[1] The meaning of and criteria for determining “the abuse of authority” in the crime of abusing authority and obstructing another’s exercise of rights

[2] The case affirming the judgment below convicting the Defendant of abuse of official authority and obstruction of another’s exercise of rights in a case where the Defendant, a superintendent of education, promoted or became a person eligible for promotion or qualification training by ordering a school inspector in charge of personnel management, etc.

[3] Whether “person who has the authority to appoint public officials” is included in the subject of the act prohibited under Article 44 of the State Public Officials Act (affirmative)

[4] The case affirming the judgment below convicting the Defendant of violating the State Public Officials Act of violating the State Public Officials Act with the content that the Defendant, a superintendent of education, committed an act of unfairly affecting the promotion of the principal

[1] In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “the abuse of authority” means the case where a public official unlawfully exercises matters belonging to the general authority and authority, namely, the case where the public official appears to perform an act other than the legitimate authority, in a formal and external manner, or the substance thereof. The criteria for determining whether an abuse constitutes the abuse of authority shall be determined by taking into account all the factors such as the specific public official’s act of performing his/her duties, necessity and reasonableness when considering the circumstances where the act was committed, and whether the exercise of authority and obstructing another’s exercise of rights satisfies the statutory requirements that allow the exercise of authority. In addition, the term “when a public official makes another person perform a non-obligatory act” refers to the case where a public official makes another person perform a non-obligatory act with regard to matters belonging to his/her authority and authority, even if a public official acts a fact that assisting the performance of his/her duties, which would result in the performance of his/her official’s duties. However, in principle, the standards and procedures for performing his/her duties are specifically specified and applicable, and if the case where the person is granted a person.

[2] The case affirming the judgment below which found the defendant guilty of abuse of authority and obstruction of another’s exercise of rights against the defendant on the ground that, in case where the defendant, who is the superintendent of the Seoul Metropolitan Office of Education, instructed a school inspector in charge of personnel affairs, etc. to recommend a specific teacher who is not eligible for promotion or qualification training on the list of candidates as qualified candidates, or promoted him by arbitrarily adjusting the rating point, the right to personnel management for the public educational officials belonging to the Seoul Metropolitan Office of Education belongs to the general duties and authority of the defendant, who is the superintendent of education, but if the defendant committed the above act in violation of the Acts and subordinate statutes for the purpose of promoting the person to be promoted after a specific person to be promoted, his actual act constitutes abuse of authority since he is deemed to be an unfair act entrusted to exercise his duties beyond the legitimate authority, and that the school inspector or school inspector in charge of personnel affairs in violation

[3] In light of the purpose of the enactment of the above Act and the principle on appointment of public officials under Articles 1 and 26 of the State Public Officials Act, it is reasonable to interpret that Article 44 of the same Act does not only apply to the case where a person other than the appointing authority intends to protect a person from any person other than the appointing authority so as not to obstruct or unfairly influence the appointment of public officials, but also to protect the fairness of the public official examination and appointment system, which serves as the basis for the personnel administration of state public officials, from all persons including the appointing authority, including the appointing authority. It is also true in light of the literal interpretation of Article 84 of the same Act, which provides that "no person shall perform any act without permission." Therefore, even if the appointing authority is in violation of

[4] The case affirming the judgment below convicting the Defendant of violating the State Public Officials Act of violating the provisions of Article 44 of the State Public Officials Act with the content that the Defendant, who is the superintendent of education, committed an act unfairly affecting the promotion of the principal, school inspector, educational research official, etc.

[1] Article 123 of the Criminal Act / [2] Article 123 of the Criminal Act, Article 14 (2) of the Public Educational Officials Act, Article 14 (1) of the Decree on the Appointment of Education / [3] Articles 1, 26, and 44 of the State Public Officials Act, Article 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010) / [4] Article 44 of the State Public Officials Act, Article 84 of the former State Public Officials Act (Amended by Act No. 10148, Mar. 22, 2010)

[1] Supreme Court Decision 2006Do339 Decided February 22, 2007, Supreme Court Decision 2008Do6950 Decided January 30, 2009 (Gong2009Sang, 279)

Defendant

Defendant

Attorneys Cho Jae-chul et al.

