[1] The meaning of "when there is a ground to ex officio examine the dismissal of an appeal without submitting the grounds for appeal"

[2] The legislative intent of Article 12-2 (1) of the former Immigration Control Act

[3] The case holding that the act of purchasing and offering admission tickets for the 2002 World Cup to the citizens of the country exempt from entry for illegal employment does not constitute "providing documents, etc. that can be used for entry and departure under Article 12-2 (1) of the former Immigration Control Act"

[4] The case holding that it is difficult to view that an act of purchasing admission tickets for the 2002 World Cup games and offering them to the citizens of the country exempted from entry for illegal employment constitutes an act of offering other conveniences for travel under Article 3 (1) 1 of the Tourism Promotion Act

[1] The reason for ex officio investigation under the proviso of Article 361-4(1) of the Criminal Procedure Act refers to the reason that the court should ex officio investigate even if the parties did not assert any assertion, such as the application of statutes or mistake in statutory interpretation.

[2] Article 12-2(1) of the former Immigration Control Act (amended by Act No. 6745 of Dec. 5, 2002) prohibits an act of providing ships, etc. (referring to ships, aircraft, trains, automobiles, and other means of transportation under Article 2 subparag. 8 of the Act), or passports, seaman’s pockets, visas, visas, boarding tickets, and other documents and articles that can be used for entry into and departure from the Republic of Korea for the purpose of illegally allowing foreigners to enter the Republic of Korea under Article 12-2(1) of the former Immigration Control Act (amended by Act No. 6745 of Dec. 5, 2002), and punish those who violated Article 94 subparag. 2-2 of the Act. The purpose of this is to punish those who provide means of transportation used for smuggling entry, or documents and articles directly used for smuggling entry such as passports, seaman’s

[3] The case holding that the act of purchasing and offering admission tickets for the 2002 World Cup to the citizens of the country exempt from entry for illegal employment does not constitute "providing documents, etc. that can be used for entry and departure under Article 12-2 (1) of the former Immigration Control Act"

[4] The case holding that even if the defendant, without involvement in the travel itself, received commission from foreigners who intend to enter the Republic of Korea to illegally employ, purchased and provided admission tickets for the World Cup, and provided convenience at the time of entry inspection, it is difficult to view that the above act alone constitutes an "other convenience for travel" under Article 3 (1) 1 of the Tourism Promotion Act.

[1] Article 361-4 (1) of the Criminal Procedure Act / [2] Articles 12-2 (1) and 94-2-2 of the former Immigration Control Act (amended by Act No. 6745 of Dec. 5, 2002) / [3] Articles 12-2 (1) and 94-2-2 of the former Immigration Control Act (amended by Act No. 6745 of Dec. 5, 2002) / [4] Articles 3, 4 (1) and 77 subparagraph 1 of the Tourism Promotion Act, Article 2 subparagraph 1 (a) and Article 3 of the Enforcement Decree of the Tourism Promotion Act

[4] Supreme Court Decision 2002Do2995 Delivered on September 24, 2002, Supreme Court Decision 2002Do4085 Delivered on October 11, 2002

Re-appellant

Law Firm Boju General Law Office, Attorney Yu Sung-sung

Suwon District Court Order 2002No2741 dated October 11, 2002

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. Summary of the facts charged and the judgment of the court below

A. The summary of the facts charged in the instant case is as follows: “Re-Appellant (Defendant; hereinafter referred to as the “Defendant”)”, in collusion with Co-Defendant 1, 1, 2, 3, and 4 of the first instance trial, in collusion with the following: “Co-Defendant 1, 2, 3, and 4 of the instant case: (a) a foreigner for tourism purpose who purchased a stadium admission ticket during the period of the Korea-Japan World Cup 2002, by using the fact that entry is easy at the time of entry by the immigration control authorities to enter the country; and (b) allowing him to purchase an admission ticket

(1) No person may provide documents, etc. that may be used for entry into or departure from Korea for the purpose of illegally allowing a foreigner to enter Korea:

On May 23, 2002, around 15:00 (local time) around 15:00, the first instance trial co-defendant received ‘the application for the purchase of the admission ticket to the 2002 FIFA World Cup Korea/Japan' in the name of Nonindicted 5 (English name omitted) and purchased ‘the application for the purchase of the admission ticket to the 2002 FIFA World Cup Korea/Japan', and 745 copies of the admission ticket to the 185th World Cup purchased through the Internet to the above Nonindicted 4, and the above Nonindicted 4 offered the above Nonindicted 5 and other 745 persons, who were want to enter the Republic of Korea for illegal employment, to use for entry into the Republic of Korea;

(2) A person wishing to engage in a travel business is required to register with the competent authorities, without being registered;

On March 27, 2002, from around May 23, 2002 to around May 23, 2002, Non-Indicted 5, etc. of Bangladesh, who intend to enter the Republic of Korea for illegal employment, received US$5,000 to 6,000 per capita, and offered convenience for domestic entry, such as purchase and provision of admission tickets to the World Cup as described in paragraph (1).

