Honam Petroleum Chemical Co., Ltd. 3

Prosecutor

Escopic iron

Attorney A and one other

Seoul Central District Court Decision 2007Ma7030 Decided February 12, 2008

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In light of the fact that a provision form and accusation of the Monopoly Regulation and Fair Trade Act are against criminal facts, the court below rendered a judgment dismissing public prosecution on the ground that an accusation by the Fair Trade Commission pursuant to the above Act applies the principle not to file a complaint or accusation, but the prosecution was instituted without accusation. In so doing, the court below erred by misapprehending the legal principles, which affected the conclusion of the judgment

2. The judgment of the court below on the facts charged of this case

The facts charged in the instant case are crimes falling under Articles 66(1)9 and 19(1)1 of the Monopoly Regulation and Fair Trade Act. The lower court determined that Article 233 of the Criminal Procedure Act does not apply mutatis mutandis to the accusation of the Fair Trade Commission under the Monopoly Regulation and Fair Trade Act, based on the following: (a) the facts charged in the instant case may be prosecuted only upon a complaint by the Fair Trade Commission pursuant to Article 71(1) of the Monopoly Regulation and Fair Trade Act; (b) there is no evidence to acknowledge any accusation against the Defendants; and (c) in a case where the accusation is a condition for a lawsuit against a certain crime, the accusation requires a declaration of intent to seek prosecution against the offender; (d) Article 233 of the Criminal Procedure Act does not apply mutatis mutandis to the accusation; (e) the provisions of Article 71 of the Monopoly Regulation and Fair Trade Act and the Fair Trade Act does not apply mutatis mutandis to the accusation; and (e) the application of Article 233 of the principle of no punishment without law to the indictment of the Fair Trade Commission.

3. Judgment of the court below

Unless the principle of no accusation is clearly established by the law or the case law, the principle of no accusation as asserted by the prosecutor can be applied mutatis mutandis to the accusation under the Monopoly Regulation and Fair Trade Act.

The purpose of an offense subject to victim's complaint, which is a requirement for prosecution, is to respect, in particular, the victim's intent in a case where it is deemed unnecessary to prosecute the victim by disregarding the victim's intent or appraisal, because the victim's complaint is a crime committed after being prosecuted and informing the general public of the crime, which is likely to cause double disadvantages or is relatively minor. Under the Criminal Procedure Act, the complainant's right to file a complaint is set at the period of six months from the date on which he/she becomes aware of the offender, and the complaint may be revoked until the judgment of the court of first instance is rendered (Article 223 through

Meanwhile, a public prosecution against an offense under Articles 66 and 67 of the Monopoly Regulation and Fair Trade Act may be instituted only when an accusation is filed by the Fair Trade Commission. The exclusive accusation right of the Fair Trade Commission is based on the purport that the priority of judgment on the necessity of punishment is given by law to the Fair Trade Commission, which is a professional institution. The Fair Trade Commission under the Monopoly Regulation and Fair Trade Act shall file a complaint with the Prosecutor General in cases where it is deemed that the degree of the offense is objectively obvious and serious among the crimes under Articles 66 and 67 of the same Act, and that the offense is substantially detrimental to competition order. The Prosecutor General may notify the Fair Trade Commission that it satisfies the above requirements for accusation and request the Prosecutor General to file a complaint after the public prosecution is instituted (Article 71

As can be seen, an accusation under the Monopoly Regulation and Fair Trade Act is only a requirement for a complaint and lawsuit under the Criminal Procedure Act, and is different from various points, such as the purpose of legislation, main body, etc. In addition, the degree of violation of the Act, which is the basis for the obligation to file a complaint under the Monopoly Regulation and Fair Trade Act, may vary depending on the market control rate, degree of participation, etc. of each enterpriser participating in the same criminal fact. As such, the obligation to file a complaint may vary depending on various enterprisers participating in the same unfair collaborative act. In light of the purport of the aforementioned legal provisions, inasmuch as the Fair Trade Commission appears to include the authority to exempt only part of accomplices with the authority not to file a complaint, an analogical application is inconsistent with the interpretation and interpretation of the Monopoly Regulation and Fair Trade Act. Therefore, the provision on “non-prosecution of a complaint” under the Criminal Procedure Act may not

4. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act for lack of reason.

Judges Lee Jae-sung (Presiding Judge)