[2] Whether the indictment against the defendant constitutes abuse of the right of prosecution solely on the ground that the defendant was not prosecuted by a person who committed an act that meets the requirements for constituent elements identical or somewhat excessive to the defendant (negative)

1. In a case where the prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives substantial disadvantage to the defendant, the effect of the indictment may be denied as it is deemed abuse of the authority to institute a public prosecution. However, to be recognized as a arbitrary exercise of the authority to institute a public prosecution, it should be recognized that the mere negligence in the course of performing his/her duties is insufficient and at least there is any intention to do so (see Supreme Court Decision 2007Do9737, Feb. 14, 2008, etc.).

Meanwhile, a prosecutor has discretion to decide whether to institute a public prosecution in consideration of the suspect’s age, character and conduct, intelligence and environment, relationship with the victim, motive, means and consequence of the crime, and circumstances after the crime. Thus, the institution of a public prosecution following the exercise of discretionary power cannot be deemed an abuse of the right to institute a public prosecution unless it is recognized that the institution of a public prosecution significantly deviates from the discretionary power. Therefore, the mere fact that a person who was not prosecuted in spite of an act that meets the requirements for the constituent elements of a crime identical or somewhat heavy to the person instituting a public prosecution is against the right to equality or sound reasoning and cannot be deemed an abuse of the right to institute a public prosecution (see Supreme Court Decisions 9Do577, Dec. 10, 199; 2006Do1623, Dec. 22, 2006, etc.).

2. A. According to the reasoning of the judgment below, the court below, based on the adopted evidence, found the following facts: ① the National Assembly guards, other than the investigation agency, continue to have the nature of 19 persons, including the Defendants, who refuse to comply with the request for eviction and deliver them to the police, and thus, it is difficult for the investigation agency to readily select only the Defendants, who are assistant officers belonging to the Democratic Labor Party, as the investigation agency, as the investigation agency conducted the investigation; ② The police investigated 19 persons, including the Nonindicted Party and the Defendants, who were arrested as a flagrant offender, and transferred them to the prosecution; ② The prosecutor tried to investigate 19 persons, including the Nonindicted Party and the Defendants, who were arrested as a flagrant offender, and then sent them; ③ all the above 19 persons, who were suspected of having been charged, the prosecution or indictment of suspension of indictment, after considering the circumstances such as the facts charged, the prosecution and prosecution of the National Assembly, and ③ The democratic party's involvement in the election of the National Assembly, as well as the reason why the prosecutor could not be subject to voluntary and voluntary labor.

B. In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to abuse of power of prosecution as otherwise alleged in the ground of appeal

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

Justices Park Poe-young (Presiding Justice)