing of the details, etc. of the transfer and takeover of construction waste, under the entrustment of the Minister of Environment, the Korea Environment Corporation cannot be deemed as a public official with authority to prepare public records or as a public official with the Korea Environment Corporation, who is a public official with authority to do so. Furthermore, deeming that the Korea Environment Corporation Act, etc. provides that the executives and employees of the Korea Environment Corporation shall be regarded as public officials in the application of Articles 129 through 132 of the Criminal Act, as well as public officials or public offices under Article 227-2 of the Criminal Act, to be regarded as public officials or public offices performing their duties, is contrary to the principle of no punishment without law, since penal provisions are expanded or analogically interpreted to the disadvantage of the Defendant, and thus

4. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, which erred by misapprehending the legal doctrine regarding the meaning of public officials or public offices in the event crime, such as an electronic record, and an electronic record, thereby adversely affecting the conclusion of the judgment.

5. Therefore, among the judgment of the court below, the part of the crime of uttering, such as an electronic document recording against the defendant and an electronic document recording, should be reversed for the above reasons. However, since the above reversed part is in a concurrent relationship with the remaining part of the judgment of the court below as to the defendant under Article 37 of the Criminal Act, the part of the judgment of the court below

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

Justices Park Jung-hwa (Presiding Justice)