[1] The meaning of a case where a person stays abroad for "the purpose of escaping criminal punishment" under Article 253 (3) of the Criminal Procedure Act which provides the grounds for suspending the statute of limitations, the criteria for determining the case and the burden of proof

[2] The case affirming the first instance judgment which acquitted the Defendant on the ground that the statute of limitations has not been suspended due to the lack of recognition that the Defendant had been in Japan for the purpose of escaping criminal punishment in light of all circumstances, in a case where the Defendant was prosecuted for violation of the Stows Control Act on the ground that the Defendant pushed away to Japan without valid proof necessary for departure from the Republic of Korea

[1] Article 253(3) of the Criminal Procedure Act provides, “The statute of limitations shall be suspended during the period of stay in a foreign country for the purpose of escaping criminal punishment.” In order to suspend the statute of limitations, “the purpose of escaping criminal punishment” is not limited to the sole purpose of staying in a foreign country, but includes several purposes of staying in a foreign country. 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”. Unless there exist any objective circumstances clearly expressing the offender’s subjective intent that is incompatible with “the purpose of escaping criminal punishment”, “the purpose of escaping criminal punishment” continues to exist during the period of stay in a foreign country. However, in a case where there is a doubt as to whether there was a “the purpose of escaping criminal punishment” as provided by Article 253(3) of the Criminal Procedure Act, the existence of a “the purpose of escaping criminal punishment” during that period should be determined by considering the existence of a “the purpose of escaping criminal punishment” and the reason why the prosecutor did not return to Korea.

[2] The case affirming the judgment of the court of first instance which affirmed the judgment of acquittal on the ground that the statute of limitations has not been suspended on the grounds that, in case where the defendant's departure from Korea was charged with violation of the Stows Control Act on the ground that the defendant resisted Japan without valid proof necessary for departure, and was charged with violating the Stows Control Act, in light of all circumstances such as the fact that the defendant's departure from Korea was not the purpose of escaping criminal punishment, but the defendant's intended overseas stay period or actual stay period was considerably long compared to the statutory punishment of the crime of violation of the Stows Control Act or the statute of limitations period, and that the defendant re-entered into Korea, etc.

[1] Articles 253(3) and 308 of the Criminal Procedure Act / [2] Articles 2 subparag. 1 and 3(1) of the Stows Control Act, Article 249(1)5 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), Articles 250, 252, 253(3), 326(3), Addenda (amended by Act No. 8730 of Dec. 21, 2007) Article 3 of the former Criminal Procedure Act

[1] Supreme Court Decision 2005Do7527 decided Dec. 9, 2005 (Gong2006Sang, 152) Supreme Court Decision 2008Do4101 decided Dec. 11, 2008 (Gong2009Sang, 56)

Defendant

Prosecutor

Seoul Southern District Court Decision 2011No566 decided June 17, 2011

The appeal is dismissed.

The grounds of appeal are examined.

Article 253(3) of the Criminal Procedure Act provides that "the statute of limitations shall be suspended during the period when the offender stays abroad in order to escape criminal punishment." In order to suspend the statute of limitations, Article 253(3) of the Criminal Procedure Act requires "the purpose of escaping criminal punishment."

Article 253(3) of the Criminal Procedure Act provides that “the purpose of escaping criminal punishment” is not limited to the sole purpose of staying in a foreign country, and it is sufficient to view that the criminal was included for several purposes of staying in a foreign country. If the criminal’s staying in a foreign country was a tool to escape criminal punishment, “the purpose of escaping criminal punishment” is to maintain “the purpose of escaping criminal punishment” during the period of staying in a foreign country unless there exist any objective circumstances that clearly express the criminal’s subjective intent inconsistent with “the purpose of escaping criminal punishment.” However, in a case where a doubtful circumstance exists where the criminal staying in a foreign country where “the purpose of escaping criminal punishment” under Article 253(3) of the Criminal Procedure Act exists, the issue of whether there exists “the purpose of escaping criminal punishment” during that period is sufficient to deem that the criminal does not have an intent to escape compared with the period of stay in the foreign country, the continuous period of stay in the foreign country, whether the criminal defendant had an intention to escape criminal punishment or whether the criminal defendant had to return home, and whether the defendant had been informed or not.

According to the reasoning of the judgment below, the court below rejected the prosecutor's assertion that the statute of limitations has been suspended for the reason that it is not sufficient to recognize that the defendant had been in Japan for the purpose of escaping criminal punishment against the crime stated in the facts charged of this case, such as the defendant's departure itself, not for escape of criminal punishment, and the defendant's departure from Korea, and both the period of overseas stay or the period of actual stay in Korea, which the defendant's intent was intended, was considerably long compared to the statutory penalty or the statute of limitations for the crime of this case, and the defendant re-entry into Korea. The court below affirmed the judgment of the first instance which acquitted the defendant on the ground that the statute of limitations expired at the time of the prosecution of this case.

Examining the records in light of the aforementioned legal provisions and legal principles, the above measures by the court below are just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the suspension of prescription.

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

Justices Kim Yong-deok (Presiding Justice)