[1] Legislative intent of Article 253(3) of the Criminal Procedure Act concerning the suspension of statute of limitations, and meaning of "the purpose of escaping criminal punishment" in this context where a person stays abroad

[2] The standard for determining whether an offender staying in a foreign country has "the purpose of escaping criminal punishment", and whether the offender can be recognized as "the purpose of escaping criminal punishment" even during the period in which the offender was confined for other crimes in a foreign country

[3] In a case where a person who committed a violation of the Illegal Check Control Act, the statutory maximum punishment of which is five years has been sentenced to 14 years of imprisonment and/or more than 14 years of imprisonment and was sentenced to her stay in China, and was detained to Korea for 8 years or more, and was indicted for the above crime, the case holding that the statute of limitations has not been suspended since it cannot be acknowledged the "purpose of escaping criminal punishment" under Article 253 (3) of the Criminal Procedure Act during the period of confinement

[1] The legislative intent of Article 253(3) of the Criminal Procedure Act for the suspension of the statute of limitations is to properly realize the penal authority by preventing the statute of limitations from proceeding in a case where an offender stays in a foreign country where the Republic of Korea’s judicial power does not substantially reach an escape. Therefore, “the purpose of escaping criminal punishment” as prescribed by the above provision is not limited to the only purpose of staying in a foreign country, but is included in several overseas staying purposes of the offender. If the offender’s staying in a foreign country was a tool to escape criminal punishment, it can be deemed that there was “the purpose of escaping criminal punishment” and “the purpose of escaping criminal punishment” has been maintained during the period of staying in a foreign country unless there exist objective circumstances where the offender clearly expresses his/her subjective intent inconsistent with the above “purpose of escaping criminal punishment”.

[2] In a case where there is a doubt as to whether there exists a “purpose of escaping criminal punishment” under Article 253(3) of the Criminal Procedure Act against an offender staying abroad during the said period, the issue of whether there exists a “purpose of escaping criminal punishment” should be determined by considering all the circumstances, such as the period of the statute of limitations for the relevant crime, circumstances where the offender could not return to Korea, the circumstances arise, whether the period in which the offender could not return to Korea, whether the intent of escape is a continuous long-term period, whether the intent of return to Korea is notified to an investigation agency or a consular official, and whether the defendant’s living base is located in a foreign country. In ordinary, in a case where the offender is confined to other crimes in a foreign country, the statutory punishment for the relevant crime is higher than the statutory punishment for the relevant crime, and if it is sufficiently recognized that the period in which the criminal was actually committed exceeds the period of the statute of limitations for the relevant crime, and if so, there exists sufficient reason to prove that the prosecutor could not escape criminal punishment.”

[3] In a case where a person who committed a violation of the Illegal Check Control Act, the statutory maximum punishment of which is five years has been sentenced to 14 years of imprisonment and stay in China, was sentenced to 14 years of imprisonment and sentenced to 14 years of imprisonment at that place, and was detained to Korea for 8 years or more, and was indicted for the above crime, the case holding that the statute of limitations has not been suspended since it cannot be recognized the "purpose of escaping from criminal punishment" under Article 253 (3) of the Criminal Procedure Act

[1] Article 253 (3) of the Criminal Procedure Act / [2] Article 253 (3) of the Criminal Procedure Act / [3] Article 253 (3) of the Criminal Procedure Act

[1] Supreme Court Decision 2002Do4994 decided Jan. 24, 2003 (Gong2003Sang, 742) Supreme Court Decision 2005Do7527 decided Dec. 9, 2005 (Gong2006Sang, 152)

Defendant

Prosecutor

Attorney Use-at-law

Seoul Central District Court Decision 2008No616 Decided April 25, 2008

The appeal is dismissed.

The grounds of appeal are examined.

Article 253(3) of the Criminal Procedure Act provides, “The statute of limitations shall be suspended during the period of criminal punishment where the offender stays abroad for the purpose of escaping criminal punishment.” The legislative purport of the above provision is to properly realize the penal authority by preventing the statute of limitations from proceeding during the period of stay in a foreign country in a case where the offender stays abroad for the purpose of escaping criminal punishment. Therefore, the “purpose of escaping criminal punishment” as prescribed by the above provision is not limited to the only purpose of staying in a foreign country, but is included in several overseas cases where the offender stays in a foreign country for the purpose of escaping criminal punishment (see, e.g., Supreme Court Decisions 2005Do7527, Dec. 9, 2005; 2006Do8277, Feb. 8, 2007). If the offender’s stay in a foreign country was used as a means of escape from criminal punishment, barring any particular circumstance, it can be deemed that the offender had an objective purpose of escaping criminal punishment,” and there is no objective reason to escape from criminal punishment.

On the other hand, in a case where there is a doubtful reason as to whether there exists a "purpose of escaping criminal punishment" against an offender staying in a foreign country, the issue of whether there exists a "purpose of escaping criminal punishment" during that period shall be determined by taking into account all the circumstances, such as the period of the statute of limitations for the relevant crime, the circumstances leading up to the occurrence of a situation in which the offender cannot return to Korea, the continuous long-term period to the effect that the intent of escape is not recognized compared with the period of the statute of limitations for the relevant crime, whether the intent of return to Korea has been notified to an investigation agency or a consular post, and the place where the defendant's living base is located. In light of such standard, in a case where the ordinary offender is confined in a foreign facility for other crimes in a foreign country, the statutory punishment for the relevant crime is higher than the statutory punishment for the relevant crime, and if it is sufficiently recognized that the period of imprisonment for the crime actually becomes more than the period of the statute of limitations for the relevant crime, if there is sufficient reason to prove that the prosecutor has maintained such a "purpose of criminal punishment".

According to the facts charged in this case and the facts acknowledged by the court below, the defendant committed a violation of the Illegal Check Control Act from June 1995 to November 1, 1996, and committed a crime while leaving China with his family living in this country and operating his business in this country, and sentenced to a punishment of 14 years of imprisonment, which was sentenced to a punishment of 14 years of imprisonment from March 13, 1998, and sentenced to a reduction of the number of facilities in China for 8 years and 10 months from that of January 13, 1998. The prosecution of this case was instituted on September 19, 207. Considering that the statutory punishment of the violation of the Illegal Check Control Act was the maximum five years of imprisonment with prison labor, and the period of the statute of limitations is only five years of imprisonment with prison labor, and that the defendant could not escape from the criminal punishment of this case with his intention to return to China for 10 years or more from that time, in view of the fact that the defendant could not escape from the criminal punishment of this case.

Ultimately, the court below is just in maintaining the judgment of the court of first instance that acquitted the defendant on the ground that the statute of limitations has expired for the defendant's violation of the Illegal Check Control Act while the defendant was confined in China, and the statute of limitations has expired at the time of the prosecution of this case, and there is no violation of law by misapprehending the legal principles as to Article 253 (3) of the Criminal Procedure Act, contrary to the allegations

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

Justices Ahn Dai-hee (Presiding Justice)