Whether Article 24-2 of the former Public Service Ethics Act provides for punishment in cases where a person subject to disclosure of information, etc. does not sell or trust in blank his/her own stocks (affirmative), and whether inclusion in the subject of punishment is against the principle of no punishment without the law (affirmative)

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 14-4(1) and Article 24-2 of the former Public Service Ethics Act (Amended by Act No. 9402, Feb. 3, 2009);

Defendant

Prosecutor

Law Firm Sejong, Attorneys Kim Jong-soo et al.

Seoul High Court Decision 2012No2648 Decided September 28, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the original facts charged

Article 14-4(1) of the former Public Service Ethics Act (amended by Act No. 9402 of Feb. 3, 2009; hereinafter the same shall apply) provides that where a person liable for registration fails to disclose information under Article 10(1) and a person prescribed by Presidential Decree among public officials belonging to the Ministry of Strategy and Finance and the Financial Services Commission (hereinafter referred to as “person liable for disclosure”), among persons liable for registration, whose total value of stocks held by him/herself and all interested parties exceeds the amount prescribed by Presidential Decree within the range of at least 10,000, but not exceeding 50,000 won, he/she shall directly sell or trust his/her stocks, or have interested parties sell or trust his/her stocks in blank within one month from the date on which he/she exceeds the amount prescribed by Presidential Decree. Article 24-2 provides that “When a person subject to disclosure fails to sell or trust his/her stocks in violation of the provisions of Article 14-4(1) or 14-6(2) without justifiable cause, he/she shall not be subject to disclosure of the provisions of the disclosure of disclosure of stocks.

In the same purport, the judgment of the court of first instance that acquitted the original facts charged is just, and it did not err by misapprehending the legal principles on Article 24-2 of the former Public Service Ethics Act, as otherwise alleged in the ground of appeal.

2. As to the ground of appeal on the facts charged alternatively added

The lower court maintained the first instance judgment which acquitted the Defendant of the facts charged alternatively on the ground that the concept of “holding” under Article 24-2 of the former Public Service Ethics Act does not extend to the case where it could actually affect voting rights due to personal friendship, such as marital relationship, etc., regardless of contractual relationship, and it cannot be deemed that the shares of this case are shares owned by the Defendant, and the evidence submitted by the public prosecutor alone is not sufficient to recognize that the shares of this case were not owned by the Nonindicted Party, the wife of the Defendant, but actually owned by the Defendant.

In light of the relevant legal principles and records, the above judgment of the court below is just, and it did not err by misapprehending the legal principles on “holding” under Article 24-2 of the former Public Service Ethics Act, or by recognizing facts contrary to logical and empirical rules, or by affecting the conclusion of the judgment.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)