Suspect

Prosecutor

Seoul Central District Court Decision on November 16, 2006

The prosecutor's quasi-appeal is dismissed.

1. Facts of recognition;

According to the records, the following facts are recognized.

(a) Details of the request for detention warrant;

(1) The first claim

On May 8, 2006, the prosecutor arrested the suspect on the 9th of the same month with an arrest warrant issued by this court against the suspect on May 8, 2006, and arrested the suspect on the 10th of the same month. "The suspect sells at a lower price of 42 billion won even though the value of the bonds of the Seoul vehicle owned by LSF KDB SIB SIcom was actually 49 billion won, and then, the suspect did not request the court to dismiss the suspect's defense right under the 10th of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "the suspect's defense right to escape is not equivalent to 7 billion won," and the suspect's defense right is not equivalent to 1th of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "the suspect's defense right is not equivalent to 1th of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes).

(2) The second claim

On October 31, 2006, the prosecutor promulgated a false capital reduction plan in the course of the merger with Lone Star Fund Vice-Chairperson Liart show 4 years of age, etc., and dismissed the request for detention warrant on November 2, 2003 on the grounds of the crime of violation of the Securities and Exchange Act that "the suspect, in collusion with Lone Star Fund Vice-Chairperson Liart show 4 years of age, had a foreign exchange bank spread a false capital reduction plan in the course of the merger with the foreign exchange credit card (subsidiary), which is its subsidiary, and had a foreign exchange bank pay additional 2.6 billion won to the shareholders of the foreign exchange credit card if there is no false capital reduction spread."

(3) The third claim

On November 3, 2006, the prosecutor again requested a warrant of detention for the suspected facts stated in the above second request for the warrant of detention. On November 7, 2006, the judge in exclusive charge of the warrant of this court examined the suspect on November 7, 2006, and dismissed the request for the warrant of detention for the following reasons.

① Since the first half of 2005, the National Tax Service, the Financial Supervisory Service, the Board of Audit and Inspection, and the Prosecutor’s Office have conducted a heavy investigation and investigation into various suspicions including the instant criminal facts with respect to the executives of Lone Star including the suspect. In particular, the Prosecutor’s Office, around March 2006, has secured large quantity of evidence by conducting a large search and seizure on Lone Star-related companies and the suspect’s residence, etc., and secured statements against many suspects and reference witnesses, it is difficult to view that there is evidence to destroy the relevant criminal facts of this case.

② It is unreasonable to deem that the e-mail via the mail server of the Lone Star head office cannot be arbitrarily deleted or altered by the suspect, and that the submission of the e-mail is likely to destroy evidence as the grounds for detention of the suspect. Considering that the executives and employees of Lone Star and the Korea Exchange Bank are not in the position to obstruct the suspect’s appearance or compel the suspect to make a false statement, it is difficult to deem it as the likelihood of destroying evidence as the grounds for detention.

③ Since the beginning of the year 2005, the suspect was the representative director of LASK, who is LASK, and has faithfully engaged in the investigation by the National Tax Service, the Financial Supervisory Service, the Board of Audit and Inspection, and the Prosecutor’s Office. During that period, the detention warrant requested for the suspect was dismissed twice. The suspect is performing his duties in Korea as the representative director of LASK, and most of the suspect’s family and property are located in Korea and is currently in Korea and is still in the state of departure. In light of the fact that there is a concern that the suspect might flee.

④ Under Article 188-4(4)1 of the Securities and Exchange Act, “for the purpose of obtaining unjust benefits,” there is a view that “for the purpose of obtaining benefits, it refers only to one’s own benefits, since it does not mean one’s own or another’s own benefits,” and if so, it cannot be readily concluded that the Defendant constitutes the above Article of the Securities and Exchange Act because the loss he gained or avoided by the suspect falls far less than the amount indicated in the criminal facts. Moreover, even if the subject of benefits is assumed to the foreign exchange bank prior to the merger or its shareholders, it is difficult to maintain the amount of 2.6 billion won as it is, even if the subject of benefits is assumed to be the foreign exchange bank prior to the merger, or its shareholders, the amount of profit recorded in the warrant of this case’s case’

⑤ At the hotel coffee shop where the suspect, etc. offered a public offering, a number of directors, including the suspect, were present at the third person, who is not an officer or employee of Lone Star, the board of directors of the Korea Exchange Bank No. 23, No. 37, the Korea Exchange Bank held a debate, and the detailed matters for the merger with the foreign exchange credit card were modified over three occasions by another third party and announced on the next day of the board of directors by the head of the Bank. As seen above, it is not easy to conclude that the suspect, as seen above, is not a suspect or a suspect, in consideration of all the circumstances, including the status and role of the third person, the career of the suspect, and the status or role of the suspect in the LASK and the foreign exchange bank.

6. As seen earlier, there are several methods of calculating the amount of profit as seen earlier, and most of the materials kept by Lone Star with respect to the instant criminal facts committed three years prior to the seizure by the prosecution are restricted by the prosecution. Therefore, it is not appropriate to conduct the investigation under the custody of the suspect under the above circumstances.”

B. The fourth detention warrant request and dismissal order of this case

On November 15, 2006, a public prosecutor changed the suspected facts stated in the above second request for a warrant of detention to the effect that "the prosecutor committed an act of occupational breach of trust of 24.3 billion won, and evaded corporate tax amounting to 2.14,795,211 won", and the prosecutor dismissed the above request for a warrant of detention for the following reasons: "The prosecutor made a false business trip and submitted a deceptive scheme, such as submission to the National Assembly, to the Financial Supervisory Commission of the National Assembly on October 21, 2004, and the Financial Supervisory Commission of the National Assembly to attend as a witness related to the acquisition of the Korea Exchange Bank at the inspection of the state administration, but did not appear without good cause after making a false business trip, and submitted it to the National Assembly." The prosecutor dismissed the request for a warrant of detention on April 13, 2005, by adding the deadline for the second request for the warrant of detention on November 14, 2006.