Seoul High Court Decision 2010No1697 decided October 1, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. In relation to the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, “an abuse of authority” means that a public official unlawfully exercises matters belonging to the general authority and authority, namely, where a public official appears to perform an act outside his/her authority, in a formal and external manner, or the substance thereof does an act outside his/her authority. The criteria for determining whether an abuse constitutes a specific public official’s act of performing his/her duties should be determined by taking into account all the elements, such as the purpose of the act, necessity and reasonableness of the act of performing his/her duties, whether the act of performing the duties at the time of the occurrence of the act of abusing authority and obstructing another’s exercise of rights and duties, and whether the act of abusing authority and obstructing another’s exercise of rights and duties satisfies the legal requirements that permit the exercise of authority and duties. In addition, the term “when a public official causes a person to perform an act of assisting the performance of his/her duties” refers to the case where a public official has a person in charge of performing his/her duties and, in principle, it cannot be deemed “when performing duties”.

According to evidence duly examined by the lower court and the lower court, the principal of the Office of Education or the senior inspector, etc. is delegated and re-entrusted by the President and the Minister of Education pursuant to the Public Educational Officials Act and subordinate statutes, and the standards and procedures for promotion are specified in detail. In particular, Article 14(2) of the Public Educational Officials Act provides that “in the case of promotion of public educational officials, the promotion of public educational officials shall be made within three times the number of vacant positions in the order of high priority in the list of candidates for promotion, or shall be recommended to be promoted within three times the number of such vacant positions” and Article 14(1) of the Public Educational Officials Act provides that the same provision is stipulated in Article 14(1) of the Public Educational Officials Act. The Defendant, who is the Seoul Special Metropolitan City superintendent of education, ordered the senior inspector in charge of middle and that Nonindicted 1 be promoted to the specific person who is not within three times the list of candidates for promotion, and Nonindicted 2 is present at the Seoul Special Metropolitan City Personnel Committee for Qualification and Innovation in the name of the Seoul Special Metropolitan City Office of Education.”

According to the above legal principles and facts, the right of personnel management for public educational officials belonging to the Seoul Special Metropolitan City Office of Education is a matter belonging to the general authority and authority of the defendant, who is the superintendent of education. However, if the defendant committed the above act in violation of the law for the purpose of promoting the person to be promoted after a specific person to be promoted, the substance of the act is an unfair act beyond the legitimate authority and thereby constitutes abuse of authority. Moreover, if the defendant had a school inspector or school inspector in charge of personnel affairs perform an act contrary to the law and has him/her perform the above act in violation of the law, it is nothing more than that of assisting him/her in the exercise of his/her personnel rights.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the elements for establishment of abuse of rights.

2. Article 44 of the State Public Officials Act provides, “No person shall intentionally interfere with, or exert any undue influence on, any examination or appointment.” Article 1 of the State Public Officials Act provides, “The purpose of this Act is to establish the fundamental criteria for personnel administration applicable to all state public officials working at each government agency, thereby achieving the fairness thereof, and to ensure the democratic and efficient operation of administration as servants of all citizens.” Article 26 of the State Public Officials Act provides, “The appointment of public officials shall be made based on examination results, work performance, and other capabilities demonstration,” and the principle on the appointment of public officials, Article 44 of the State Public Officials Act provides that “In light of the purpose of the enactment of the State Public Officials Act and the principle on the appointment of public officials, Article 44 of the State Public Officials Act does not provide that a person other than the appointing authority should not prevent any interference with, or unfair influence on, the appointment of public officials to all persons including the appointing authority, who are the basis for the personnel administration of state public officials, and that a person who violates Article 44 of the State Public Officials Act shall not be punished.”

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles on the interpretation of Article 44 of the State Public Officials Act

In addition, according to the evidence duly examined by the court below and the court below, it is just to acknowledge the fact that the court below ordered the defendant to promote the non-indicted 6 and 7 to the non-indicted 3, and judged that the non-indicted 3 was aware that he was exercising his unfair influence at the time when the defendant ordered the promotion of the non-indicted 8 and the non-indicted 9 to the non-indicted 3 in light of the defendant's position and career as the superintendent of education

3. The Defendant appealed to the remaining guilty portion of the judgment below, but there is no indication in the petition of appeal as to the grounds of appeal and no statement in the statement of grounds of appeal as to the grounds of appeal.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)