Defendant

Prosecutor

Exchange of Labor Union

Law Firm Dongin, Attorney Kim principal-hoon

Seoul Central District Court Decision 2008 Godan1135 Decided June 12, 2008

The judgment of the court below is reversed.

The case is remanded to the Seoul Central District Court alone.

1. Summary of the facts charged

From March 2006 to September 5, 2007, the Defendant employed 12 Chinese nationals who did not have the status of sojourn eligible for employment as shown in the attached list of crimes, including the employment of Nonindicted 1, China, who had only a student (D-2) at the ○○○○ Chinese Fishery Research Institute located in Gangnam-gu Seoul (hereinafter omitted), at the intervals of 12,00 to 13,000 won per hour, and employed 12 Chinese nationals who did not have the status of sojourn eligible for employment as shown in the attached list of crimes.

2. The judgment of the court below

According to Article 101 of the Immigration Control Act, when an investigation agency, other than an immigration control official, enters the same immigration offense case as this case, there is a duty to hand over the case to the head of the office, the head of the branch office, or the head of the foreigner internment camp (hereinafter referred to as the "head of the office, etc.") without delay, and if a general police or the prosecutor simply requests an accusation and fails to hand over the case, and the prosecutor continues the investigation while he/she does not hand over the case, he/she may institute a prosecution, or if the prosecutor, etc. files a complaint with the general investigation agency, he/she does not seem to be able to choose whether to hand over the case

In addition, according to the above provisions of the Immigration Control Act, the complaint, etc. to whom the case is transferred shall determine whether to file a complaint after going through a practical investigation.

Article 6 of the Punishment of Tax Evaders Act provides that "the offense under the provisions of this Act shall be brought against the Commissioner of the National Tax Service, the commissioner of a regional tax office, the head of a tax office, or a public official engaged in tax affairs: Provided, That the same shall not apply to the offense under the provisions of subparagraph 2 of Article 12-2 or Article 15." Since Article 101 of the Immigration Control Act is similar to that of Article 101 of the same Act, according to the interpretation of Article 6 of the Punishment of Tax Evaders Act, a public official's accusation under the provisions of Article 6 of the Punishment of Tax Evaders Act is not the requirement for prosecution and the commencement of investigation is not the requirement for the commencement of an investigation. Thus, even if a public official's accusation under the provisions of Article 6 of the Punishment of Tax Evaders Act is investigated prior to an accusation and the head of a tax office files a complaint at the prosecutor's request after issuance of a detention warrant against the accused, the procedure for prosecution against the accused against the violation of the Punishment of Tax Evaders Act shall not be invalid (Supreme Court Decision 94Do373).

According to the above circumstances, the head of Suwon Immigration Office's accusation of this case is not only a clear violation of Article 101 (2) of the Immigration Control Act, but also a defect that does not go through a substantial investigation to determine whether to take a notice disposition on this case.

The investigation of an immigration offender is generally conducted by a foreigner as a suspect or as a witness, and it is reasonable to conduct a primary investigation by a warden, etc. specialized in the investigation because the foreigner is the language of the investigation and the barriers to culture. The fact that the foreigner's human rights protection can be fulfilled, the warden, etc. conducts a disposition of notification rather than filing a complaint is most favorable to the suspect. However, the investigation procedure of this case seems to have violated the provisions of the procedure for accusation under the Immigration Control Act, and generally, the evidence collected through the unlawful procedure should be excluded when there is an illegal cause under the investigation procedure. However, in light of the fact that if the provisions of the procedure for accusation under the Immigration Control Act are violated, the illegally collected evidence alone is insufficient to protect the effect of the violation, it is reasonable to deem that the above defect is significant even if there is considerable lack of personnel and accommodation facilities of the immigration control office, branch office or foreigner internment camp. Thus, the accusation of this case is not effective.

Therefore, this case is deemed to have been prosecuted by an accusation by the head of the Suwon Immigration Office having no effect. Thus, this case constitutes a case where a prosecution procedure is invalidated due to a violation of the law, and the prosecution is dismissed under Article 327 subparagraph 2 of the Criminal Procedure Act.

