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헌재 1999. 9. 16. 선고 98헌마289 결정문 [기소유예처분취소]
[결정문]
Claimant

[Judgment of the court below]

Cheong-ro, Lee & Lee, et al.

Attorney Park Young-soo

appellees

Prosecutor of the District Prosecutors' Office

Text

In the case of the Changwon District Prosecutors' Office 98-type 1911, the respondent's disposition of non-prosecution of the suspension of indictment against the claimant is revoked because it infringes the claimant's right to equality.

Reasons

1. Case summary

According to the records of the instant case and the records of the non-prosecution case No. 98-type 19111 at the Changwon District Prosecutors' Office, the following facts are recognized:

A. On April 16, 1998, the petitioners were accused of the violation of the Medical Technicians, etc. Act from the mayor of Mansan to the Mandong Police Station, and the gist of the accusation is as follows.

B. On June 24, 1998, the respondent recognized the charge of the crime against the above petitioners, but ordered the suspension of indictment in consideration of the circumstances, such as the absence of the same criminal record and the minor of the case.

C. On August 20 of the same year, the petitioners filed an constitutional complaint on the instant case on August 20 of the same year, alleging that the respondent’s disposition of suspending indictment was an arbitrary exercise of prosecutorial power, thereby infringing on the right to equality, etc. of the petitioners.

2. The abstract of the facts of accusation;

Suspects who are suspects (hereinafter referred to as "applicants") are persons who jointly operate safe stores, and persons who establish and operate safe stores shall not arrange, introduce, or induce customers to specific eyeglass shops or opticians for profit-making purposes, even though they may not recommend, introduce, or induce customers to specific eyeglass shops or opticians.

In order to attract customers at the above office of the Dong-dong, 100 copies of the membership cards are produced and distributed on the back side of the card, stating that “a person holding the card will gather to V.I.P.,” and by inserting a publicity phrase “I.P. to accumulate and return a certain amount from the customer’s purchase price” on January 14, 1998, the card holder entices customers through an exaggerated advertisement.”

3. The parties' arguments and answers;

A. Summary of the claimant's assertion

(1) The applicants have produced the Bobner Card and distributed it to the customers and advertised in the ○○ newspaper. However, the applicants’ eyeglass shops actually implemented the said customer card and newspaper advertising door, and thus, it cannot be deemed as a excessive advertisement in light of social norms. Furthermore, it is reasonable and reasonable to increase the customers by discounting a certain rate of the selling price in order to increase the sales of their own businesses.

(ii)In the course of the investigation, the respondent did not give the applicant an opportunity to file a legal action against the factual relations and legal relations, and recognized the charge, which is contrary to the negligence and equity of the investigation, and due to the misunderstanding of the legal principles, it should be revoked because it infringes on the right of equality guaranteed by the Constitution against the applicant for arbitrary disposition.

B. Summary of the respondent's response

As a result of a thorough examination of the record of forwarding by the police with respect to the instant case, the respondent was found to have been suspected of having not been seriously investigated and the suspected fact constitutes a constituent element of the crime. However, considering the fact that the case is insignificant and the appellant has no same criminal record and has no same criminal record, the respondent was properly disposed of the suspension of indictment. Therefore, the respondent did not arbitrarily exercise its power or have made a decision contrary

4. Determination

A. Whether it constitutes a false or exaggerated advertisement

(1) According to the evidence of this case (the investigative record 15 to 21, the statement of this case 24 to 30, the statement of this case 24 to 30, the document of this case 8 to 00, the card of this case 9 to 00 ○○○○○○○○○○○○○○○○○○○○○○○○○○○), the applicants made and distributed 100 customers’ book cards to attract customers from September 1997. The Boner Card stated that the purchase amount and date, the Boner’s book amount, the Boner’s book amount, the Boner’s book amount, and the number of holders of this card will raise to V.I.P. customers, and that ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○).

(2)On the other hand, Article 14, Paragraph 1 (Prohibition of Exaggerated Advertisement, etc.) of the Medical Technicians, etc. Act provides that "Exemplary shops shall not make a false or exaggerated advertisement with respect to their duties," and the penal provision does not provide for a penal provision for the above exaggerated advertisement, so even if the above activities of applicants for domestic affairs constitute an exaggerated advertisement, they shall not be punished.

(b)whether it constitutes an illegal brokerage, introduction and inducement of customers;

Article 14(2) of the Medical Technicians, etc. Act provides that “No person shall recommend, introduce, or induce any customer to a specific eyeglass shop, specific eyeglass shop, or optician for profit-making purposes” (Article 14(2) of the same Act provides that “No person shall recommend, introduce, or induce any customer to a specific eyeglass shop, specific eyeglass shop, or optician for the purpose of establishing a sound trade order in the optician industry.” In the case of opticians, it is prohibited from mediating, introducing, or inducing any customer to any specific eyeglass shop, other than his/her eyeglass shop, or opticians. In particular, in light of Article 14(1) of the same Act, where a specific eyeglass shop, or opticians attracts customers to such eyeglass shop, or opticians, it does not constitute an unlawful act of inducing customers provided for in Article 14(2) of the same Act, and thus, it does not constitute the act of inducing customers to promote the sales of ○○ source and to provide any customer card sales card.

(c)Therefore, the Claimant's act of issuing the above customer reception cards or the act of publishing the newspaper advertisement is a business-based business activity to increase sales, and it is clear that there is no suspicion of crime because it does not constitute an illegal inducement of customers as stipulated in Article 14 (2) of the Medical Technicians, etc. Act. However, the respondent did not properly investigate the Claimant's act in this case, and further, it concluded that the Claimant's illegal inducement of customers as stipulated in Article 14 (2) of the above Act is guilty of crime by misapprehending the legal principles, and that the indictment is not imposed in consideration of various other circumstances.

5. Conclusion

Therefore, the respondent limited to the interpretation of the legal principles on soliciting customers prohibited under Article 14(2) of the Medical Technicians Act, and violated the right of equality of the petitioners by committing a mistake in failing to investigate as to whether the pertinent act of the petitioners constitutes the elements of the crime.

Therefore, the appeal of this case is reasonable, and it is so decided as per Disposition by the assent of all Justices.

Justices Kim Yong-sik (Presiding Justice)

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