[특정경제범죄가중처벌등에관한법률위반(사기)·위조사문서행사·주식회사의외부감사에관한법률위반·특정경제범죄가중처벌등에관한법률위반(횡령)][공2006.2.15.(244),290]
Whether Article 20 (1) 8 of the former Act on External Audit of Stock Companies violates the principle of no punishment without law (negative)
Article 20(1)8 of the former Act on External Audit of Stock Companies (amended by Act No. 6991 of Dec. 11, 2003), one of the constituent elements under Article 20(1)8 of the same Act, is deemed to be belonging to an extremely specialized area where legislators’ detailed discipline is impossible or flexible response is required due to changes in the situation. Thus, Article 13 of the same Act cannot be deemed to have violated Articles 75 and 95 of the Constitution, which merely delegates the Financial Supervisory Commission with the establishment of specific contents of the above accounting standards. Meanwhile, whether delegation of the above legislation violates the principle of no punishment without law, it depends on whether the person subject to application of the relevant Act can predict the principles of no punishment without law, or if so, whether predictability exists should be considered in light of the legislative structure and purpose, history, etc. of the relevant law as well as the legislative structure and content of the relevant law, and it appears that the legislative principles and content of the above law are not in violation of the principle of no punishment without law, and thus, it can be seen that the legislative person is not aware of the above legal principles.
Article 20 (1) 8 of the former Act on External Audit of Stock Companies (amended by Act No. 6991 of Dec. 11, 2003), Article 12 of the Constitution
Supreme Court en banc Decision 98Du6265 Decided October 19, 2000 (Gong2000Ha, 2432) Supreme Court Decision 2000Do107 Decided October 27, 2000 (Gong2000Ha, 2478) Decided December 28, 2004, the Constitutional Court en banc Decision 99Hun-Ba91 Decided October 28, 2004 (Hun-Ba98, 1146)
Defendant
Defendant
Law Firm Lee & Lee, Attorneys Lee Jong-soo et al.
Seoul High Court Decision 2005No1086 delivered on September 14, 2005
The appeal is dismissed. 110 days out of the number of detention days after the appeal shall be included in the original sentence.
1. Article 20 (1) 8 of the former Act on External Audit of Stock Companies (amended by Act No. 691, Dec. 11, 2003; hereinafter referred to as the "Out-of-the-Counter Act") provides that the aforementioned provisions shall be revised to 20 (1) of the former Act upon the amendment of December 11, 2003; and Article 20 (6) of the former Act provides that the previous provisions shall govern the application of penal provisions for acts prior to the enforcement of the Act; thus, it shall not be deemed that there is a violation of the former provisions regarding corporate accounting standards, including Article 20 (1) 2 of the Act on External Audit of Stock Companies (amended by Act No. 691, Dec. 1, 200; see, e.g., Supreme Court en banc Decision 200Du186, Mar. 20, 203). Therefore, it shall be deemed that the above provisions of the Act is unconstitutional or unconstitutional.
Ultimately, the ground of appeal that the legal provision of this case is unconstitutional as it violates the principle of no punishment without law is without merit.
2. Therefore, the appeal shall be dismissed, and 110 days of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Yong-dam (Presiding Justice)