[2] Whether the decision of non-prosecution contained in the non-prosecution disposition record kept by the prosecutor's office is subject to perusal and designation of the counsel (affirmative in principle)

[3] The measures to be taken by the court when the court refuses the defendant's request for inspection, designation or the court's request without justifiable grounds, even though the documents requested by the public offices, etc. are likely to support the defendant's innocence or at least important evidence that could have different convictions against the judge's convictions or acquittals

[2] A written decision of non-prosecution which is included in the records of non-prosecution disposition kept by the prosecutor's office is a document stating the prosecutor's disposition results and reasons for the completion of the investigation against the criminal suspect, in light of the purpose and nature of the preparation, etc., it is not a document related to the matters in the investigation agency's internal decision-making process or examination process, but it is not significantly difficult for the prosecutor to perform his/her duties concerning the investigation. Thus, barring any special

[3] The refusal of a court’s request for the inspection, designation, or delivery of documents requested by the court under Article 272(1) of the Criminal Procedure Act constitutes important evidence that can support the defendant’s innocence or at least the judge’s conviction, and thus seriously infringes on the defendant’s right to prompt and fair trial and the right to counsel’s assistance. Therefore, in such a case, the court that requested the delivery of documents may clarify the contents of the relevant documents to the extent possible and it is highly probable that the submission of documents would affect the judgment of guilt or innocence, the facts charged shall not be deemed proven without reasonable doubt.

A. As to the assertion that Defendant 1, 2, and 3 violated the principle of due process under the Constitution

(1) Article 272(1) of the Criminal Procedure Act provides that “The court may ask any public office, or public or private organization upon the request of a public prosecutor, the defendant, or his/her defense counsel, to make a report on necessary matters or to send preserved documents.” Meanwhile, according to Article 132-4 of the Regulation on Criminal Procedure, where the court adopts a request for delivery of preserved documents, it may require the court, public prosecutor’s office, other public offices, or public or private organizations keeping the relevant documents to send a certified copy of the part designated by the applicant or defense counsel out of the relevant documents (Article 2(2)). A public office, etc. in receipt of the said request shall allow the applicant or defense counsel to allow him/her to inspect the relevant documents, and shall not refuse to cooperate therein without justifiable grounds (Article 132-4).

As above, allowing a court to allow a perusal and designation of documents requested by a defense counsel, etc. is for the defense of the defendant and the exercise of the right to defense for the defense of the defense counsel, thereby securing substantive equality between the parties and realizing the right to a prompt and fair trial of the defendant. Accordingly, “justifiable cause” which may refuse to allow a perusal and designation of the documents is strictly limited and interpreted. In particular, if the documents are related to the legal and factual assertion of the defendant or his/her defense counsel, such as the relevant criminal trial final and conclusive records or non-prosecution disposition records, etc., a justifiable reason for refusing perusal and designation can be acknowledged only when there is a reason corresponding to “national security, necessity for the protection of witnesses, concern of destruction of evidence, and specific reasons anticipated to obstruct the investigation into related cases” (see Article 266-3(1)4 and (2) of the Criminal Procedure Act).

On the other hand, a written decision of non-prosecution which is included in the records of non-prosecution disposition taken by the prosecutor's office shall be a document stating the results and reasons of the prosecutor's disposition to close the investigation of the criminal suspect, and in light of its purpose and character, etc., it shall not be a document concerning the matters in the internal decision-making process or examination process of the investigation agency, nor shall it make it considerably difficult for the prosecutor to perform his/her duties concerning the investigation. Thus, barring any special circumstances,

In addition, a court’s refusal of a request for the perusal, designation, or delivery of documents requested pursuant to Article 272(1) of the Criminal Procedure Act, without justifiable grounds, may support the defendant’s innocence or at least an important evidence that may have different convictions against the judge’s convictions or acquittals, would seriously infringe the defendant’s right to prompt and fair trial and the right to counsel’s assistance. Therefore, in such a case, if the court that requested the delivery of documents finds the contents of the documents to the extent possible and it is highly probable that the documents would affect the judgment of innocences or innocences, the facts charged should not be deemed proven without reasonable doubt.

(2) According to the records, on October 28, 201, when the court below was pending, Defendant 1, 2, and 3's defense counsel filed an application for non-prosecution decision against 12 persons including non-indicted 1, etc. and a request for a certified copy of non-prosecution decision to send certified copies to the above branch office after adopting the above application, but the above branch office rejected the request for delivery or the designation of defense counsel on the grounds that each of the above non-prosecution decision forms an internal document of an investigative agency on December 2, 201, and thus constitutes an internal document of an investigation agency.

