2014. Request for adjudication on the Constitutional Court of the Republic of Korea

[Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Forgery of Currency)]

1.A

2.B

3.C

4.D

Defendant 4’s defense counselE

Busan High Court 2014No127 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

Forgery, etc.

July 9, 2014

As to the pertinent case, whether Article 10 of the Act on the Aggravated Punishment, etc. of Specific Crimes is unconstitutional or not

The inquiry shall be requested.

1. Case summary

A. Summary of the facts charged in this case

The Defendants, using the composite machines purchased by Defendant A and the Nowon-gu computers of Defendant B, stored the 50,00 won / 10,000 won / 10,000 won / 10,000 / 10,000 / 10,000 / 10,000 / 10,000 / 10,000 / 20,000 / 200 / 20,000 / 20,000 /

1) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

On November 19, 2013, at around 20:0, the Defendants: (a) contained in Defendant B’s house located in 200, the Busan YY market 9:00, in an Nowon-gu, the 50,000 Won (LA907154B); (b) stored 10,000 won (BA368736A) in a file and printed out in a file; and (c) forged 50,00 won (f) and 30,000 won (10,000 won) in a way that blades depending on the size of genuine waste.

As a result, the Defendants conspired to forge the abolition of the Republic of Korea used for the purpose of exercising the rights.

2) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Forgery) and fraud

On November 20, 2013, the Defendants changed the victim F of the victim F in the Mag-dong, Busan, which was operated by the victim F of the victim F in the Mag-gu, Busan, and delivered the victim with the price as if the victim genuinely completed the Mag-gu 10,000 won of the forged Bank of Korea as described in paragraph (1), and received from the victim who is aware of the fact that he received the Mag-do 1 A tobacco from the victim during the period from around 10 times to November 22, 2013, the Defendants exercised forged currencies over a total of 140,00 won and received goods equivalent to 140,00 won.

As a result, the Defendants conspired to make a forged call and received property by deceiving the victims.

B. Progress of the motion to propose the unconstitutionality of the case

The Defendants were indicted for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Forgery of Currency), etc. of the instant case, and were sentenced to three years of probation from the same court on January 24, 2014 to Defendant A, C, and D, and Defendant B were sentenced to two years and six years of imprisonment.

The prosecutor, the defendant A, C, and D appealed against this and filed an appeal with this court. The defendant D's defense counsel asserted that Article 10 of the Act on the Aggravated Punishment, etc. of Specific Crimes is unconstitutional while the lawsuit is pending, and filed an application for the recommendation of unconstitutionality of the case.

2. The Acts and subordinate statutes applicable to the application;

(a) Legal provisions applicable to the application;

[Act on the Aggravated Punishment, etc. of Specific Crimes]

Article 10 (Aggravated Punishment in Currency) Any person who commits a crime referred to in Article 207 of the Criminal Act shall be punished by death, imprisonment with prison labor for life or for not less than five years.

B. Relevant criminal provisions

[Criminal Act]

§ 207. Counterfeiting a currency

(1) A person who, for the purpose of uttering, counterfeits or alters a current coin, paper money, or bank note of the Republic of Korea shall be punished by imprisonment for life or not less than two years.

(2) A person who, for the purpose of uttering, counterfeits or alters a foreign coin, paper money or bank note which is current in this country shall be punished by limited imprisonment for not less than one year.

(3) A person who, for the purpose of uttering, counterfeits or alters a foreign coin, paper money or bank note which is current in a foreign country shall be punished by imprisonment for not more than ten years.

(4) A person who, for the purpose of uttering of, or alteration to, the currency mentioned in the preceding three paragraphs shall be punished by the penalty against such forgery or alteration.

3. Summary of the applicant's assertion

Although the provision of the law is identical to the elements of the crime of forging a currency under the Criminal Act, the punishment is imposed only by imprisonment for life or for not less than two years, which is provided for the crime of forging a currency under the Criminal Act, and is in violation of the principle of guaranteeing fundamental human rights under Article 10 of the Constitution, the principle of equality under Article 11(1), and the principle of prohibition of excessive restriction under Article 37(2) of the Constitution.

4. Determination

A. The premise of the judgment

In the event the facts charged of this case are acknowledged, whether Article 10 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 207 (1) and (4) of the Criminal Act are applied or whether Article 207 (1), and Article 207 (4) of the Criminal Act are applied is decided depending on whether or not the provisions of the Act on the Aggravated Punishment, etc. of Specific Crimes are unconstitutional or not. Accordingly, there is a serious difference in the statutory punishment, which results in a significant difference in the punishment sentence, and thus, the issue of whether the provisions of this case are unconstitutional

B. Whether the legal provisions of this case are suspected of being unconstitutional

Even if there is a need to increase punishment for a certain type of crime, if it is obvious that the degree of increase has manifestly lost legitimacy and balance in the criminal system compared with the ordinary criminal punishment, it would be in violation of the basic principles of the Constitution guaranteeing human dignity and value, and also be unconstitutional law contrary to the principle of equality in the contents of the law. In addition, a special criminal law has the meaning of the aggravated punishment only when a new reason for the aggravated punishment is added according to the legislative purpose, and it goes against the principle of liability by imposing excessive punishment beyond the extent that it is necessary to achieve the function and purpose of punishment and imposing excessive punishment (see, e.g., Constitutional Court Decision 2011Hun-Ba2, Apr. 24, 2014).

In the instant case, where a prosecutor uses a counterfeited or forged monetary call as in the instant case, he/she may prosecute a specific crime by applying the provisions subject to adjudication in accordance with the legislative purpose (Article 1) of the Act on the Aggravated Punishment, etc. of Specific Crimes that maintains sound social order and contributes to the development of the national economy through the aggravated punishment for the specific crime. However, the indictment by applying the provisions of the instant Criminal Act may be instituted by taking into account various circumstances, such as the character, conduct, criminal background, criminal history, degree of occurrence of result, etc. However, such indictment is lawful, and in this case, the court cannot apply more severe provisions subject to adjudication without changing the indictment. However, contrary to the statutory penalty that the instant provision provides for death penalty, life imprisonment, or imprisonment for more than five years, the penal provision of the instant Criminal Act only prescribes imprisonment for life or for more than two years, resulting in serious imbalance between a certain statutory penalty and the applicable provisions of the instant penal provision.

Ultimately, even if it is recognized that there is a need to specially add punishment to the act of forging or falsifying a currency, the provisions of the Criminal Act of this case and the provisions of the Act of this case, which are provided for the same elements as each of the provisions of the Criminal Act, and adjusted upwardly only by statutory penalty, may not be deemed to violate the basic principles of the Constitution guaranteeing the dignity and value of human beings by losing legitimacy and balance in the criminal system that should be established as a special criminal law, or also violate the principle of equality.

5. Conclusion

Therefore, since the legal provision of this case is the premise of the judgment of the case in question, and there are considerable grounds to suspect that it is unconstitutional, the legal provision of this case is unconstitutional, it shall be decided as per the order by recommending a judgment of the unconstitutionality of the law.

July 9, 2014

(Presiding Judge)

Lee Jae-soo

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