[2] Whether Article 109 of the Constitution applies to the prosecution procedure (negative)

[3] Whether Article 35 of the Criminal Code applies only to a crime with a correlation with a repeated crime before the repeated crime, and whether such crime is unconstitutional (negative)

[4] Whether the principle of disclosure of trial under Article 109 of the Constitution refers to informing the parties prior to the judgment of the contents in advance (negative)

[2] Article 109 of the Constitution provides for the principle of trial disclosure, and there is no room to apply the public prosecutor’s indictment procedure. Therefore, even if the defendant was unable to know the contents or public prosecution before the public prosecution was instituted, or the defendant’s right to peruse and copy trial records was restricted, such public prosecution procedure cannot be deemed as violating the above provisions of the Constitution.

[3] There is no reason or ground to interpret Article 35 of the Criminal Code as applicable only to a case where there is a certain correlation between the criminal facts constituting a repeated crime and the crime newly committed, and the above provision does not violate the principle of equality under the Constitution.

[4] The principle of the disclosure of trial under Article 109 of the Constitution does not mean that the parties should inform the parties of the contents in advance before the court rendered a judgment.

1. As to the ground of appeal on the violation of the Constitution or the unconstitutionality of law

A. Under the provisions of the Constitution and the Constitutional Court, the subject of review of constitutionality is the so-called formal meaning that has gone through a resolution of the National Assembly. Since certain specific provisions of the Constitution can not be deemed to be differentiated between individual provisions of the Constitution to the extent that they can be entirely denied the validity of other provisions, the argument that Article 107(1) of the Constitution violates the other provisions of the Constitution is without merit (see, e.g., Constitutional Court en banc Order 2000Hun-Ba38, Feb. 22, 2001).

B. We cannot accept all the arguments in the grounds of appeal purporting to criticize the judgment of the court below on the basis of the above provisions on the premise that the above provisions are unconstitutional, since Article 240(2) and Article 271(1) of the abolished Company Reorganization Act or Article 39, Article 41(1), Article 42, and Article 68 of the Constitutional Court Act do not apply or are not applicable to the above case.

C. Article 246 of the Criminal Procedure Act, which provides for the right to file a criminal prosecution in order to protect the rights and interests of a criminal victim by allowing a public prosecutor, a representative of the public interest, to exercise the right to file a criminal prosecution from an objective point of view, provides various systems through which the criminal victim may participate in the criminal procedure. Thus, the provision of Article 246 of the Criminal Procedure Act, which provides for the State’s principle, cannot be deemed as infringing on the right to file a criminal prosecution or violating the Constitution (see, e.g., Constitutional Court en banc Order 2005Hun-Ma167, Jul. 26, 2007). Article 295 of the Criminal Procedure Act, which provides that the court may examine evidence ex officio, or Article 275 of the former Criminal Procedure Act (amended by Act No. 8496, Jun. 1, 2007) concerning the right to file a criminal prosecution.

In addition, Article 109 of the Constitution provides for the principle of trial disclosure, and there is no room to apply the public prosecutor's indictment procedure. Therefore, even if the defendant was unable to know the contents or public prosecution before the public prosecution of this case was instituted, or the right to peruse and copy trial records of the defendant was restricted, such public prosecution procedure cannot be deemed to violate the above provisions of the Constitution

All of the arguments in the grounds of appeal regarding this cannot be accepted.

D. Article 20(1) of the Criminal Procedure Act, which provides that where it is obvious to delay a lawsuit, the court or judge in receipt of the application shall dismiss it, intends to prevent abuse of the application for challenge and thereby achieve the public interest such as prompt realization of criminal procedure, and it cannot be deemed that it violates the Constitution (see, e.g., Constitutional Court en banc Order 2005Hun-Ba58, Jul. 27, 2006).

E. Article 35 of the Criminal Act is limited to cases where there is a certain correlation between the criminal facts constituting a repeated offense and the crime newly committed, and there is no reason or ground to interpret the same, and such provision cannot be said to violate the principle of equality under the Constitution.

F. The argument in the grounds of appeal on this point is not acceptable, since the principle of trial disclosure stipulated in Article 109 of the Constitution does not mean that the parties should inform the parties of its contents in advance before the court rendered a judgment.

2. As to the ground of appeal that the first instance court proceeding is unlawful

According to the records, the court of first instance dismissed the application for challenge against the presiding judge on the grounds that it is obvious that the application for challenge against the defendant is for delay of litigation or it does not specifically state the fact that it is for delay of litigation, and it is proceeding without suspending the proceedings. Such measures are just in accordance with Articles 22 and 20 (1) of the Criminal Procedure Act, and there is no violation of law, such as violation of litigation procedures, as argued in the Grounds for Appeal.

3. As to the ground of appeal on concurrent crimes, including misapprehension of legal principles

The latter part of Article 37 and the first part of Article 39(1) of the Criminal Code provide that a crime for which a judgment to punish with imprisonment without prison labor or a heavier punishment has become final and the crime for which a final judgment has become final and conclusive shall be concurrent crimes, and a sentence shall be imposed in consideration of equity in cases where the crime and a final judgment

Examining the reasoning of the judgment below in light of the records, the court below held that the defendant was sentenced to a 1 year imprisonment and the violation of the Act on External Audit of Stock Companies, the violation of the Securities and Exchange Act and the violation of occupational breach of trust in this case as concurrent crimes under the latter part of Article 37 of the Criminal Act, and sentenced a punishment in consideration of the contents of the final judgment and the punishment of the crime of occupational breach of trust in this case at the same time. Thus, the court below's decision is just and there

4. Other grounds of appeal

Upon examining the reasoning of the judgment below in light of the records, it is justified that the court below found the defendant guilty of each crime in its judgment on the grounds as stated in its reasoning, and there is no error of law such as misunderstanding of legal principles as to defamation or occupational breach of trust, or misunderstanding of facts or omission of judgment due to violation of the rules of evidence, as otherwise alleged in the grounds of appeal. The argument in the grounds of appeal

6. Conclusion

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

Justices Park Si-hwan (Presiding Justice)