[1] Whether a member of the National Assembly constitutes an act subject to the privilege of exemption (affirmative)

[2] Whether a prosecution authority may institute a prosecution or a court may deliberate on whether an act constitutes a crime with respect to which a member's immunity is recognized (negative)

[1] An act subject to the exemption privilege includes not only the expression of opinion and voting within the National Assembly, which is essential to perform the duties of the National Assembly, but also the act that is usually incidental thereto. Thus, since a member of the National Assembly is to collect information necessary for legislative activities of the National Assembly and to carry out state control functions, an inquiry or questioning that a member of the National Assembly makes to a member of the National Assembly or a government from a committee of the National Assembly or a state inspection place about a member of the National Assembly constitutes an act subject to the exemption privilege. In addition, a member of the National Assembly requests a member of the National Assembly to submit data to the government and an administrative agency within the National Assembly is necessary for carrying out legislative and state control activities, so if that is for preparing questions or questions in the course of performing his

[2] If an investigative agency investigates whether an act constitutes a criminal act with respect to a member of the National Assembly, which is recognized as having the privileges of immunity, or a court examines it, it shall not be prosecuted on the ground that an act with respect to a member of the National Assembly constitutes an act with respect to which the member's duty constitutes a criminal act, nor shall it interfere with freely speaking or voting at the National Assembly, but it be contrary to the purport and spirit of the constitutional provisions recognizing the privileges of immunity, and therefore, the prosecution agency may not institute a public prosecution on the ground that the act with respect to which the member's duty is recognized as having the privileges of immunity becomes a crime

[1] Article 45 of the Constitution / [2] Article 45 of the Constitution, Article 327 of the Criminal Procedure Act

[1] Supreme Court Decision 91Do3317 delivered on September 22, 1992 (Gong1992, 3038)

Defendant

Defendant

Attorney Seosan-sung

Seoul High Court Decision 96No929 delivered on June 21, 1996

The appeal is dismissed. 130 days out of detention days after the appeal shall be included in the original sentence.

Examination of the Grounds of Appeal

1. As to the remaining parts of subparagraphs 1 through 8, excluding those related to the privilege of the National Assembly member immunity

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding the defendant guilty of all the facts constituting the crime of this case for the reasons stated in its judgment, and there is no error in finding facts or failing to exhaust all deliberations in violation of the rules of experience or the rules of evidence, and there is no error in the misapprehension of legal principles or errors in the application of Acts and subordinate statutes as pointed out in the ground of

2. As to the grounds of appeal related to the National Assembly member's privilege

Article 45 of the Constitution provides that "National Assembly members shall not be held responsible outside the National Assembly with respect to statements and voting held by the National Assembly." The purpose of Article 45 is to ensure that National Assembly members can freely speak and vote within the National Assembly as representatives of the people so that the National Assembly can exercise their authority granted by the Constitution, such as legislative and state control, and can smoothly perform their functions. Therefore, the act subject to the immunity is not limited to the expression of opinion, such as the expression of opinion and voting within the National Assembly, essential to perform the duties of the National Assembly members, but also the act incidental thereto (see Supreme Court Decision 91Do3317, Sept. 22, 1992). Since a National Assembly member's questioning or questioning a member of the National Assembly or government in the committee or the inspection division of the National Assembly is to collect information necessary for legislative activities of the National Assembly and carry out the functions of state control, it falls under the privilege, it is necessary to recognize that the National Assembly member's right to ask questions to the Government and administrative agencies within the National Assembly member's duty.

If an investigative agency investigates whether an act constitutes a criminal act with respect to a member of the National Assembly, which is recognized as the privileges of immunity, or a court examines it, it shall not be prosecuted for the reason that an act with respect to which a member of the National Assembly becomes an act with respect to which a member of the National Assembly can freely speak or vote, nor constitutes an act with respect to which a member of the National Assembly constitutes an act with respect to which a member of the National Assembly, and thus, it shall not be prosecuted for the reason that an act with respect to which a member of the National Assembly is recognized as privileges of immunity becomes an act with respect to which a member of the National Assembly, and the court shall not

According to the reasoning of the first instance judgment cited by the court below, when recognizing the crimes of attack as stated in paragraphs (2), (3), (4), and (6) of the above facts constituting a crime, the defendant who is a member of the National Assembly stated the facts that he requested the government agencies, etc. to submit materials in relation to the matters of state affairs under the jurisdiction of the National Assembly, such as the Financial Committee of the National Assembly, the Financial and Economic Committee, or the inspection chief, in order to ask the government agencies, etc. to ask questions or to prepare for such questions about the alleged suspicions, etc. of the pertinent enterprises. However, the defendant stated that he was a member of the National Assembly, in relation to the contents of the above questions or requests to submit materials to the management owners, officers, etc. of the relevant enterprises outside the National Assembly, and some of the facts that he received money. However, this does not seem to have been recognized by the court below after examining whether the questioning or the requests to submit materials incidental to the above statements constitute an act of attack or means of conflict, and it does not seem somewhat appropriate in the expression method.

Therefore, we cannot accept the part of the grounds of appeal that the lower court erred by recognizing the duty-related act recognized as an act constituting a criminal offense against a criminal offense.

3. Therefore, the appeal shall be dismissed, and one hundred and thirty days of detention days after the appeal shall be included in the original sentence of the judgment below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)