헌재 2007. 1. 2. 선고 2006헌아58 결정문 [불기소처분취소 (재심)]

[결정문] [지정재판부]


206Hun-Mao58 Revocation of a non-prosecution disposition (Reopening of procedure)


Gu ○ Association


The appellant shall dismiss the appeal.


1. Case summary

A. The claimant filed a complaint with the court of the first instance on August 22, 2005 as the charge of forging private documents and uttering of falsified investigation documents. However, the prosecutorial office of the Ministry of National Defense filed a non-prosecution disposition (No. 2004 type No. 198) with the prosecutorial office of the Ministry of National Defense on August 22, 2005. The appellant appealed against the above non-prosecution disposition. However, the High Military Court dismissed the application for adjudication by the ruling of July 12, 2006 by the High Military Court. The appellant re-appealed to the Supreme Court on November 1, 2006, but the Supreme Court dismissed the reappeal by the ruling of November 206Mo385, which became final and conclusive.

B. The claimant filed an adjudication on constitutional complaint seeking the revocation of the above non-prosecution disposition (2006Hun-Ma1257), but the first designated adjudication division of the Constitutional Court dismissed the petition on November 28, 2006 on the ground that in the event that the applicant is already subject to the court's adjudication on the non-prosecution disposition due to an appeal to the non-prosecution disposition on the grounds that it cannot be subject to the constitutional complaint.

C. On December 9, 2006, the claimant appealed against the above decision and again filed an adjudication on constitutional complaint of this case seeking revocation of the disposition not to institute the above disposition (re-adjudication).

2. Determination

The Constitutional Court shall not re-examine the same case, which has already been tried (Article 39 of the Constitutional Court Act), and the Constitutional Court’s decision shall not be permitted as a matter of principle (see Supreme Court Decision 6-2, 538, Dec. 29, 1994). Therefore, the petition for retrial of this case is unlawful since it is merely an appeal to the decision to revoke a non-prosecution disposition.

3. Conclusion

If so, the adjudication request of this case is unlawful and cannot be corrected, and it is so decided as per Disposition by the Constitutional Court Decision to dismiss it pursuant to Article 72 (3) 4 of the Constitutional Court Act.

January 2, 2007


The presiding Justice Lee Jae-chul

Justices Kim Jong-dae

Justices Jo Young-young