The case reversing the judgment of the court below which dismissed the prosecution on the ground that the prosecutor's indictment against the defendants belonging to a specific political party cannot be seen as arbitrary exercise of power, among the deaf belonging to the party, who asserted the prohibition of the controversial legislation, such as the amendment bill of the Broadcasting Act and the Korea-U.S. Free Trade Agreement ratification consent bill, and neglected prior to the plenary session of the National Assembly.

In a case where the issue of the so-called “selective public prosecution” is the assistant to the National Assembly member belonging to the Democratic Labor Party, the non-prosecution of the Defendants who were deaf at the front of the plenary session within the National Assembly, arguing the amendment of the Broadcasting Act even after the dissolution of the democratic party, the consent to the ratification of the Korea-U.S. Free Trade Agreement, and refusing to comply with the request of three times or more by the Speaker of the National Assembly, and the prosecutor prosecuted only the Defendants except the assistant to the Democratic Party and the party executives belonging to the above deaf, the case holding that the Criminal Procedure Act adopted the principle of confinement and grants broad discretion to the prosecutor (Article 247), and that it is difficult to readily conclude that the Defendants were not subject to prosecution by reason of the fact that the above Defendants’ act constitutes a requirement for the establishment of the crime, based on the reasons that there is no other person who was not yet prosecuted, arbitrary selection of the police subject to prosecution after the commencement of the investigation, and that there is no further need to view that there is no further possibility of voluntary prosecution after the omission of the Act.

Article 2(1)1 and (2) of the Punishment of Violences, etc. Act; Articles 246, 247, and 327 subparag. 2 of the Criminal Procedure Act; Article 11(1) of the Constitution of the Republic of Korea

Supreme Court Decision 2001Do3026 Decided September 7, 2001 (Gong2001Ha, 2213) Supreme Court Decision 2001Do3106 Decided October 9, 2001 (Gong2001Ha, 2496) Supreme Court Decision 2004Do482 Decided April 27, 2004 (Gong2004Sang, 946) Supreme Court Decision 2006Do1623 Decided December 22, 2006 (Gong2007Sang, 255)

Defendant 1 and 11 others

Prosecutor

Kim Flue Kim et al.

Law Firm Shin, Attorneys Yoon Young-young et al.

Seoul Southern District Court Decision 2009Da1421 decided Nov. 5, 2009

The judgment of the court below is reversed.

The case is remanded to the lower court.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

Considering the fact that the current Criminal Procedure Act adopts the principle of prosecution convenience, the background of the commencement of the investigation in this case, the situation at the time of the deportation, and the result of the handling of the case against the assistant officers of the democratic party who were arrested with the Defendants, even if the prosecutor indicted only the Defendants, who are assistant officers and party employees belonging to the Democratic Labor Party except the assistant officers and party employees belonging to the Democratic Party from among those who were deaf in the future of the plenary session before the plenary session of the National Assembly, it is difficult to view them as the arbitrary exercise of the prosecutor’s right of prosecution, and thus,

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged in this case

The Defendants, as assistants and secretaries of the National Assembly members belonging to the Democratic Labor Party, on January 5, 2009, asserted that the democratic party, who had been fright together in front of the plenary session in the National Assembly room, had been dissolved, and continued to resisting the amendment of the Broadcasting Act, the consent to the ratification of the Korea-U.S. Free Trade Agreement, etc. even after the dissolution, and did not comply with the request from Nonindicted Party 1, the Secretary of the National Assembly, at around 02:30 on the same day, and around 02:45, and from Nonindicted Party 1, at around 03:15, the Defendants did not comply with the request from the President of the National Assembly, which was a structure managed by the National Assembly. Accordingly, the Defendants did not comply with the request from the National Assembly member of the National Assembly.

B. The judgment of the court below

In light of the selected evidence, the court below decided that the Defendants were not prosecuted for the remaining 1st of December 26, 208 and the previous 2nd of the National Assembly members and their assistant officers, and that the Defendants were not prosecuted for the reasons that they were not prosecuted for 1st of December 208, 2000, and that the 1st of December 30th of December 2008 and the 2nd of December 30th of December 2008 were not prosecuted for 1st of December 2000, and that the 2nd of January 3th of January 2009 was not prosecuted for 1st of January 200, and that the 1st of January 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the year 2nd of the month 2nd of the month 3rd election.

