Whether the provisions of the Criminal Act concerning relative funeral cases apply to the crime of violating Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (affirmative)

Articles 328, 355(1), and 361 of the Criminal Act; Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Supreme Court Decision 99O1 Decided October 13, 2000 (Gong2000Ha, 2363) Supreme Court Decision 2009Do12627 Decided February 11, 2010 (Gong2010Sang, 604)

Defendant

Defendant

Attorney Lee So-young

Gwangju High Court Decision 2012No512 decided June 13, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

According to Articles 361 and 328 of the Criminal Act, the crime of embezzlement between lineal blood relatives, spouse, relatives living together, family members living together, or their spouse shall be exempted, and the prosecution may be instituted only when there is a complaint among other relatives. The nature of embezzlement under the Criminal Act is maintained even in cases where a aggravated punishment is made pursuant to Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Special Economic Crimes Act”), and there is no express provision that the application of Articles 361 and 328 of the Criminal Act on the Aggravated Punishment, etc. of Relatives is excluded from the application of the Special Economic Crimes Act. Thus, Article 361 of the Criminal Act also applies to a crime of violation of Article 3(1) of the Special Economic Crimes Act.

Even according to the facts charged in this case, since the victim is a victim's external relationship with the defendant, the crime of violation of the Act on the Special Cases of this case by embezzlement can be prosecuted only when a complaint is filed in light of the above legal principles. Since the period of accusation is six months from the date on which the victim becomes aware of the criminal under Article 230 (1) of the Criminal Procedure Act, the subsequent complaint is not unlawful and invalid. Therefore, the court below should examine whether the victim's complaint in this case was filed within six months from the date on which the victim became aware of the criminal, prior to making a judgment of guilt or innocence, and then, should determine whether the period was excessive, then dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act.

Nevertheless, the court below affirmed the judgment of the court of first instance which pronounced guilty of the facts charged in this case without following the above measures. In such a case, the court below erred by misapprehending the legal principles on the application of relative precedent in the violation of the Act on Special Cases Concerning the Violation of the Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)