[1] The purport of the latter part of Article 262(4) of the Criminal Procedure Act that the prosecution shall not be initiated unless other important evidence is found for a case for which a decision to dismiss an application for adjudication has become final and conclusive

[2] In the latter part of Article 262 (4) of the Criminal Procedure Act, whether the "case for which a ruling under paragraph (2) 1 becomes final and conclusive" refers only to the case subject to a ruling of dismissal of an application for a ruling by the court since the court was conducted a hearing and judgment in reality (affirmative), and whether the case not subject to a ruling of dismissal of an application for a ruling by the court is not "the case for which a ruling under paragraph (2) 1 becomes final and conclusive" even if the case

[1] The latter part of Article 262(4) of the Criminal Procedure Act provides that a prosecutor may not prosecute a case for which a decision to dismiss an application for adjudication has become final and conclusive unless other important evidence has been found. Meanwhile, the court's decision to dismiss an application for adjudication has taken into account the following factors: (a) the public prosecutor's indictment of a case for which a decision to dismiss an application for adjudication has become final and conclusive may result in waste of judicial personnel and budget for the case in which the suspect would be excessively unstable for a long time if the public prosecutor's request for prosecution was allowed without restriction despite the court's decision to dismiss the application for adjudication has become final and conclusive; and (b) on the other hand, the court's decision on a case for which an application for adjudication has been filed has not been recognized as effective against res judicata; and (c) the whole prohibition of a public prosecutor entirely prohibits

[2] In light of the legislative intent of Article 262(2) and (4) of the Criminal Procedure Act and Article 262(4) of the latter part of the Criminal Procedure Act, the term “case for which a ruling under Article 262(2)1 becomes final and conclusive” under the latter part of Article 262(4) of the Criminal Procedure Act refers only to the case subject to a ruling to dismiss an application for a ruling by the court having jurisdiction over the case of application for a ruling has been practically deliberated and judged

Therefore, the case that is not subject to a decision to dismiss an application for adjudication cannot be deemed to be “case where a decision under Article 262(4) of the Criminal Procedure Act becomes final and conclusive” as stated in the latter part of Article 262(4) of the Criminal Procedure Act, and even if the case that is not subject to a decision to dismiss an application for adjudication was included in the contents

[1] Article 262(2)1 and (4) of the Criminal Procedure Act / [2] Article 262(2) and (4) of the Criminal Procedure Act

Defendant

Defendant

Eastern Law Firm, Attorney Kim Jong-ju

Changwon District Court Decision 201No1342, 2012No1134 decided November 8, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of the legal principles as to the scope of restriction on re-performance

Article 262(2) of the Criminal Procedure Act provides that "the court shall make a decision in accordance with the procedures for an appeal in accordance with the following classification within three months from the date on which it has received the application for adjudication. In such cases, the court may investigate evidence if necessary; 1. When the application violates a legal method or is groundless, the application shall be dismissed; 2. When the application is well-grounded, a decision to institute a public prosecution shall be made on the case shall be made; and Article 262(4) of the Criminal Procedure Act provides that "No appeal shall be made against the ruling in accordance with paragraph (2) shall be made unless other important evidence is discovered for the case for which the ruling in accordance with

As such, the latter part of Article 262(4) of the Criminal Procedure Act provides that prosecution may not be initiated except where other important evidence is found for a case for which a decision to dismiss an application for adjudication has become final and conclusive. On the other hand, the court’s decision to dismiss an application for adjudication has taken into account the following factors: (a) the public prosecutor’s indictment of a case for which a decision to dismiss an application for adjudication has become final and conclusive may result in waste of judicial personnel and budget in cases where the defendant would be in an overly unstable state if he/she would be allowed without restriction of prosecution by a public prosecutor despite the fact that a decision to dismiss an application for adjudication has become final and conclusive; and (b) on the other hand, the court’s decision on a case for which an application for adjudication has been filed has no effect of res judicata; and (c) the whole prohibition of prosecution exclusively by the

In light of the above provisions and legislative purport of the Criminal Procedure Act, it is reasonable to interpret that “cases where a ruling under Article 262(4)1 becomes final and conclusive” refers only to cases subject to a ruling to dismiss an application for adjudication by the court having jurisdiction over the case of application for adjudication by considering the possibility and necessity of institution of public prosecution by the court.

Therefore, the case that is not subject to a decision to dismiss an application for adjudication cannot be deemed to be “case where a decision under Article 262(4) of the Criminal Procedure Act becomes final and conclusive” as stated in the latter part of Article 262(4) of the Criminal Procedure Act. Even if the case that is not subject to a decision to dismiss an application for adjudication was included in the contents of the

The lower court rejected the Defendant’s assertion that “this part of the public prosecution instituted without other important evidence is unlawful, even though the decision to dismiss the Nonindicted Party’s petition for adjudication regarding each of the above criminal facts became final and conclusive,” on the grounds that the facts alleged to be prosecuted by the Changwon District Court Decision 2010 type 6745, June 10, 201, which was the object of the review and determination of the decision to dismiss the petition for adjudication of this case, are not included in the same facts as indicated in the sight table (1)-1 or 23 in the judgment of the Changwon District Court Decision 201Dadan2541, supra.”

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the scope of prohibition of prosecution as stipulated in Article 262(4) of the Criminal Procedure Act, thereby failing

2. As to the assertion of misapprehension of the legal principles as to the intent to illegally obtain embezzlement

Examining the evidence duly adopted and examined by the lower court and the first instance court, it is justifiable for the lower court to have convicted the Defendants of the charges Nos. 5 through 12, and Nos. 3 through 28, as indicated in the holding of the Changwon District Court Decision 2010Da3078, and the List No. 2011Gadan2541, on the grounds as indicated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules, or by misapprehending the legal doctrine on the intent of unlawful acquisition in embezzlement.

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 Lee Sang-hoon (Presiding Justice)