In a crime in which an accusation can be instituted only when an accusation is filed, the accusation constitutes an active litigation condition, and thus constitutes an ex officio investigation, and even if a party did not assert it as the grounds for appeal, the lower court shall investigate and determine it ex officio (see Supreme Court Decision 2009Do9939, Dec. 10, 2009).

The facts charged in the instant case are crimes falling under Articles 30(1)1, 4(1), and 4(2)6 of the former Fair Transactions in Subcontracting Act (amended by Act No. 10475, Mar. 29, 201; hereinafter “the aforementioned Act”), and may be prosecuted only when the Fair Trade Commission files an accusation pursuant to Article 32 of the said Act.

However, even if examining the record, there is no evidence suggesting that there was an accusation by the Fair Trade Commission concerning the facts charged of this case.

Therefore, the court below maintained the judgment of the court of first instance which found the defendant guilty without failing to exhaust all necessary deliberations as to whether there was an accusation by the Fair Trade Commission regarding the facts charged of this case, while examining ex officio and determining the legitimacy of the indictment of this case. Thus, the court below is bound to have affected the conclusion of the judgment by failing to exhaust all necessary deliberations by misapprehending the legal principles on Article 32 of the above Act.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)