False Performance of Duties and Waiver of Duties

A public official under the latter part of Article 122 of the Criminal Act abandons his duties without any justifiable reason shall not constitute a crime of abandonment of duties in a case where the public official neglects his duties without any justifiable reason or gives up his duties.

Article 122 of the Criminal Act

Seoul High Court Decision 79Do31 delivered on February 26, 1980, 79Do31 delivered on February 26, 198 (Weak II Article 122(1) of the Criminal Code, Article 122(1)12 of the Criminal Code, Article 28B-26, Article 6429

Defendant 1 and two others

Prosecutor and Defendants

Seoul Criminal District Court (79Gohap425)

Of the judgment of the court below, the part against the defendant 2 and 3 shall be reversed.

Defendant 2 and 3 shall be punished by a fine of 200,000 won.

When Defendant 2 and 3 fail to pay the above fine, each amount of KRW 3,000 shall be confined in a workhouse for a period converted into one day.

As to the defendant 2 and 3, 55 days of detention days prior to the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

All of the appeals filed by the prosecutor and the defendant 1 are dismissed.

Although the gist of defendant 2 and 3's appeal does not include the above defendants' extraction of aggregate in excess of permitted quantity of extraction, the court below found the above defendants 1 to have committed an error of mistake that affected the judgment by recognizing the above defendants guilty of facts charged on the part of the above defendants on the ground that the defendant 2 and 3's act of abandonment of duty under the latter part of Article 122 of the Criminal Act constitutes a crime of abandonment of duty as stated in the separate sheet against the defendant 1, unless it is acknowledged that the above defendants had a supervisor engage in surveillance duty like this, without clear evidence. Thus, the court below acknowledged that the above defendants' act of removal of aggregate could not be easily performed by aggregate extraction business, or that the defendant's act of abandonment of duty could not be seen as a crime of abandonment of duty because it did not constitute an objective crime of abandonment of duty, or that the court below did not recognize that the above defendant's act of abandonment of duty constitutes a crime of abandonment of duty as stated in the above 2's order because it did not constitute a crime of abandonment of duty or an objective evidence.

Therefore, in light of the evidence duly examined and adopted by the court below, the above defendants' criminal facts can be sufficiently recognized and the records of the case can not be found in the process of fact-finding of the court below. However, upon ex officio examination, the amount of punishment imposed by the court below against the above defendants is too heavy. Thus, the part of the court below against the above defendants in the judgment of the court below is unfair and cannot be reversed.

The following reasons for appeal by the prosecutor are as follows: (a) a public official under the latter part of Article 122 of the Criminal Act, who abandons his duties without any justifiable reason, refers to the public official's neglecting his duties without any justifiable reason, or waiver of his duties; (b) even if the public official is not in good faith, the crime of abandonment of duties can not be deemed established even if the public official performed his duties; and (c) the public official's act related to his duties constitutes a crime of occupational breach of trust; and thus, (d) it cannot be deemed that the act is also committed. In this case, according to the judgment of the court below, the court below has the awareness that the public official 1, who is an aggregate extraction businessman, 2, and 3, was aware that he will benefit from his own act and thereby bring considerable damage to the National Treasury; (b) although he did not neglect or waive his duties, he obtained the benefit as stated in the judgment of the court below, which led the co-defendant 1, etc. to cause damage to the National Treasury.

According to the records, even if Defendant 1 filed a lawful appeal on December 26, 1979 and received notification of receipt of the records of trial from a party member on February 4, 1980, it is clear that Defendant 1 did not submit the statement of grounds for appeal even if 20 days have passed thereafter, and even if examining the judgment below, it cannot be viewed that there is any reason for ex officio investigation, and it is evident that there is no reason for appeal in the petition of appeal. Thus, the above defendant's appeal constitutes a case where the appeal is dismissed by decision in accordance with the main sentence of Article 361-4 and Article 361-3

Accordingly, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. Defendant 1's appeal is not separately decided but also dismissed in this judgment by applying the above provisions of the law cited above. Of the judgment of the court below, the part concerning Defendant 2 and Defendant 3 is reversed in accordance with Article 364 (2) of the Criminal Procedure Act and it is again decided as follows.

Since the facts charged by Defendants 2 and 3 and the summary of the evidence are the same as the time of original adjudication, they shall be quoted in accordance with Article 369 of the same Act.

The so-called "nomenclature Defendants" in the law refers to Article 81 subparagraph 2 of the River Act (amended by Act No. 2292), Article 25 (1) 6, and Article 30 of the Criminal Act, and so-called "nomenclature Defendants shall be punished by a fine of 200,00 won and the above Defendants shall be punished by a fine of 20,000 won within the limit of the increased amount under Article 4 (5) of the Act on Temporary Measures, such as Fines, etc., and if the above Defendants fail to pay the above fine under Articles 70 and 69 (2) of the Criminal Act, each Defendants shall be detained in a workhouse for the period calculated by converting 3,00 won to one day, and 55 days from the number of detention days prior to the pronouncement of the judgment of the court below by applying Article 57 of the same Act shall be included in the period

It is so decided as per Disposition for the above reasons.

[Attachment List omitted]

Judges Lee Jong-sung (Presiding Judge)