2. Summary of the grounds for quasi-appeal;

In determining whether or not to issue a detention warrant, a prosecutor shall conduct an oral examination in the presence of a judge, not a simple written examination, and a judge who is separated from the court is unable to exist, the dismissal of the request for detention warrant by a judge in exclusive charge of the warrant may be appealed by quasi-appeal as a court decision. However, the judge in exclusive charge of the warrant did not examine the suspect before dismissing the request for detention warrant of this case and did not provide sufficient opportunity to make statements to the public prosecutor without questioning the suspect before making a request for detention warrant of this case, and the suspect satisfied all the requirements for issuing a detention warrant of this case under Articles 201(1) and 70(1) of the Criminal Procedure Act. Thus, dismissing the request for detention warrant of this case is illegal and unreasonable and thus, it is argued that the dismissal of the request for detention warrant of this case should be revoked and changed under Article 416(1) of

3. Determination

Article 402 of the Criminal Procedure Act (hereinafter referred to as the "Act") provides that "any person who is dissatisfied with a court ruling may file an appeal against it, except as otherwise provided for in this Act," and Article 403 provides that "No appeal may be filed except in cases where an immediate appeal may be filed against a court ruling with respect to the jurisdiction of the court or the legal proceedings prior to the judgment." (2) The provisions of the preceding paragraph provide that "no appeal shall be filed against a ruling on detention, release on bail, seizure or return of seized articles, shall be applied to a ruling on the custody of a criminal defendant for the purpose of making a decision on confinement, release on bail, seizure or appraisal, and Article 416 (1) provides that "if the presiding judge or a commissioned judge notifies a court ruling falling under any of the following subparagraphs, he may request the court to which the judge belongs to revoke or change the ruling."

In addition, the law uses the terms of court, presiding judge, commissioned judge, entrusted judge, judge, etc. as a trial agency. In general, the term "court" generally refers to the so-called court of the lawsuit in which a prosecution has been instituted and the lawsuit has been pending (However, the court is also a court which examines a request for examination of legality of arrest or detention or a case of application for adjudication) and "a presiding judge, a commissioned judge, an entrusted judge, a judge" refers to a trial agency

In addition, Article 37 of the Act is divided into judgment, decision, and order. Where the subject of judgment is "court", the form of judgment shall be "judgment, decision", and where the subject of judgment is "a presiding judge, commissioned judge, entrusted judge, or judge", the form of judgment shall be "order" (where it is difficult to distinguish whether a court decision is a presiding judge or a presiding judge because the subject of judgment is a single judge, even if it is difficult to distinguish the subject of judgment because it is the same, the decision of the court shall be made, and where matters of judgment of the presiding judge are matters of judgment of the presiding judge, the order shall be deemed to be order). The judgment shall be based on oral argument unless otherwise prescribed by law. The decision or order

However, Article 201(3) provides that "A judge of the district court who has received a request for a warrant of detention shall promptly determine whether to issue a warrant of detention, without specifying whether the law is a decision or an order with regard to the request for a warrant of detention by a public prosecutor." However, since the subject of the judgment is stipulated as "a judge who is not a court", the form of the judgment on the request for a warrant of detention by a public prosecutor shall not be considered as "the court decision"

Therefore, when a court decides to order the release of a suspect under detention on the condition that deposit money can be paid to guarantee the attendance of the suspect under Article 214-2(4) of the Act, the suspect or the prosecutor may file an appeal under Article 402 of the Act as far as there is benefit in the cancellation (Supreme Court Order 97Mo21 Dated August 27, 1997).

Next, under Article 70(1) of the Act, a judgment in which a court is in custody of a defendant ex officio by the court pursuant to Article 70(1) of the Act constitutes "decision of a court" and thus, an appeal may be made pursuant to Article 403(2) of the Act. A judgment in which a member of the collegiate court or a commissioned judge, who is a member of the collegiate court, is in custody of the defendant ex officio, constitutes "order of the presiding judge or the commissioned judge" and such judgment constitutes "order of the presiding judge or the commissioned judge", and a quasi-appeal may be made pursuant to Article 416 of the Act. However, since a detained defendant has the right to claim for revocation of detention and the right

However, in the investigation stage, a judgment binding a suspect upon the request of a public prosecutor or rejecting the request for a warrant of detention is “a judge’s order” as seen above, which does not fall under the “decision of a court” under Articles 402 and 403 of the Act, and does not fall under the “order of a presiding judge or a commissioned judge” under Article 416 of the Act, and thus, it is not subject to appeal or quasi-appeal (Supreme Court Order 2004Mo517 Dated March 31, 2005).

As such, the law only provides for a method of objection against “order of the presiding judge and commissioned judge,” and the method of objection against “order of the entrusted judge and commissioned judge” may be deemed insufficient legislation. However, if only the judgment issuing or dismissing the warrant of detention upon the prosecutor’s request is limited to the judgment dismissing the warrant of detention, the examination of legality of detention is conducted on the issuance of the warrant of detention, and the method of correcting the illegality of the original judgment is open through the re-request, so such legislative attitude does not seem to be particularly unreasonable.

4. Conclusion

Therefore, the prosecutor's quasi-appeal of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Kang-won (Presiding Judge)