2019Do14668 A. Fraud

(b) Intimidation;

A

Defendant

Attorney Kim Jong-ju (Korean National Assembly)

1. B

2. AH;

Seoul Eastern District Court Decision 2019No449 decided September 20, 2019, and 2019 early 2019

469 Application for remedy order

December 12, 2019

The part of the court below's order for compensation against AH among the judgment below is reversed, and the application for compensation order filed by AH, an applicant for compensation, shall be dismissed.

The remaining appeals are dismissed.

The grounds of appeal are examined.

1. The argument that the lower court’s judgment’s decision on the Defendant case contains an error of unfair sentencing constitutes an assertion of unfair sentencing. However, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal based on unfair sentencing is allowed only on a case on which death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed. In the instant case where a more minor sentence has been imposed on the Defendant, the argument

2. Regarding 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 (hereinafter referred to as the “Litigation Promotion Act”) is a system in which the amount of damage is specified for direct property damage suffered by a victim of a criminal act of a defendant, and the compensation order is given to the defendant only when the scope of compensation liability of the defendant is evident. According to Article 25(3)3 of the above Act, the compensation order shall not be issued when the existence or scope of compensation of the defendant is unclear, and in such cases, the application for compensation order shall be dismissed pursuant to Article 32(1) of the same Act (see, e.g., Supreme Court Decision 2017Do4088, May 11, 2017).

According to the records, on July 18, 2019, AH, an applicant for compensation, submitted a written agreement to the effect that "victim AH received an agreement from the defendant, does not want to be punished, and does not file any civil or criminal lawsuit against the defendant in relation to the instant case" at the court below on July 18, 2019. However, the court below ordered the Defendant to pay KRW 420,000 to AH, an applicant for compensation.

Therefore, the judgment of the court below ordering AH to compensate for damages since the existence and scope of the Defendant’s liability to compensate for damages against AH is unclear, and thus, it erred by misapprehending the legal principles on the compensation order. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, among the judgment of the court below, the part of the compensation order against AH, which is an application for compensation, is reversed, and this court is sufficient to render its judgment. Thus, pursuant to Article 33(4) of the Litigation Promotion Act, the compensation order against AH, which is an application for compensation among the judgment below, shall be revoked and dismissed, and the remaining appeals shall be dismissed. It is so decided as per

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok