[1] Whether an investigation conducted by a general judicial police officer retroactively becomes unlawful before an accusation is filed by the head of the Immigration Office against an immigration offender (negative in principle)

[2] Whether an investigation conducted by a general judicial police officer without handing over an immigration offender to the head of the Immigration Office, who is the exclusive person having exclusive authority over an immigration offender, constitutes an unlawful act retroactively (negative)

[3] In a case where the defendant was prosecuted for violation of the former Immigration Control Act by employing foreigners without status of stay, the case affirming the judgment below which held that the investigation by the local police agency and the prosecutor does not constitute an unlawful act or a violation of the law and thus invalid merely because the local police agency and the prosecutor's office conducted the investigation without without promptly handing over the above case to the head of the competent immigration office

[1] In a crime that can be discussed only when a complaint or accusation is filed under the law, a complaint or an accusation is merely a condition for prosecution, and is not a requirement for establishing the pertinent crime or a condition for investigation. Thus, even if an investigation is conducted before a complaint or an accusation is filed with respect to the above crime, barring special circumstances such as where the investigation is conducted under the condition that there is no possibility of a complaint or an accusation, the investigation does not become unlawful solely on the ground that the investigation was conducted before a complaint or an accusation is filed. Thus, even if a general judicial police official conducts an investigation before a complaint or an accusation is filed by the head of the Immigration Office, etc. against an immigration offender, barring any special circumstances as set forth above, the investigation does not retroactively

[2] Article 101 of the former Immigration Control Act (amended by Act No. 10282, May 14, 2010) provides for the head of the Immigration Control Office's exclusive right to file a criminal complaint under Article 101 (1) of the former Immigration Control Act, and Paragraph (2) provides that when a general judicial police officer has taken an immigration offender, he/she shall hand over it to the head of the office without delay, and in light of the purport of the provision, it is reasonable to view that it is for the convenience of exercising the exclusive right to file a criminal complaint by the head of the office, etc. under paragraph (1) of the same Article, and therefore, it should be respected in relation to the general judicial police officer. However, insofar as it cannot be seen as a provision

[3] In a case where the defendant employed foreigners without status of stay, and was indicted for violation of the former Immigration Control Act (amended by Act No. 10282, May 14, 2010), and the local police agency which entered the case was engaged in an investigation without any accusation and without delay transferred the case to the head of the competent immigration office, and thereafter the head of the office subsequently stated that "the reason for accusation was clearly proved by the official document, etc. at the request of the commissioner of the district police agency" was stated in the above accusation at the request of the commissioner of the district police agency, the court affirmed the judgment below that the above accusation made by the head of the office in light of the circumstances of the accusation cannot be deemed null and void since it was conducted at his discretion, and the fact that the head of the office violated Article 101 (2) of the same Act does not constitute a case where the investigation by the local police agency and the prosecutor or the procedure for indictment

[1] Articles 101 and 102(1) and (3) of the former Immigration Control Act (Amended by Act No. 10282, May 14, 2010); Article 3(5) of the Act on the Persons Performing the Duties of Judicial Police Officers and the Scope of their Duties; Article 2 subparag. 5 of the Act on the Performance of Duties by Police Officers / [2] Article 101(1) and (2) of the former Immigration Control Act (Amended by Act No. 10282, May 14, 2010) / [3] Articles 18(3) and 94 subparag. 5-2 (see current Article 94 subparag. 9), 101(1) and (2), Article 102(1) and (3) of the former Immigration Control Act (Amended by Act No. 10282, May 14, 2010); Article 2 subparag. 37, 2012>

[1] Supreme Court Decision 94Do252 delivered on February 24, 1995 (Gong1995Sang, 1512)

Defendant

Defendant

Law Firm Dongin, Attorneys Won Chang-chul et al.

Seoul Central District Court Decision 2008No1995 Decided August 14, 2008

The appeal is dismissed.

The grounds of appeal are examined.

According to Article 101(1) of the former Immigration Control Act (amended by Act No. 10282, May 14, 2010; hereinafter “Act”), a case concerning an immigration offender shall not be prosecuted unless the head of an office, the head of a branch office, or the head of a foreigner internment camp (hereinafter “head of the office, etc.”) files a complaint with respect to an immigration offender. When an investigation agency, other than an immigration control official, has established a case concerning an immigration offender, the case shall be transferred without delay to the head of the office, etc. In the meantime, the immigration control official shall perform the duties of a judicial police officer with respect to an immigration offense (Article 3(5) of the Act on Persons Performing the Duties of Judicial Police Officials and the Scope of their Duties), the head of the office, etc. may notify the immigration offender of an amount equivalent to a fine in writing specifying the reason thereof if he/she has obtained the confirmation of a crime as a result of investigating the immigration offender, and if deemed that the criminal is punishable by imprisonment without prison labor or heavier punishment,

As such, the purport of granting the head of the office, etc. the status of a special judicial police officer as a special judicial police officer, along with the exclusive accusation right, is to allow immigration control officials with professional knowledge and experience in immigration control to use autonomous and administrative sanctions in preference to criminal punishment in order to achieve the administrative purpose concerning immigration control. However, there is no provision that allows immigration control officials to take exclusive charge of investigation, and thus, the investigative authority over immigration offenders of general judicial police officers performing their duties for the purpose of public safety and maintenance of order pursuant to Article 2 subparag. 5 of the Act on the Performance of Duties by Police Officers is not excluded notwithstanding the provisions of the above Act.

However, in a crime that may be prosecuted only upon a complaint or accusation under the law, a complaint or accusation is merely a condition for prosecution, and is not a requirement for the establishment of the crime or a condition of investigation. Thus, even if an investigation was conducted before a complaint or accusation is filed with respect to the above crime, barring special circumstances, such as that the investigation was conducted under a condition that there is no possibility of a complaint or accusation, the investigation does not become unlawful solely on the ground that the investigation was conducted before a complaint or accusation is filed (see Supreme Court Decision 94Do252 delivered on February 24, 195, etc.).

Therefore, even if a general judicial police officer conducted an investigation before a complaint is filed by the head of the office, etc. on an immigration offender, the investigation does not retroactively become unlawful, barring special circumstances as seen earlier. Article 101 of the Act provides for the head of the office, etc.’s exclusive right to file a criminal charge under Article 101(1) of the Act, and Article 101 of the Act provides that when a general judicial police officer has taken an immigration offender, he/she shall hand over the offender without delay to the head of the office, etc., and in light of the purport of the provision, it shall be respected in relation to a general judicial police officer, as long as it is not deemed to be a provision on the exclusive right to file a criminal charge under Article 10(1) of the Act, the investigation by a general judicial police officer who violated the provision shall

The court below acknowledged the circumstances leading up to the instant accusation, and determined that the accusation conducted by the head of Suwon Immigration Office without a notification disposition cannot be deemed null and void since it was conducted in accordance with the specific review of the instant case, and that the investigation conducted by the Gyeonggi Provincial Police Agency and the prosecutor by the Gyeonggi Provincial Police Agency and the prosecution cannot be deemed unlawful or that the indictment procedure cannot be deemed null and void because it violated the provisions of Article 101(2) of the Act. In light of the aforementioned legal principles, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles on the accusation and investigation of immigration offenders.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)