Hello, I’m Attorney Eom Sang-yoon of Cheongchul Law Firm.

In corporate criminal cases, not only the corporation but also individual executives and employees are very often investigated together. In this process, related materials may be deleted or concealed, and such acts can result in separate indictments by investigative authorities on charges of ‘destruction of evidence’ or ‘solicitation of destruction of evidence.’

Recently, the Supreme Court (Decision 2024Do15728, rendered on Jan. 15, 2026) presented standards for the requirements for establishing solicitation of destruction of evidence in cases where an executive or employee who may be punished under the joint punishment provision solicited destruction of evidence. Today, we will look at the key points of this decision and the implications to consider in corporate legal practice.

[Overview of the Case and Issues]

The defendants, executives and employees of a major domestic conglomerate, were indicted on charges of ordering and carrying out the deletion or concealment of materials and emails related to partner companies when they came under investigation by the Fair Trade Commission for violations of the Act on the Fairness of Subcontracting Transactions (hereinafter, the ‘Subcontract Act’), specifically destruction of evidence and solicitation of destruction of evidence.

Article 155(1) of the Criminal Act defines destruction of evidence as occurring when one destroys evidence relating to the "another person's criminal case". Accordingly, destroying evidence related to one’s own criminal case by oneself, or “soliciting” another person to destroy it on one’s behalf, is in principle not punishable.

The key issue in this case is whether, if the defendants could have been punished together with the corporation under the joint punishment provision for violating the Subcontract Act, the destroyed evidence can be regarded not as evidence of “another person” but as evidence relating to their “own” criminal case.

[The Supreme Court’s Decision]

The lower court found the defendants guilty, viewing their conduct as destruction of evidence relating to the criminal case of the “corporation (company).” However, the Supreme Court held that the lower court had failed to examine whether the defendants, under the joint punishment provision, had destroyed materials that could constitute evidence for their own benefit, and therefore quashed the guilty judgment and remanded the case to the lower court. The main points of the Supreme Court’s reasoning are as follows.

① A joint punishment provision such as Article 31 of the Subcontract Act stipulates that if a corporation’s representative or executives/employees commit a violation in connection with their duties, the "actor" himself is also punished. If the executive or employee who destroyed the evidence was substantially involved in the violation and could be subject to punishment under the joint punishment provision, then the evidence he deleted would amount to evidence concerning "his own criminal case", and destruction of evidence or solicitation of destruction of evidence may not be established.

② The same applies even where the destroyed evidence is "common evidence" that also serves as evidence in the criminal case of the corporation (company) or another co-defendant. The Supreme Court held that "if the evidence is also evidence concerning the defendant’s own criminal case, then even if it is simultaneously evidence in another person’s criminal case, the act of destroying it or soliciting another person to destroy it cannot be punished".

③ On this premise, the Supreme Court found that further review was needed as to whether the defendants’ conduct amounted to destruction of evidence. It had to be carefully determined whether the defendants merely issued instructions by virtue of their positions, or whether they actually participated in the execution of the Subcontract Act violation and thus qualified as "actors" subject to the joint punishment provision; the lower court’s examination on this point was insufficient.

[Practical Implications]

Many laws targeting corporations, such as fair trade laws, include joint punishment provisions. From the stage of the initiation of an investigation, it is advisable to respond by reviewing the legal status not only of the corporation but also of the relevant executives and employees. If the company is investigated as a suspect, an internal investigation should be used to quickly identify which employees were involved in the actual work process and determine the scope of that employee’s right of defense.

Furthermore, it must be clearly recognized that this line of cases does not give corporate executives and employees a free pass for destroying evidence. The Supreme Court’s decision above does not mean that destruction of evidence by executives or employees can never be punished; it means that there must be sufficient review of whether the conduct concerns "another person’s criminal case". If the conduct goes beyond the scope of the right of defense, such as deceiving investigative authorities by deceptive means, it may be difficult to avoid punishment.