(영문) 헌재 2011. 9. 6. 선고 2011헌마445 결정문 [공권력행사 위헌확인]

[결정문] [지정재판부]


2011Hunma45 unconstitutionality of the exercise of governmental power


Park ○-man


Prosecutor of the Suwon District Prosecutors' Office


The appeal of this case is dismissed.


1. Case summary

A. On March 28, 2010, the petitioner was indicted for committing an injury to the Red ○○ Office other than the claim (Article 24325) and was sentenced to a fine of KRW 1,00,00 at the Suwon District Court on December 15, 2010. The petitioner appealed (Article 2010No6268 of the Suwon District Court), but the petitioner appealed (Article 2011Do5929), and again appealed to the Supreme Court (Article 201Do5929), and the final judgment became final and conclusive on July 28, 2011.

B. The claimant's right to pursue happiness and the right to equality were infringed by the claimant's failure to summon the prosecutor of the Suwon District Prosecutors' Office to conduct an investigation and summon the petitioner.

On August 11, 2011, the Constitutional complaint of this case was claimed.

2. Determination:

In general, a person who is infringed on fundamental rights guaranteed by the Constitution due to the exercise or non-exercise of public power can file an adjudication on constitutional complaint in accordance with Article 68(1) of the Constitutional Court Act.

However, even according to the provisions of the Constitution, the Criminal Procedure Act and other Acts, it cannot be said that a criminal suspect has a right to request an investigation agency to investigate by any specific method of evidence (see Constitutional Court Decision 2006HunMa602, May 30, 2006; Constitutional Court Decision 2010HunMa5, Jan. 26, 2010). Thus, the act of a prosecutor summonsing only non-request red ○○ok to investigate in the course of the investigation of a claimant and summonsing the claimant and not investigating it does not constitute an exercise of public authority which is the object of

Therefore, the appeal filed by the public prosecutor on the part of the investigation act of this case is unlawful as a claim against the non-subject matter of adjudication on constitutional complaint.

3. Conclusion

Therefore, the appeal of this case is unlawful and its defects cannot be corrected, and it is so decided as per Disposition by the assent of all participating Justices on the bench, by rejecting it pursuant to Article 72 (3) 4 of the Constitutional Court Act.

September 6, 2011


The presiding judge shall transfer the judge.

Justices Kim Jong-dae

Movement of Justices