(영문) 대법원 2021.4.1. 선고 2020도15194 판결

1. Chapter III of the Punishment of Minor Offenses Act provides for the disposition of notification (Article 7), payment of penalty (Articles 8 and 8-2), and the disposition of non-compliance with the disposition (Article 9). Any person who receives a disposition of notification from the chief of a police station within 10 days from the date of receipt of the written notification, and any person who fails to pay the penalty within the said period shall pay the penalty plus 20/100 of the notified penalty within 20 days from the date after the last day of the said period (Article 8(1) and (2)). The chief of a police station shall immediately request a summary judgment against the person who fails to pay the penalty within the payment period provided for in Article 8(2) of the Punishment of Minor Offenses Act (Article 9(1)2), the chief of a police station shall request a summary judgment (Article 9(1)2), and even if a summary judgment is requested, if the person submits evidentiary documents after paying the penalty plus 50/100 of the notified penalty before the said judgment is declared, the chief of a police station shall revoke such request (Article 9(3).

Considering the contents of the aforementioned provision and the legislative purport of the notification disposition system, the system of penalties under the Punishment of Minor Offenses Act provides for special cases concerning punishment for those who pay a penalty pursuant to the notification disposition by the chief of a police station prior to the criminal procedure against the offense, and differs from the court’s trial procedure and legal nature (see, e.g., Supreme Court Decision 2012Do6612, Sept. 13, 2012). Furthermore, even if an offender fails to comply with the notification disposition, it is recognized as an exception to the principle of disinfection, thereby promoting the economy of litigation by treating the case in a simple, speedy and timely manner without undergoing the trial procedure through the request for summary judgment by the chief of a police station. In other words, even if the penalty is paid prior to the declaration of a judgment on default, it is given an opportunity to exempt the offender from criminal prosecution and criminal punishment.

Therefore, as long as the chief of a police station made a disposition of notification on an offense, in order to guarantee the procedural status of an offender, the chief of a police station shall not, in principle, file a request for summary judgment until the penalty payment period prescribed by the notification disposition, and the public prosecutor shall not institute a public prosecution against the same offense. In addition, if the offender fails to pay the penalty after the lapse of the period for payment of the penalty, the chief of a police station shall file a request for summary judgment, and the public prosecutor shall not institute a public prosecution against the same offense (see Supreme Court Decisions 2017Do13409, Apr. 29, 2020; 2020Do4738, Jul. 29, 2020).

Furthermore, unless there are special circumstances, the chief of a police station cannot arbitrarily revoke the notification disposition already made for the purpose of criminal prosecution against the offense.

2. The following facts are acknowledged according to the records.

The chief of a police station, on February 23, 2020, issued a notice of notification to the Defendant under Article 3(1)39 of the Punishment of Minor Offenses Act with regard to the crime stated in paragraph (1) of the crime committed by the first instance court at around 05:30 on the same day. However, around 11:00 on the same day, the Defendant committed a crime listed in paragraph (2) of the criminal facts in the judgment of the first instance, and the police officer arrested and investigated the Defendant as a flagrant offender. The police officer in charge became aware of the same kind of criminal records, including the details of the notice in the process of investigation against the Defendant, and on February 24, 2020, the chief of a police station as the addressee of the police station came to know of the same criminal records in the process of investigation against the Defendant, and prepared an investigation report stating that "the Defendant shall be punished for habitual fraud," and the prosecutor tried to transfer the case to the prosecution by habitually applying the above paragraph (1) as a fraud.

3. We examine these facts in light of the above legal principles.

The part on the criminal facts of the first instance judgment concerning the offense for which a notification disposition has already been made is unlawful, and the prosecution against such offense is unlawful.

The police officer in charge prepared an investigation report to the effect that the police officer’s disposition of notification was revoked in order to prosecute the crime described in the above Paragraph (1). However, such circumstance alone is insufficient to deem that the valid disposition of notification was taken. Even if the disposition of revocation was taken, in light of the legal principles as seen earlier, the police officer could not arbitrarily cancel the disposition of notification and institute a prosecution against the same offense.

Therefore, this part of the indictment constitutes a case where the procedure is null and void in violation of the provisions of law. Nevertheless, the court below erred by misapprehending the legal principles on notification disposition, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Of the judgment below, the part on the criminal facts stated in Paragraph (1) of the crime in the judgment of the court of first instance should be reversed. Since the above reversed part and the remaining guilty part are concurrent crimes as provided in the former part of Article 37 of the Criminal Act and a single sentence are imposed, the judgment of the court below

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court 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.