Defendant 1 and one other

Prosecutor

Kim Jong-chul

Attorney Park Jin-tae

Seoul Central District Court Decision 2009Gohap1117 Decided December 18, 2009

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of prosecutor's grounds for appeal;

A. Legal principles

(1) Of the facts charged in this case against Defendant 1, Article 5(4) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 8444 of May 17, 2007; hereinafter "former Specific Economic Crimes Act") was decided unconstitutional on the ground that it has lost balance in the punishment system with Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes. The above decision of unconstitutionality was lost (i.e., where a balance in the punishment system is more severe than a public official). Since Article 5(4) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 8444 of May 17, 2007; hereinafter "former Aggravated Punishment, etc. of Specific Economic Crimes"), which was the act of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 8444 of May 17, 2007, hereinafter "former Aggravated Punishment Act").

(2) Even if Article 5(4) of the former Act on the Aggravated Punishment, a juristic person, upon the decision of unconstitutionality, should lose its validity and Article 5(1) of the former Act should be applied, the statute of limitations on the statute of limitations cannot affect the decision of unconstitutionality. Therefore, the statute of limitations applicable to this part of the facts charged is not more than five years according to the statutory penalty under Article 5(1) of the former Act on the Aggravated Punishment, but not more than ten years according to the statutory penalty under Article 5(4) of the former Act on the Aggravated Punishment, etc.

(3) Therefore, the court below's decision of acquittal as to this part of the facts charged has expired, which seems to be unlawful.

B. Unreasonable sentencing

Taking into account the various sentencing conditions against the Defendants, the sentence of the lower court is deemed unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

(1) Summary of this part of the facts charged

Defendant 1: (a) was requested by Nonindicted 2 to provide loans to Nonindicted 4, the actual operator of Nonindicted 3 Company; (b) paid 2.2 billion won in the name of Nonindicted 5; and (c) paid 2 billion won in the name of Nonindicted 4; and (d) paid 2 billion won in the name of Nonindicted 6; and (c) around May 13, 2004, demanded 10 million won in the name of the foregoing loan granted to Nonindicted 4; (d) received 30 million won from Nonindicted 4; and (e) around June 8, 2004, demanded 20 million won in the above loan granted to Nonindicted 4; and (e) received 20 million won in the aggregate from Nonindicted 4; and (e) received money from Nonindicted 4 on or around June 8, 2004.

(2) Determination

First, as to whether Article 5(4) of the current Act on Special Economic Crimes as amended is applied to this part of the facts charged, Article 5(4) of the former Act on Special Economic Crimes is amended to Article 5(4) of the current Act on Special Economic Crimes according to the purport of the Constitutional Court’s decision of unconstitutionality and Article 5(4) of the current Act on Special Economic Crimes, and the statutory penalty applied to this part of the facts charged is amended. However, as long as Article 5(4) of the former Act on Special Economic Crimes retroactively loses effect pursuant to the proviso of Article 47(2) of the same Act, which is the provision on the aggravated punishment, and it is possible to apply Article 5(1) of the former Act on Special Economic Crimes, which is not the Act on Special Economic Crimes, Article 5(4) of the current Act on Special Economic Crimes, which is not the Act on Special Economic Crimes, can not be applied to this part of the facts charged. Therefore,

Next, even if Article 5 (1) of the former Act on Special Cases is applied, the statute of limitations can not affect the decision of unconstitutionality. Thus, in this part of the facts charged, since the statute of limitations can not affect the conclusion of the statute of limitations, if the statute of limitations should be applied to the 10 years according to the statutory punishment under Article 5 (4) of the former Act on Special Cases, and the statute of limitations under the statutory punishment is ruled unconstitutional, if the statute of limitations has lost its effect due to the determination of unconstitutionality, there is no legal basis to apply the statutory punishment. In particular, in the case where other statutory provisions that are less than the statutory punishment are applied to this case, the statute of limitations should be applied to the case, and therefore, it is inevitable for the prosecutor to interpret the statute of limitations based on the statutory punishment

Therefore, the judgment of the court below cannot be deemed to be unlawful since five years have passed since the statute of limitations on this part of the facts charged was passed.

B. Determination on the assertion of unfair sentencing

The Defendants’ act of committing the instant crime is not good in that it receives money and valuables under the pretext of arranging a loan from a financial institution, and it harms the fairness in the performance of duties by officers and employees of a financial institution as well as the sound trade order in the financial market, and it cannot be said that the amount of money and valuables received is less than the quality of such crime. In particular, Defendant 2 committed the instant crime of the instant case even though he had been sentenced to a suspended sentence of two years on September 16, 2005 due to the same crime, even though he had been sentenced to a suspended sentence of two years on October 1

However, considering the following: (a) the Defendants appears to have committed all crimes from the early stage of the investigation to seriously repent of the mistakes; (b) there is no criminal record for Defendant 1; and (c) there is no data from the Defendants to make an illegal solicitation to financial institutions in relation to the instant loan; and (d) other various sentencing conditions in the instant pleadings, including the Defendants’ age, character and conduct, and environment, the lower court’s punishment imposed on the Defendants cannot be deemed as unreasonable because it is too unreasonable. Therefore, the Prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, since the appeal of this case against the Defendants by the prosecutor is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Cho Jae-sung (Presiding Judge)