Defendant

Forest trees

Attorney Osung (National Election)

Acquittal of the accused shall be acquitted.

1. Summary of the facts charged

The summary of the facts charged in the instant case is that the Defendant, on October 195, 200, 7 million won on a brobeer, whose name cannot be known at the port of Busan, on the ground of the Korean cargo line, and went to the Japanese Gobea, an area other than the Republic of Korea, and resisted to an area other than the Republic of Korea without valid proof necessary for departure from Korea.

2. The prescription period of public prosecution;

According to Article 3(1) of the Stows Control Act, the statute of limitations for the above crime is three years pursuant to Article 250 of the Criminal Procedure Act, Article 3 of the Addenda to the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007), Article 249(1)5 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007). According to Article 2 subparag. 1 of the Stows Control Act, the term "brut clause" means a clause or warning to any area other than the Republic of Korea without valid proof necessary for departure from the Republic of Korea, since the statutory penalty is a imprisonment for not more than three years or a fine not exceeding three million won. Accordingly, the crime under Article 3(1) of the Stows Control Act is established by making the record of the crime under Article 3(1) of the Stows Control Act to an area other than the Republic of Korea.

3. Whether the statute of limitations has been suspended;

A. Prosecutor's assertion

The prosecutor asserts that the statute of limitations for the charged facts of this case has not expired since the defendant was located abroad in order to escape criminal punishment, and the period of his/her stay in Japan under Article 253(3) of the Criminal Procedure Act (from January 1, 1997 to November 10, 2010, which is the day before the defendant's entry into the Republic of Korea) has been suspended.

(b) Grounds for suspending the statute of limitations;

The legislative intent of Article 253(3) of the Criminal Procedure Act on the suspension of the statute of limitations is to properly realize the penal authority by preventing the statute of limitations from proceeding during the period of stay in a foreign country where the offender stays in a foreign country where the power of the Republic of Korea substantially falls short of the jurisdiction of the Republic of Korea. 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 purposes of staying in a foreign country.

On the other hand, our Criminal Procedure Act has a system of the statute of limitations, and such system has a system of criminal procedure that ensures stability in the legal status of a criminal suspect by waiver of the State's penal authority due to the lapse of a certain period from the substantive reason that the social impact of a crime has been weakened due to the lapse of time, and that the statute of limitations has ceased to exist, resulting in the extinction of the State's penal authority and the extinction of the right to prosecute, thereby allowing the criminal to escape from prosecution and punishment (see Constitutional Court Order 92Hun-Ma284, Sept. 27, 1993). Therefore, it is necessary to interpret the "suspension of the statute of limitations" as an exceptional system.

C. Determination on the instant case

In this case, it is examined whether the defendant's sojourn in Japan after having left the Republic of Korea for the first time on October 1995 and had been included in the purpose of escaping criminal punishment.

Inasmuch as the Defendant appears to have committed any other crime prior to the instant smuggling, the reason why the Defendant left the Republic of Korea through abnormal means is merely the purpose of obtaining income going beyond the Republic of Korea while running as a waterway in Japan. Therefore, it is clear that the Defendant’s departure itself was not the purpose of escaping criminal punishment.

Since then, the Defendant has been staying in Japan for not less than 15 years since he lives as a beneficiary or a chain of a year and has been married with women who have permanent residence in Japan. Also, the reason why the Defendant recently entered Korea is that the government authorities in Japan applied for the issuance of visa by the Defendant to remedy illegal aliens, and the fact that the Defendant was presumed to have been deprived of the past illegal stay, and the issuance of visa was refused.

In full view of the evidence submitted by the prosecutor, the fact that the defendant was aware that he could be punished due to the smuggling is recognized, but the purpose of the defendant's departure was to engage in his occupation as seen above, and the period of his intended stay or his actual stay abroad is very long compared to the statutory penalty or the statute of limitations due to the facts charged in this case, and the defendant's entry into the Republic of Korea in Japan is insufficient to recognize that the purpose of the defendant was included in the criminal punishment due to the smuggling during his residence in Japan.

4. Conclusion

Thus, the facts charged in this case constitute the completion of the statute of limitations, and thus, a judgment of acquittal is rendered pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act.

Judges Kim Dong-chul