26.Permission of Re-appeal against Court's Ruling on Petition for Adjudication Case

[23-2(B) KCCR 455, 2008Hun-Ma578,2009Hun-Ma41·98(consolidated),November 24, 2011]

In this case, the Constitutional Court held that Article 262 Section3 of the Criminal Procedure Act, which sets forth that the court's examination on a case of petition for adjudication, in principle, shall be conducted behind closed doors, and Article 262-2 of the same Act, which does not permit an inspection or a copy of relevant documents or evidence during the court's review on that request, do not infringe on the complainants' rights to trial. However, the Court held that the part of 'no objection may be raised against the ruling' of Article 262 Section 4 of the Criminal Procedure Act is unconstitutional in violation of the petitioner's rights to trial and equality as long as 'objection' against the ruling is to be interpreted to include 're-appeal' of Article 415 of the same Act.

Background of the Case

After the prosecutor's disposition of non-prosecution, the complainants,who are the accusers in respective cases, filed a petition for adjudication by the court following an appeal to the prosecution, but thereafter such request was denied.

Complainants could not re-appeal against that court's ruling because an objection to the court's decision of denial is not allowed in accordance with Article 262 Section 4 of the Criminal Procedure Act, and 're-appeal' of Article 415 of the same Act is construed as one of such objection. Complainants, in response, filed this constitutional complaint with the Court, asserting that the full text of Article 262 Section 4 of the Criminal Procedure Act mentioned in the above paragraph, Article 262 Section 3 of the Criminal Procedure Act, which prescribes the rule of nondisclosure to the public for the court's examinations of a petition for adjudication and Article 262-2 of the

Criminal Procedure Act, which does not permit an inspection or a copy of relevant documents and evidence during the court's examination or hearing on such request, infringe on their rights to trial and equality.

Summary of Decision

While the Court unanimously held that Article 262 Section 3 and Article 262-2 of the Criminal Procedure Act do not infringe on thecomplainants' rights to trial, the Court, in a 7 (limited unconstitutionality) to 1 (constitutionality) opinion, found that the part of'no objection shall be raised against the ruling' of Article 262 Section 4 of the Criminal Procedure Act is unconstitutional in violation of the petitioner's rights to trial and equality as long as 'objection' against the ruling is to be interpreted to include 're-appeal' of Article 415 of the same Act., based on the grounds below.

1.Article 262 Section 3 and Article 262-2 of the Criminal Procedure Act

Article 262 Section 3 of the Criminal Procedure Act stipulates that the court's examination on a petition for adjudication by the court shall not be open to the public and the Article 262-2 of the same Act does not allow a person to inspect or copy a relevant document or the evidence related. We find that the legislative purposes of those Articles stated above appear to be reasonable because they are intended to prevent the invasion of privacy of the accused, an obstruction to the secrecy of investigation and the overuse of petition for adjudication by the court to influence civil cases. In addition, Article 262 Section 3 of the Criminal Procedure Act allows the court's examination on such request to be open to the public if there is an extraordinary reason and, in accordance with the proviso of Article 262-2 of the same Act,courts may permit a person to inspect or copy all or part of documentsprepared in the examinations of evidence. For the foregoing reasons, we conclude that the legislature is reasonable in exercising its discretion when it enacted the Articles mentioned above and thus those Articles do not infringe on the complainants' rights to trial.

2.The part of ''no objection shall be raised against the ruling" of Article 262 Section 4 of the Criminal Procedure Act

A. Court Opinion

The prohibition of re-appeal against the ruling on petition for adjudication by the court is not only incompatible with the purpose of Article 107 Section 2 of the Constitution, which is to ensure uniformity in the construction of statutes by granting the Supreme Court power to review the constitutionality or legality of administrative decrees, regulations or actions, but is also an excessive restriction on the right to trial of a person filing a petition for adjudication by the court in light of the circumstances where a court ruling is not subject to a constitutional complaint for review by the Constitutional Court. Furthermore, Article 415 of the Criminal Procedure Act, unlike Article 402 of the same Act, allows an immediate appeal on the ground of violation of laws without any exception. Article 2 Item 1 of the Act on the Court Proceedings for Small Claims and Article 4 Section 1 of the Special Act on the Appeal Proceedings also stipulate that an appeal or re-appeal to the Supreme Court against a lower court's judgment or disposition shall be allowed in a case where there is an issue about whether that judgment or disposition violates the Constitution or the laws. Compared with the Articles mentioned above, the disallowance of re-appeal on the ground of alleged violation of laws does not comply with the legal nature of the court's decision of denial to a petition for adjudication by the court when we acknowledge that the court's decision of denial to that request is a decision as to whether the prosecutor's non-prosecution violates the Constitution or the laws. Also the Civil Procedure Act permits not only a re-appeal (Article 332) but also a special appeal for the reason of alleged violation of the Constitution or laws to the Supreme Court against a judgment or an order against which no objection is allowed (Article 449).

For the foregoing reasons, we conclude that, as long as 'objection' against the ruling is to be interpreted to include 're-appeal' of Article 415 of the same Act, the provision, which does not allow an

objection to a court's decision of denial, infringes on not only the complainants' right to trial but also their right to equality because it, without any reasonable reason, differently treats a person who filed with the High Court a petition for adjudication by the court but received that High Court's decision of denial from others who received other decisions of that High Court and are allowed to file a re-appeal set forth by Article 415 of the Criminal Procedure Act.

B. Dissenting Opinion of One Justice

In light of the legislative intent, the textual interpretation of the term of 'objection' of the provision at issue, the hierarchy between the provision prohibiting any objection and Article 415 of the Criminal Procedure Act, and the way of setting forth the rules in the Criminal Procedure Act, the provision at issue, which does not allow an objection against a court's decision of denial in a case of petition for adjudication by the court, shall be deemed to be not allowing a re-appeal under Article 415 of the Criminal Procedure Act.

In my view, the provision at issue not-allowing an objection against the court's decision of denial which prohibits the re-appeal of Article 415 of the Criminal Procedure Act does neither excessively infringes on the complainants' right to trial without any reasonable ground, nor infringes on the complainants' right to equality by unreasonably discriminating a person, who files a request of petition for adjudication by the court, from others who receive other kind of decisions of the High Court against which an appeal is allowed. The reasons are as follows: the nature of the examination on the petition for adjudication by the court; the process up to the court's decision on that request and the jurisdiction over the decision on petition for adjudication; the necessity of prompt relief of many innocently accused people involved in cases where there is a petition for adjudication by the court from their unstable status; the increase of workload of the Supreme Court and prolonged unstable status of the accused expected in the instances where re-appeal of Article 415 of the same Act is allowed; the fact that an objection against the court's decision on that request is also not permitted in Germany; and that the disallowance of re-appeal

against the court's denial of that request cannot be deemed to be inconsistent with the purpose of Article 107 of the Constitution, which allocates authorities between the Constitutional Court and the Supreme Court.

Aftermath of the Case

After the decision of the Constitutional Court, those who file for petition for adjudication by the court but is denied, may re-appeal to the Supreme Court where there is an issue about whether the court's ruling violates the Constitution or laws