[1] The meaning of the compensation order system and the requirements of the compensation order system

[2] The nature of the criminal agreement that the victim received from the perpetrator in the course of investigation or criminal trial

[1] Articles 25 and 32(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings / [2] Articles 393 and 763 of the Civil Act

[1] Supreme Court Decision 96Do945 Decided June 11, 1996 (Gong1996Ha, 2268), Supreme Court Decision 2006Do2407 Decided June 30, 2006, Supreme Court Decision 201Do4194 Decided June 10, 201 / [2] Supreme Court Decision 95Da53942 Decided September 20, 1996 (Gong196Ha, 3114), Supreme Court Decision 98Da43922 Decided January 15, 199 (Gong199Ha, 299Sang), Supreme Court Decision 200Da46894 Decided February 23, 2001 (Gong201, 742)

Defendant

Defendant

Law Firm Dadam, Attorneys Ha Young-ho et al.

[Attachment] The list is as shown in the list.

Seoul High Court Decision 2012No995 decided May 31, 2012

Of the judgment of the court below, the part of the compensation order against the applicant for compensation other than the defendant 16,31 is reversed, the part of the judgment of the court of first instance as to that part is revoked, and all of the applications for compensation by the applicant for compensation except the applicant for compensation 16,31 are dismissed. The remaining appeals are dismissed. The remaining appeals are dismissed. Of the judgment of the court below [Attached Form] 27 ", the applicant for compensation 27" and the decision of correction of the judgment of the court of first instance [Attachment ] of the judgment of the court of first instance [Attachment ] after correction, the "27, the applicant for compensation" is corrected to "27, the applicant for compensation" respectively.

The grounds of appeal are examined.

1. Defendant case;

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In this case, the defendant did not deceiving the victim non-indicted 1, 2, 3, and 4, or the judgment of the court below that the defendant violated the rules of evidence cannot be a legitimate ground for appeal. Furthermore, even if ex officio examination is conducted, the judgment of the court of first instance

Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot

2. As to the compensation order

A. The court below did not revoke or alter the order for compensation of the first instance court on the ground that the agreement that some victims reached with the defendant or joint defendant 2 of the court below was merely a criminal agreement unrelated to civil damages in light of the developments leading up to the agreement or the amount of agreement.

B. In light of the records, since 16,31 applicants for compensation did not agree additionally with the defendant or co-defendant 2 of the court below or have received the amount of damage, the court below's measures maintaining the part of the compensation order among the judgment of the court of first instance against the above applicants for compensation are just and there is no error of law as alleged in the grounds of appeal.

C. However, it is difficult to accept the judgment of the court of first instance that maintained the part of the compensation order against the remaining applicants for compensation except for 16,31, Defendant’s compensation applicant among the judgment of the court of first instance.

The compensation order pursuant to Article 25 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is a system in which the amount of direct property damage suffered by the victim of the criminal act of the defendant is specified and the extent of the defendant's compensation is clear only when the compensation order is given to the defendant, thereby promoting the recovery of damage suffered by the victim simply and promptly. According to Article 25 (3) 3 of the Act on Special Cases Concerning the Settlement of Legal Proceedings, where the existence or scope of the defendant's compensation liability is unclear, the compensation order shall not be issued, and in such a case, the application for compensation order shall be dismissed pursuant to Article 32 (1) of the Act on Special Cases Concerning the Settlement of Legal Proceedings (see, e.g., Supreme Court Decisions 96Do945, Jun. 11, 1996; 2006Do2407, Jun. 30, 2006; 201Do4194, Jun. 10, 2011).

In addition, in the course of investigation or criminal trial against the perpetrator of a tort, where the victim agreed that he/she would not want punishment against the perpetrator after receiving the amount under the pretext of agreement from the perpetrator, it is reasonable to deem that the amount was paid as part of the damages (property damages) unless there are circumstances such as clearly stating that the amount received at the time of agreement is paid as consolation money (see Supreme Court Decision 2000Da46894, Feb. 23, 2001, etc.).

According to the records, the defendant and the co-defendant 2 of the court below did not appear to have agreed with the remaining applicants for compensation except for 16,31 who made an application for compensation when they came to the court below, or to have paid additional money under the pretext of agreement to them, and there is no circumstance such as clearly stating that they would pay the above money as consolation money.

Examining these facts in light of the legal principles as seen earlier, since this case constitutes a case where the existence and scope of the Defendant’s liability for compensation against the above applicant for compensation is unclear due to the agreement or additional repayment of partial damage amount, and thus, it is impossible to issue an order for compensation. Therefore, the judgment of the court below which maintained the part of the order for compensation against the above applicant for compensation among the judgment of the court of first instance,

3. Conclusion

Therefore, among the judgment of the court below, the part of the compensation order against the applicant for compensation other than the defendant 16,31 is reversed. Since this part is sufficient for the Supreme Court to see it, pursuant to Article 33 (4) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the compensation order of the court of first instance against the applicant for compensation other than the defendant 16,31 shall be revoked, and the part of the compensation order shall be dismissed, all of the applications for the compensation order shall be dismissed, and the remaining appeals shall be dismissed, and the judgment of the court of first instance shall be dismissed, and the judgment of the court of first instance [Attached Form] of the judgment of the court below [Attachment Form 27] and the decision of correction of the judgment of the court of first instance [Attachment 27] of the "victim List after Correction."

[Attachment] List of Applicants: omitted

Justices Kim Yong-deok (Presiding Justice)