(3) In light of the aforementioned legal principles, the refusal of a court’s request for delivery or inspection or designation of counsel by the head of the Suwon District Prosecutors’ Office, which keeps the written decision of non-prosecutions in custody, on the grounds that they are internal documents of an investigation agency, does not constitute “a situation in which it is impossible to comply with any other request for delivery” under Article 132-4(3) of the Regulations

However, as a document stating the prosecutor’s decision and opinion on the facts and legal issues of the case to be prosecuted, it cannot be said that it has no binding effect on the fact-finding of the criminal organization at issue in this case, and that it directly affects it. In addition, in light of the record, in the case of this case, Nonindicted 1 appeared as a witness in the first instance trial, and there was a reduction without any true statement as to the part of the order of Defendant 4 to commit the crime when he was investigated by the investigative agency in relation to ○○○ wave in 2003, and Defendant 4 did not make a true statement as to the part of the order by Defendant 1. Nonindicted 1’s prior name was omitted, and only talked with his subordinate employees. Nonindicted 1 testified to the effect that it was stated as if it was an independent and contingent case. Thus, it is difficult to view that the non-prosecution decision on indictment against 12 persons, such as Nonindicted 1, etc., could support the establishment and activities of the organization, etc., or that it constitutes considerable evidence of judge at least.

In addition, in the case of Nonindicted 2, from February 2006, it appears that the so-called president meeting of ○○○ branch from around February 2, 2006 attended temporarily in connection with the support for local elections. However, according to the statement of Nonindicted 3 and 4 duly adopted by the court below, the above president’s meeting discussed the method of terrorism against Nonindicted 5, the leader of △△△△△△△△△△△△△△△△△△△△△, in addition to the support for local elections, or discussed various measures to deal with interest in the usual region, and most important decision-making of ○○○○○ branch was delivered in order to the subordinate staff through the president’s meeting at the direction of Defendant 1. Accordingly, even if the above non-prosecution decision-making letter on indictment stated that Nonindicted 2 was not a criminal organization, it is difficult to view that the above non-prosecution decision-making decision-making can support the innocence of the above Defendants’ violation of the Punishment of Violences, etc. Act (the composition and activities of organizations, etc.), at least, etc.) or there is considerable possibility of conviction of judges.

(4) Therefore, even if the horizontal Housing Site Office of the Suwon District Prosecutors' Office illegally did not comply with the inspection and designation of the counsel on the decision of non-prosecution of each of the above indictments without justifiable grounds, considering the nature and contents of the documents, and the relevant facts acknowledged by the court below after the examination of evidence, etc., it cannot be said that there is considerable probability that the right to a prompt and fair trial of the defendant and the right to assistance of the counsel would be seriously infringed upon by the measures of the above prosecutor's office, and it would affect the determination of innocence or innocence of the facts charged in this case. Therefore, the grounds for appeal alleged by the above defendants cannot be deemed to constitute "when there is a violation of the Constitution, Acts or regulations affecting the judgment"

B. As to Defendant 1’s violation of the Punishment of Violences, etc. Act (a collective action, deadly weapons, etc.)

According to the evidence duly adopted by the court below, since the defendant 1's instructions reveal the fact that the victim threatened the victim according to the order of the defendant 1, purchased the benz car and transferred it to the non-indicted 4, the defendant 1's acquisition of the benz car by the crime of the above benz itself is the benz car itself, and it is not different even if the victim acquired the benz car in the form of a lease contract, or the non-indicted 4 returned it to the victim thereafter. This part of the court below did not err in the misapprehension of legal principles as to the object of the crime of attack, and other grounds of appeal related to this are erroneous in the selection of evidence and the fact-finding by the court below, and it cannot be a legitimate ground for

C. As to the remaining grounds of appeal by Defendant 1, 2, and 3

Examining the reasoning of the judgment below and the evidence duly adopted by the court of first instance, it is just that the court below found Defendant 1, 2, and 3 guilty of all the charges on the following facts, on the grounds as stated in its reasoning: violation of the Punishment of Violences, etc. Act (Composition and Activity of Organizations, etc.); violation of the Punishment of Violences, etc. Act (Joint Bodily Injury) by Defendant 1, and 2; violation of the Punishment of Violences, etc. Act (Joint Assault), violation of the Act on Special Cases Concerning Regulation and Punishment of Speculative Acts, etc. by Defendant 1; violation of the Punishment of Violences, etc. Act (damage to property such as group, deadly weapons, etc.), violation of the Punishment of Violences, etc. Act (damage to property such as group, deadly weapons, etc.)

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment of the court below in light of the records, it is just to maintain the judgment of the court of first instance which acquitted Defendant 4 on the ground that there was no proof of the crime as to this part of the facts charged that Defendant 4 constituted a crime organization by re-buildinging “○○○m” during the period from the end of November 1999 to the end of 2000, and there is no violation of the rules of logic and experience and the principle of free evaluation of evidence.

3. Conclusion

Therefore, all appeals by Defendant 1, 2, and 3 and prosecutor's appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)