[1] The purpose of the "compensation order" system under Article 25 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and the measures to be taken by the court in a case where the existence or scope of the defendant'

[2] In a case where the first instance judgment as to an application for compensation by an applicant for compensation ordered the applicant for compensation to pay the amount by deceit to the defendant, but the applicant for compensation submitted a written agreement to the effect that "it is promising not to raise any civil or criminal objection in the future as the damage was recovered from the defendant and the damage was smoothly agreed upon by the defendant," the case dismissing the application for compensation by the applicant for compensation on the ground that this constitutes a case where the existence and scope of the defendant's liability for compensation against the applicant for compensation is not clear, and thus it constitutes a case where it is impossible to issue a compensation order, the case holding that the court below revoked the part of the first

[1] Articles 25(1), 25(3)3, and 32(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings / [2] Articles 25(1) and (3)3, 32(1), and 33(4) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings

[1] Supreme Court Decision 2012Do7144 Decided August 30, 2012

Defendant

Defendant

Attorney Shin Young-chul

Busan District Court Decision 2016No4072 Decided February 15, 2017

The part of the judgment of the court below regarding the compensation order shall be reversed, the compensation order of the court of first instance shall be revoked, and the application for compensation order of the applicant for compensation shall be dismissed. The remaining appeals shall

The grounds of appeal are examined.

1. Determination on the defendant's case

The argument that the lower court erred by failing to exhaust all deliberation on sentencing against the Defendant constitutes an allegation of unfair sentencing. According to Article 383 Subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. As such, in this case where the Defendant was sentenced to more minor punishment, the allegation

2. Determination on the part of the compensation order

The compensation order pursuant to Article 25 (1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings is a system in which the amount of direct property damage suffered by a victim of a criminal act is specified in the amount of damage, and the amount of compensation is ordered to the defendant only when the scope of the defendant's liability is clear. According to Article 25 (3) 3 of the above Act, if the existence or scope of the defendant's liability is unclear, the compensation order shall not be issued, and in such cases, the application for compensation order shall be dismissed pursuant to Article 32 (1) of the same Act (see Supreme Court Decision 201Do7144, Aug. 30, 2012, etc.).

According to the records, the judgment of the court of first instance on the application for compensation order by the applicant for compensation maintained by the court below is the fact that the court below ordered the applicant for compensation to pay the amount of KRW 15 million by deceitation to the defendant, and the applicant for compensation submitted a written agreement to the effect that "The applicant for compensation agreed to recover the damage from the defendant and smoothly agree to do not raise any civil and criminal objection in the future since he/she agreed to do so."

Thus, the judgment of the court below which maintained the part of the compensation order in the judgment of the court of first instance is erroneous in the misapprehension of legal principles as to the compensation order, since the existence and scope of the defendant's liability for compensation against the applicant for compensation is not clear. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the compensation order shall be reversed, and since it is sufficient for this court to see it, it shall revoke the compensation order of the court of first instance and dismiss the application for compensation order of the applicant for compensation pursuant to Article 33(4) of the Act on Special Cases concerning Promotion, etc. of Legal Proceedings. The remaining appeals are dismissed. It is so decided as per Disposition by

Justices Kim Shin (Presiding Justice)