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(영문) 헌재 2006. 7. 27. 선고 2004헌마885 결정문 [불기소처분취소]
[결정문] [전원재판부]

204Hun-Ma885 Revocation of a non-prosecution disposition


Gangwon ○ Gangwon

Attorney Han-tae et al.


Prosecutor of Seoul Central District Prosecutors' Office


Of the claimant's appeal, the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement

The claim shall be dismissed, and the remainder shall be dismissed.


1. Case summary

A. The claimant filed a complaint against fraud and the charge of embezzlement, etc. of funds of the above company (Seoul Central District Prosecutors' Office 2003 punishment No. 20416) by three persons, including the ○○○○○○○○○○○○○○○○○○○○○, which was the Defendant’s ○○○○○○○○○○○○ (hereinafter “the Defendant”) who was in charge of printing teaching materials for the examination of licensed real estate agents and did not pay part of the price. After the investigation of this case, the respondent was suspected of having taken a non-prosecution disposition.

B. On November 15, 2004, the claimant asserted that the right to equality and the right to make a statement in the trial procedure of the claimant under the Constitution was infringed upon due to the above disposition on November 15, 2004, and sought revocation of the above disposition, through the procedure of appeal and reappeal against the above disposition.

The claim was filed.

2. Determination

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

In the adjudication on constitutional complaint demanding the revocation of a non-prosecution disposition, the qualification for claimant shall be recognized in cases of self-relatedness as a criminal victim.

In this case, since the defendant defendant embezzlements the funds of ○○○, the criminal victim of the embezzlement is the above company. Even according to the claimant's assertion, the claimant is merely a creditor of the above company and is subject to an indirect disadvantage, i.e., an indirect disadvantage, so it cannot be viewed as a criminal victim with a legal interest.

Therefore, this part of the appeal is unlawful because the claimant has no relevance to himself (it is not sufficient to prove that he embezzled as a result of examining the records of this case on the merits even if his relevance is recognized, so this part of the appeal is without merit).

B. Fraud

In examining the records in detail, it is not proven that the respondent has committed an investigation against justice and equity with respect to the above case, or that there was a serious fault that affected the decision of non-prosecution disposition in interpreting the Constitution, applying Acts or determining evidence, and there is no data to regard the above disposition by the respondent as an arbitrary disposition to the extent that the Constitutional Court is involved, and thus, it cannot be deemed that the basic right of the appellant’s assertion was infringed.

3. Conclusion

Therefore, the appellant's appeal of this case is dismissed in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) and the remainder is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

July 27, 2006


Justices Yoon Young-young of the presiding Justice

Jurisdiction of Justice

Justices Kim Yong-soo

Justices Kim Jong-il

Justices Song Jin-in-Law

Justices Cho Jong-soo

(1) The preceding deliberation by the State Tribunal

Judges Lee Dong-chul

Justices Cho Jong-dae