헌재 2006. 1. 26. 선고 2005헌마1017 결정문 [불기소처분취소]

[결정문] [전원재판부]


2005Hun-Ma1017 Revocation of a non-prosecution disposition


Yellow Doz. ○

Attorney Kim Jong-soo


Prosecutor of the High Office of the Government of the District Prosecutors' Office


The appellant's appeal is dismissed.


1. Case summary

The following facts are recognized according to the records and investigation records of this case (the records of the case of non-prosecution, suspension of prosecution, suspension of witness, etc. in the Goyang District Prosecutors' Office 2004 type 32274).

A. The claimant filed a complaint against the Defendant for fraud and embezzlement. The gist of the fact of the complaint is as follows.

The Defendant, in collusion with his/her employees, in the operation of ○wa Holdings located in Mangsan-gu, Mangsan-si, and in collusion with his/her employees other than his/her father's claim, ○○;

(1) On May 14, 2004, the fact that: (a) although a promissory note was notarized on the said deposit, the applicant did not have the intent or ability to repay it by July 30, 2004; and (b) the applicant did not have the intent or ability to repay it; (c) the applicant was granted a notarized authentication to the said purport; and (d) the applicant was granted a grace period for the repayment of his/her principal obligation and the pecuniary interest equivalent to the said amount.


(2) Around August of the same year, when a contract for the exclusive use of crowdfunding was concluded with the red ○○ and 40 million won other than the claim, during which the said security deposit was not returned at the above place, the security deposit was stored, but the claimant was paid to him, but at the same time, he arbitrarily consumed it and embezzled it.

B. On February 28, 2005, the respondent who investigated the instant case was not subject to disposition of non-prosecution on the ground that he was not guilty of the charges.

C. On October 18, 2005, the appellant appealed against the appeal and reappeal under the Prosecutor’s Office Act, but all of the appeals and reappeals were dismissed. On October 18, 2005, the appellant filed a petition for adjudication on constitutional complaint of this case by asserting that the respondent was infringed upon the claimant’s right to equality and right to state

2. The claimant's assertion;

In addition to the assertion that the disposition of non-prosecution by the respondent is unreasonable, the petitioner neglected to investigate the statement and evidential materials of the petitioner and to accept the suspicion of the crime against the defendant if he/she had conducted strict investigation. Thus, the petitioner filed the constitutional complaint of this case in addition to his/her assertion that the disposition of non-prosecution is improper, and only filed a new claim with the defendant that the defendant did not investigate the fact that he/she was paid 50 million won from the claimant and acquired pecuniary benefits, notwithstanding the absence of the intention or ability to return the deposit even if the contract term expires at the time of concluding the exclusive contract for photographing

3. Determination

First of all, we examine whether the respondent's non-prosecution disposition against the defendant's complaint of this case is in violation of the Constitution, and examine the records in detail, and then investigate the defendant's investigation against the above case against justice and equity, or interpret the Constitution, apply the law, or determine the evidence.

In addition, there is no material to deem that the respondent’s disposition of non-prosecution is an arbitrary disposition to the extent that the Constitutional Court is involved in the decision of the non-prosecution disposition. Therefore, it cannot be deemed that the respondent’s fundamental right is infringed.

Next, the claimant asserts that it is unfair that the respondent had investigated whether the respondent had had no intention or ability to return the deposit at the time of entering into a contract for the exclusive use of crowdfunding photographs and video photographing, in addition to the original accusation, the respondent had conducted an investigation, but did not conduct such investigation. However, even upon examining the written complaint submitted by the claimant, it cannot be found that the above facts were included in the facts of the complaint or that the respondent has made any disposition, and only the claimant has made such assertion after the filing of the instant constitutional complaint with the Korean Court. However, the subject of the instant constitutional complaint is a non-prosecution disposition made on February 28, 2005 by the respondent based on the facts of the complaint by the claimant. Accordingly, the petitioner is not subject to the judgment by the investigative agency, separate from the fact that the claimant again raised the above facts as the fact of the complaint, and even if the respondent newly claims the fact that there was no disposition by the respondent, it cannot be decided as the subject of the trial.

4. Conclusion

Therefore, the appellant's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

January 26, 2006


Justices Yoon Young-young of the presiding Justice

Justices Kim Yong-soo

Justices Kim Jong-il

Justices Song Jin-in-Law

Justices Cho Jong-soo

(1) The preceding deliberation by the State Tribunal

Judges Lee Dong-chul

Justices Cho Jong-dae