The case holding that the prosecutor's act does not constitute tort against the complainant even if the prosecutor prosecuted a part of the facts of accusation, omitting a part of the facts of accusation, for which the criminal charge was found, and issued a non-suspect disposition against a part of the facts of accusation.

The case holding that the prosecutor's performance of duties does not constitute an illegal act against the complainant, even if the prosecutor first rendered a final judgment of conviction for the crime charged which was not charged but subsequently rendered a final judgment of acquittal, but later rendered a final judgment of acquittal that did not recognize the suspicion of a certain crime, and if the prosecutor decided that there was no suspicion of a crime against some of the facts charged through lawful investigation procedures, and that there was no suspicion of a crime against the complainant, the prosecutor's performance of duties does not constitute an illegal act against the complainant, in light of all the circumstances at the time, if the prosecutor decided that there was no suspicion of a crime against some of the facts charged through legitimate investigation procedures.

[1] Article 750 of the Civil Code, Article 2 of the State Compensation Act

Preferred to in the fields of interest

Korea

Daegu District Court Decision 2001Gadan58181 Delivered on November 20, 2002

Supreme Court Decision 2003Da32582 Delivered on August 20, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff KRW 10 million (the plaintiff reduced the claim in the trial).

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account all the arguments in Gap evidence 1 to 23 and Eul evidence 1.

(a) On April 29, 199, the Plaintiff opened a securities account at the Daegu branch of the same securities and entrusted the purchase of shares of the treatment tea sales company to the Nonparty, who is the head of the above branch office, on April 30, 199, and deposited KRW 20 million in deposit.

B.However, from May 4, 199 to June 15, 1999, the Nonparty arbitrarily purchased and sold shares of the ELD Securities Co., Ltd., other than the shares of the ELD Co., Ltd. (hereinafter referred to as the "first voluntary sale"), and thereby, incurred loss of KRW 6,119,091 in total.

C. Around June 16, 1999, the Plaintiff reported the details of transactions sent by the same securities to the Nonparty, and requested the Nonparty to compensate for the said damages on the 14th day of the same month, knowing the Nonparty’s first voluntary sale at the same time. On the 22th day of the same month, the Nonparty: (a) on the 21st day of the same month, at his own discretion without the Plaintiff’s delegation (hereinafter referred to as “second voluntary sale”); and (b) on the 21st day of the same month, the Nonparty promised to pay KRW 20 million principal and KRW 4 million to the Plaintiff by July 31 of the same year, instead of concealing the fact that the Nonparty had the Nonparty make the Nonparty sell the stocks by consignment to the Nonparty; and (c) accordingly, (d) the Nonparty promised to pay KRW 5,402,000,000 to the Plaintiff by July 31 of the same year the amount of the principal and KRW 20 million as the statutory interest and KRW 4 million.

D. After that, the Plaintiff was aware of the Nonparty’s second voluntary trade. On August 5, 199, the Plaintiff filed a criminal complaint with the Daegu District Prosecutors’ Office on the 11st of the same month, upon receiving the letter from the Nonparty that the Plaintiff could not return the principal and interest of the investment pursuant to the said promise, since the Nonparty did not have any money from the Nonparty.

(e)The police officer Park Jong-gu Police Station affiliated with the Daegu Police Station ordered by the Prosecutor of the Daegu District Prosecutors' Office to investigate and transfer the above case, and after completion of the investigation into the Plaintiff and the Nonparty, etc., the first voluntary trade of the Nonparty was regarded as a violation of the Securities and Exchange Act and sent it to the prosecution opinion.

F. On September 19, 199, the Plaintiff sent correspondence to the public prosecutor Kim Young-young of the Daegu District Public Prosecutor's Office, who was investigated on September 19, 199, and included the amount of damage caused by the second voluntary trade omitted from the police investigation result, and the Nonparty, who prepared a letter of payment for the return of the principal and interest of the investment and escaped without implementing it properly, urged the Nonparty to investigate and punish the said suspicion of fraud. However, Kim Young-dae urged the Nonparty to investigate and punish the said suspicion of fraud. However, according to the Nonparty's opinion on the transfer of Park Ho-ho on the 30th of the same month, only the first voluntary trade of the Nonparty was indicted as a violation of

G. On December 18, 1999, the Nonparty filed an application for formal trial with a summary order of KRW 3 million from the Daegu District Court, which was sentenced to a fine of KRW 3 million on April 14, 2000, and appealed on April 20, 200, but the appeal was dismissed on June 24, 199 and the above judgment became final and conclusive on July 7, 200 of the same year.