B. The lower court dismissed the Defendant’s appeal by its ruling pursuant to Article 361-4(1) of the Criminal Procedure Act, on the ground that even though the Defendant filed an appeal against the judgment of conviction at the first instance court on August 28, 2002, the notice of receipt of the records of trial was served on the Defendant on September 9, 2002, the Defendant did not submit the statement of grounds for appeal within 20 days, and the petition of appeal did not contain any grounds for ex officio examination even after examining the records.

2. Judgment on the grounds of reappeal

A. Even if the appellant fails to submit the statement of grounds for appeal within the submission period, if grounds for ex officio investigation exist, the court of appeals shall not decide the dismissal of the appeal, and if it deems that there exist grounds for appeal in the court of appeal after ex officio deliberation, it shall reverse the judgment of the court below (proviso of Article 361-4(1) of the Criminal Procedure Act). Here, the reason for ex officio investigation refers to the reason for ex officio investigation even in the case where the parties concerned

B. As to the violation of the Immigration Control Act

According to the records, with respect to foreigners for tourism purposes who purchased admission tickets for the Korea-Japan 2002 World Cup, the defendant, using simple entry inspection, arrange for entry into the Republic of Korea by inviting them to illegally employ in the Republic of Korea (at the time of staying in the Republic of Korea for a short-term of three months under the Visa Exemption Convention with our country, the visa shall be exempted at the time of entry), purchase of admission tickets, etc., and collect fees therefor. The defendant conspired with the first instance court, the co-defendant 1, Nonindicted 2, 3, and Nonindicted 4, the first instance court's first instance court, the non-indicted 5 (English name omitted), the first instance court's request for purchase of admission tickets for the Korea-Japan World Cup 202, or the defendant, using the Internet, obtained the above 237 admission tickets, and the above 560 tickets for the above 1st instance court's co-defendant 5th of the above 4th of the 5th of the 5th of the 1st of the 2002.

If a foreigner intends to enter the Republic of Korea, he/she shall undergo an entry inspection by an immigration control official at the entry port (Article 12(1) of the Immigration Control Act), and an immigration control official shall, when conducting an entry inspection, examine whether the passport or seaman’s pocketbook (if necessary, whether the passport or the visa is valid, if the period of sojourn is determined as prescribed by Ordinance of the Ministry of Justice, whether the period of sojourn is subject to prohibition or refusal of entry under Article 11 of the Immigration Control Act, and if the foreigner fails to meet the requirements, he/she may not permit entry (Article 12(3) and (4) of the same Act), and an immigration control official shall also submit the passport and the entry declaration to the foreigner, and if he/she undergoes an entry inspection, and if he/she goes through the above entry inspection, he/she shall also be subject to punishment on the foreigner’s unlawful entry port or entry inspection under the name of the immigration control official, and the foreigner’s lawful provision of an entry ticket and the visa certificate, regardless of the entry permit or the period of sojourn (Article 15(1) through 2).

C. As to the violation of the Tourism Promotion Act (the judgment of the grounds for reappeal on this point is examined ex officio).

Article 3 of the Tourism Promotion Act defines as "business of arranging the use of the relevant facilities, concluding contracts on behalf of the operators of transportation facilities and lodging facilities, and providing other convenience to the travelling." Article 4 (1) of the same Act provides that any person who intends to operate a travel business among the above travel business shall register with the Minister of Culture and Tourism. Article 77 subparagraph 1 of the same Act provides that any person who intends to operate a travel business shall be punished without registration under the above provisions. Article 2 and Article 3 of the Enforcement Decree of the same Act provides that the above travel business shall be punished in cases of general travel business, namely, travel business for domestic or foreign tourists and foreigners (including any act of obtaining passports and visas on behalf of the operators of other transportation facilities and accommodation facilities, etc.). The purpose of the Tourism Promotion Act is to ensure that any person who intends to operate a travel business without permission for entry into the Republic of Korea is not likely to obtain permission for entry into the Republic of Korea or overseas travel business for reasons of the development of tourism conditions and the development of tourism tickets, etc. (Article 1 of the same Act).

D. Thus, since the facts charged in this case do not constitute a crime or there is no proof of the crime, it shall be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act, and the judgment of the court of first instance which convicted otherwise has an error of law that affected the conclusion of the judgment due to erroneous interpretation and application of statutes, which constitutes a ground for ex officio investigation under the proviso of Article 361-4 (1) of the Criminal Procedure Act. Nevertheless, the court below dismissed the defendant's appeal on the ground that there is no ground for ex officio investigation. Thus, there is an error of law by misunderstanding the legal principles as to

3. Therefore, the order 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.

Justices Lee Ji-dam (Presiding Justice)