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헌재 2004. 6. 24. 선고 2004헌마205 결정문 [불기소처분취소]
[결정문] [전원재판부]

204Hun-Ma205 Revocation of a non-prosecution disposition


Kim Jong-tae

Seoul General Law Firm



Daejeon District Public Prosecutor's Office in the astronomical Branch Office


The appellant's appeal is dismissed.


1. Case summary

The following facts are acknowledged according to the records of this case and the investigation records of the Daejeon District Prosecutors' Office (the records of non-prosecutions case No. 2003-type 2870 of the Daejeon District Prosecutors' Office).

(a) Complaints by an appellant;

On February 4, 2003, the claimant filed a complaint against the Jeoncheon-gu (hereinafter referred to as the "defendant") with the Daejeon District Prosecutors' Office as a crime of fraud (Article 2003 type No. 2870). The gist of the crime is as follows.

B. Summary of the suspected facts

The defendant at the office of ○○ Food System, which is located in the Sinan-si, Yancheon-si, Sinan-si on January 2002, the defendant did not have the intention or ability to lend money to the claimant.

The Gu and the 100 million won will be loaned out of the business fund, and the prior security for the loan money is demanded. On February 14, 2002, the ○○ apartment 1702 Dong-dong, Seocheon-dong, Seocheon-dong, Seocheon-si, Seocheon-gu, Seocheon-si, the claimant owned, did not lend the above money even after completing the registration of creation of collateral security of 150 million won with the maximum amount of the debt, which the defendant as the mortgagee, and on August 14, 2002, on the ground of an investment agreement unrelated to the above loan agreement, 130 million won, which is part of the amount of the above investment agreement, applied for the auction of real estate with the claim claim amount on or around August 17, 2002.

(c) Disposition and progress of the appellee;

On May 7, 2003, the respondent who investigated the above accusation case filed a non-prosecution disposition. The appellant appealed against the above non-prosecution disposition and filed a complaint under the Public Prosecutor's Office Act (Seoul High Public Prosecutor's Office No. 2003, No. 539), and the reappeal (Seoul High Public Prosecutor's Office No. 2003, No. 3516), but all of which were dismissed, the respondent filed a petition for the revocation of the above non-prosecution disposition on March 15, 2004 by asserting that the respondent's exercise of his right to equality and right to state the procedure of trial by the respondent was infringed.

2. Determination:

Even if detailed examination of records and documentary evidence is conducted, it is not deemed that the respondent has committed an investigation that goes against justice and equity, or committed a serious error that affected the decision of non-prosecution in the selection of evidence and the judgment of value, and in the interpretation and application of the Constitution, and there is no data to regard the above disposition of non-prosecution by the respondent as an arbitrary disposition to be involved in the Constitutional Court. Therefore, it cannot be said that the fundamental rights guaranteed by the claimant have been infringed.

3. Conclusion

Therefore, the claimant's appeal of this case is without merit, and it is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

June 24, 2004


Justices Yoon Young-young of the presiding Justice

State Judgment Officer Kim Young-young

Jurisdiction of Justice

Justices Kim Yong-soo

Justices Kim Jong-il

Justices Song Jin-in-Law

Efficence of Justices

Senior Justice;