[배임수재][미간행]
In cases where the effect of prosecution can be denied in light of the exercise of prosecutor's discretionary power in prosecution based on the principle of prosecution convenience / The exercise of prosecutor's discretionary power in prosecution can be denied.
Article 51 of the Criminal Act, Articles 246, 247, and 327 subparag. 2 of the Criminal Procedure Act
Supreme Court Decision 2001Do3026 Decided September 7, 2001 (Gong2001Ha, 2213), Supreme Court Decision 2007Do9737 Decided February 14, 2008, Supreme Court Decision 2010Do9349 Decided July 12, 2012, Supreme Court Decision 2017Do1623 Decided December 13, 2017
Defendant
Defendant
Law Firm LLC et al.
Seoul High Court Decision 2016No424 decided August 23, 2018
The appeal is dismissed.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the assertion of abuse of power to prosecute
A public prosecutor may institute a public prosecution where it is deemed reasonable to impose criminal sanctions on the grounds of the constituent elements of a crime, and may not institute a public prosecution in consideration of the matters under Article 51 of the Criminal Act (Articles 246 and 247 of the Criminal Procedure Act). In a case where the public prosecutor appears to have remarkably deviates from the discretionary power by arbitrarily exercising the authority to institute a public prosecution and giving substantial disadvantages to the defendant, the effect of the public prosecution may be denied by regarding it as abuse of the authority to institute a public prosecution. Here, the arbitrary exercise of the authority to institute a public prosecution is not sufficient simply by negligence in the course of performing his/her duties, and at least by dolusium (see, e.g., Supreme Court Decisions 2007Do9737, Feb. 14, 2008; 2010Do9349, Jul. 12, 2012).
The lower court determined that it was difficult to view that the prosecution of this case by the prosecutor who first prosecuted part of the facts charged in the instant case and additionally prosecuted the remainder three months after the lapse of the three months was significantly deviating from the right of prosecution discretion. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no
2. As to the remaining grounds of appeal
On the grounds indicated in its reasoning, the lower court convicted the Defendant of the instant facts charged (excluding the part not guilty in the grounds of appeal). Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the principle of substantial direct examination or court-oriented trials
3. Conclusion
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-hee (Presiding Justice)