3. Summary of the grounds for appeal by the prosecutor - Legal principles

In light of its legislative intent, the head of Suwon Immigration Office cannot be deemed as null and void for the accusation of the head of the instant Immigration Office, including the fact that 91 personal information attached to the written request for accusation received from the Gyeonggi Provincial Police Agency was confirmed by all their status of stay and was withdrawn from the accusation, and that the accusation of Article 101 of the Immigration Control Act is only the requirement for institution of prosecution, not the requirement for commencement of investigation, and that Article 101 (2) of the Immigration Control Act does not recognize exclusive investigation authority to the head of the Immigration Control Office, etc.

4. Judgment of the court below

A. Circumstances of the instant accusation

According to the evidence duly admitted and examined by the court below, the Gyeonggi Provincial Police Agency prepared a suspect examination protocol of the defendant on September 20, 2007 without delay without transferring the case to the director, etc. on the same day. On November 30, 2007, the Gyeonggi Provincial Police Agency requested the head of the Gyeonggi Immigration Office to file a complaint against 91 persons including other suspect cases, and attached only 91 personal information and criminal summary report to the head of the Gyeonggi Immigration Office, and did not attach a suspect examination report, etc.; the head of Suwon Immigration Office filed a complaint against the defendant with the Gyeonggi Provincial Police Agency on Jan. 18, 2008; the head of the Suwon Immigration Office stated the reasons for the accusation against the defendant by submitting a written opinion on Jan. 18, 2008; the defendant's list; the request for accusation by the Gyeonggi Provincial Police Agency; and the statement on the criminal facts to the head of the Gyeonggi Provincial Police Agency; and it stated the reason for accusation under Article 101 (1) of the Immigration Control Act."

B. Whether the instant accusation is formally null and void

Article 102 (1) of the Immigration Control Act provides that "the head of the office, the head of the branch office, or the head of the head of the branch office, or the head of the head of the foreigner internment camp may notify an immigration offender of the payment of an amount equivalent to a fine (hereinafter referred to as "penalty") in writing, specifying the reasons for the investigation." Article 102 (3) of the Immigration Control Act provides that "the head of the office, the head of the branch office, or the head of the foreigner internment camp, if the circumstances of the offense are deemed to be punished by imprisonment without prison labor or more severe punishment as a result of the investigation, shall immediately file an accusation." Thus, the head of the office, the head of the branch office, or the head of the foreigner internment camp, while granting the head of the office, etc. a discretionary authority to notify the offender of the penalty (it does not give the immigration offender the right to receive a penalty notice) but if there is a specific case, it cannot be concluded that the case is minor. In light of the fact that the head of the foreigner internment office, including 12 Chinese in the indictment attached to the written request for accusation, it cannot be seen.

Even if the accusation by the head of the Dongwon Immigration Office was formally based on the request of the Commissioner General of the Gyeonggi National Police Agency, the accusation cannot be deemed null and void.

In addition, Article 101(1) of the Immigration Control Act provides that "A case concerning an immigration offender shall not be prosecuted unless the head of the office, the head of the office, or the head of the office, the head of the branch office, or the head of the foreigner internment camp files an accusation against the immigration offender" and Article 101(2) of the Immigration Control Act provides that "if an investigation agency other than an immigration control official has entered a case falling under the main sentence of paragraph (1), the head of the office, the head of the office, or the head of the foreigner internment camp shall without delay transfer the case to the head of the office, the head of the branch office, or the head of the foreigner internment camp." However, an accusation by the head of the immigration control office does not require the commencement of an investigation (in light of Article 101(2) of the Immigration Control Act premised on the fact that an investigation agency other than the immigration control official may bring an immigration offender into the Republic of Korea, it is evident that the investigation of the immigration offender need to grant special judicial police power to the immigration control official. In particular, considering the necessity of the Gyeonggi Provincial Police Agency's.

5. Conclusion

Therefore, the court below dismissed the prosecution of this case on the ground that the indictment of this case does not constitute a case where the indictment of this case is null and void, and it erred by misapprehending the legal principles as to accusation, etc. under Article 101 of the Immigration Control Act. Thus, since the prosecutor's appeal pointing this out has merit, it is reversed the judgment of the court below pursuant to Article 366 of the Criminal Procedure Act and remanded

[Attachment]

Judges or higher-rankings (Presiding Judge)