Defendant 1 and one other

Both parties

Revised pencs, and ever-defunct types of public trials

Law Firm International et al.

Busan District Court Decision 2018Dadan419 decided February 20, 2019

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1 (Fact-finding, Violation of law, unreasonable sentencing)

There is no intention of abuse of authority because it is merely an expression of opinion as the head of a local government upon the request of the personnel committee. There is no causal relationship between the recommending act and the resolution of the personnel committee because it is not exercising influence over the personnel committee.

B. Defendant 2 (Fact-finding, Violation of law, unreasonable sentencing)

The constitutional authority and duties do not constitute a constituent element of the crime of abusing authority and obstructing another’s exercise of rights. There is no causal relationship between the recommending act and the resolution of the personnel committee. In light of ordinary business operations, the determination of punishment (5 million won) is unreasonable.

C. Prosecutor (Factual error, violation of law, unreasonable sentencing)

A person who is not eligible for deliberation by changing the number of persons scheduled for promotion without any reasonable reason to be deliberated on by a person eligible for deliberation by the personnel committee for promotion shall interfere with the performance of duties by the personnel committee for the promotion resolution. A person who stated the request for prior deliberation and deliberation materials distributed to members of the personnel committee even though there are 16 persons scheduled for promotion as if there were 17 persons from the beginning constitutes a false statement of facts constituting the premise for the application of statutes. Determination of punishment against the Defendants is unreasonable.

2. Determination

A. Judgment on mistake of facts and violation of law

1) Judgment on the defendants' misconception of facts and the assertion of violation of law

Defendant 1 knew on July 21, 2015 that the number of persons scheduled to be promoted to Grade 5 was 16 prior to the personnel announcement. Nevertheless, without any ground, Defendant 2 instructed Defendant 2 to increase the number of persons scheduled to be promoted to Grade 5, and ordered Defendant 2 to designate 17 persons, including Nonindicted 3, as persons eligible to be promoted and to recommend them to the personnel committee as stated in the other statutory interpretation and report only several hours. The illegally calculated number of persons scheduled to be promoted is deemed to have abused authority to direct and supervise the personnel affairs of local public officials by abusing authority. Defendant 1 is recognized to have intentionally abused the personnel committee’s authority to direct and supervise the personnel affairs of local public officials. Defendant 2 knew that Defendant 1’s order to increase the number of persons scheduled to be promoted violates the pre-announcement of personnel affairs without any reasonable ground. Nevertheless, Defendant 1’s order to comply with Defendant 1’s order, prepared scenarios, and assigned Defendant 2 to Nonindicted 1 and Nonindicted 2 the chairman of the personnel committee to the executive secretary.

Although it is inappropriate for the lower court to have stated that the act of ordering the person having personnel committee to recommend promotion itself is abuse of authority, the act of illegally calculating the number of persons expected to be promoted to promote a specific person and ordering that person to be promoted constitutes the crime of abusing authority and obstructing another’s exercise of rights, which constitutes the crime of abusing authority and obstructing another’s exercise of rights, thereby constituting the crime of abusing authority and obstructing another’s exercise of rights. Accordingly, the lower court’s determination is justifiable. In so doing, it did not err by misapprehending the facts in the lower judgment that

2) Determination of the prosecutor's misconception of facts and legal violation assertion

A) Determination on the obstruction of performance of official duties by fraudulent means

According to Articles 6, 8, and 26 of the Local Public Officials Act, Articles 38, and 38-5 of the Decree on the Appointment of Local Public Officials, the personnel committee for promotion to Grade 5 public officials has the authority to decide on promotion for persons subject to promotion requested by the appointing authority, but does not have the authority to examine and decide whether the number of persons subject to promotion requested by the appointing authority is appropriate. A prosecutor pointed out that a prosecutor requires the appointment authority to make a decision on promotion based on the number of persons to be promoted illegally calculated. However, this is merely a series of acts abusing official authority by allowing the personnel committee to perform an act without any obligation and do not interfere with the execution of official duties by the personnel committee by fraudulent means (see, e.g., Supreme Court Decision 2016Do18858, May 30, 2017). The judgment of the court below which acquitted the Defendants of the charges of obstruction of the performance of official duties by fraudulent means, or

B) Determination as to the preparation of false official documents and the display of false official documents

In the process of calculating and recording the number of promotioned persons in Grade V in the request for preliminary deliberation and the deliberation materials, the fact of the premise for calculating the number of promotionable persons was not falsely stated. The illegality of calculating the number of promotionable persons is not the same as the case where a statement contrary to the truth of the official document is made. There is no error of misapprehending the facts in the judgment of the court below which acquitted the Defendants on the charge of preparing false official document or uttering of false official document, or in violation of the Act, which affected the conclusion

B. Determination on the assertion of unfair sentencing

While considering the fact that Defendant 1 independently determines the public official to be promoted and the fact that Defendant 2 carried out the illegal instructions of Defendant 1 without considering reflective results, the court below determined the punishment in consideration of the fact that the illegality of the act in this case is not clear externally due to the customary aspect, and thus, it can have sufficient warning effects, such as the prevention of recidivism, and that it does not commit a crime for personal interests. The judgment of the court below is sufficiently acceptable, and there is no change in sentencing in the appellate court. The determination of the sentencing of the court below is not unreasonable. The determination of the court below is sufficiently acceptable, and there is no change in sentencing in the appellate court. It is not deemed unjust because the

3. Conclusion

The appeal by the Defendants and the public prosecutor is without merit. All appeals by the Defendants are dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Judges Ba-dae (Presiding Judge)