H.On the other hand, after filing a summary indictment against the Nonparty on January 200, the Plaintiff submitted to Kim Young-dae a written petition demanding the Nonparty to investigate and punish the Nonparty’s second voluntary trade and the Nonparty’s suspicion of fraud. Accordingly, Kim Young-dae ordered the Nonparty to investigate and forward the Nonparty’s debt status at the time of the preparation of the written statement of payment against the Nonparty, etc. according to the investigation direction of Kim Young-gu, Kim Young-dae’s investigation, and investigated the Nonparty’s debt status, the reason for retirement, the current bad credit standing, and the details of investment in the shares sold at the discretion of the Plaintiff after preparing the written statement of payment, and then sent the second written statement of payment to the Nonparty, but it is difficult to recognize the charge of the crime by itself. The Kim Young-dae accepted it for public inspection.

I. On June 1, 200, the Plaintiff filed a criminal complaint against Kim Young-dae, etc. on the part of the crime of neglecting official duties. On July 28, 2000, the prosecutor’s regular repayment to the Daegu District Prosecutors’ Office rendered a non-prosecution disposition on the grounds that there was no criminal charge against Kim Young-dae, etc. The Plaintiff filed a complaint and re-appealed, but all dismissed. On February 2001, the Plaintiff filed a constitutional complaint seeking revocation of the above non-prosecution disposition, but the decision of dismissal was rendered on June 8, 200.

(j)On the other hand, on July 24, 2000, after the Non-party's complaint was filed against the plaintiff for the abandonment of duties, Kim Young-dae was prosecuted for violating the Securities and Exchange Act. However, on September 27, 2001, the above suspected facts were pronounced acquitted on the grounds that the judgment was related to the fact of the first voluntary sale and the fact of the second comprehensive sale.

2. The plaintiff's assertion and judgment

A. The plaintiff, the police officers belonging to the Seocho Police Station omitted the facts of the second voluntary trade suspicion of the non-party who is the defendant, and transferred only the facts of the first voluntary trade suspicion to the prosecution violation of the Securities and Exchange Act. The prosecutor Kim Young-young, who belongs to the Daegu District Prosecutor's Office, knew of the non-party's omission of some of the facts of suspicion by the plaintiff's written petition submitted by the plaintiff, and knew of the non-party's omission, the prosecutor Kim Young-young, who is belonging to the Daegu District Prosecutor's Office, shall not prosecute the first voluntary trade as stated in the police's transfer opinion, nor intentionally neglect his duties by failing to prosecute the non-party's second voluntary trade and the criminal punishment for the non-party's suspicion of fraud. Accordingly, the plaintiff suffered mental suffering because the fact of the crime was not revealed, the defendant, who is a public official belonging to the Daegu District Prosecutor's office, was liable to compensate the plaintiff for mental

B. According to the facts found in the above, since the non-party's act of voluntary purchase and sale at will without being entrusted by the plaintiff constitutes "voluntary sale and purchase" which is subject to criminal punishment under the Securities and Exchange Act, the prosecutor Kim Young-young who investigated the case of complaint against the non-party shall determine whether to prosecute or not after considering the necessity of punishment. If the necessity of punishment is recognized, several criminal facts of the same kind as the continuing act in this case should not be omitted. If the non-party knew of the criminal facts which were partially omitted after the prosecution, the non-party's failure to inform the non-party of the indictment before the first established facts charged, but the non-party's decision of acquittal was not issued after the prosecution. However, the non-party's failure to inform the prosecutor of the above fact that the non-party's duty was not proper as the prosecutor's duty, or the non-party's failure to inform the non-party of the fact that the non-party's failure to perform his duty could not be found due to the fact that the non-party's failure to prosecute or the non-party's failure to perform his duty.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jong-young (Presiding Judge) and Lee Jae-man