3. The judgment of this Court

(a) Basic facts

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, the following facts may be recognized:

(1) Defendants 1 and 2 are assistant officers of Nonindicted 3 of the National Assembly member of the Democratic Labor Party, and Defendants 3, 4, and 5 are assistant officers of Nonindicted 3. Defendant 6 is assistant officers of Nonindicted 4 of the National Assembly member of the same political party, and Defendant 7 is assistant officers of Nonindicted 4. Defendant 8 is assistant officers of Nonindicted 5 of the same National Assembly member of the same political party, Defendant 9, and 10 are assistant officers of Nonindicted 6 of the National Assembly member of the same political party, and Defendant 11 and 12 are assistant officers of Nonindicted 6.

(2) From December 26, 2008, 2008, the National Assembly members of the National Assembly and workers on duty, including assistant officers, occupy a room in front of the plenary session and the president of the National Assembly, and began agricultural nature in order to prevent ex officio administration and treatment of media-related laws, such as the Broadcasting Act, and the Korea-U.S. Free Trade Agreement ratification. From December 17:00 on December 30, 2008, the workers on duty, such as the National Assembly members of the Democratic Labor Party and assistant officers, were in combination with the above agricultural nature.

(3) Around 20:40 on December 30, 2008, the Speaker of the National Assembly (hereinafter referred to as the “National Assembly”) exercised the right to maintain order, stating that “The National Assembly members, full-time employees of the main office, and persons other than the reporters are restricted from entering the National Assembly.” The National Assembly official announced that the right to maintain order in the above content was exercised in the form of a press conference around 21:00 on the same day.

(4) Nevertheless, upon the continuation of the farming nature, the Speaker of the National Assembly instructed the National Assembly, etc. on January 3, 2009, that “the person subject to the restriction on access shall be subject to a high level of response, such as the compulsory dissolution of the said person subject to the restriction on access.” On the same day, the National Assembly official, around 10:30 on the same day, required the side of the Democratic Party and the Democratic Labor Party to remove illegal attachment, such as the banner and the banner of the corridor, and demand the removal of the farming nature by 12:00.

(5) However, the Democratic Party and the Democratic Labor Party did not comply with the above demands. Ultimately, the National Assembly Secretariat’s circumstances around January 3, 2009, around 12:50, and around 17:05, the National Assembly Secretariat attempted to remove attached objects and forced dissolution on two occasions, but they failed to be dissolved at a strong resistance of deafs.

(6) At around 13:50 on January 4, 2009, 80 people, including the National Assembly guards, attempted to dissolve again and failed. At around 14:30 on the same day, the Speaker of the National Assembly again announced the "name of the Speaker for the normalization of the National Assembly" to the effect that "any person who is not a member of the National Assembly during the total period of time who is not a member of the National Assembly, shall be dismissed," and at around 15:30 on the 15:30 day, ordered the National Assembly member of the National Assembly to withdraw his/her deportation. At that time, 20 members of the Democratic Party and the Democratic Labor Party, 20 members of the National Assembly, including the Defendants, and 80 members of the Democratic Labor Party, including the Democratic Labor Party, are deaf.

(7) However, the Speaker of the National Assembly, on January 4, 2009, expressed his/her position to withhold ex officio matters, such as media-related laws, etc. on or around 23:15, and democracy party voluntarily dissolves the agricultural nature in the waterway, but the procedure and time of the dissolution was delegated to the guidance department, and it was de facto dissolved from January 5, 2009 to January 01:00, but the democratic labor party continued to have the agricultural nature.

(8) At around 02:30 on January 5, 2009, the chief of the National Assembly Security Division: (a) around 02:45 on the same day; (b) around 03:15 on the same day; and (c) Nonindicted Party 1 demanded the dissolution and eviction of the staff members, including the Defendants, on three occasions at around 03:15 on the same day; and (d) he did not comply with the request; (b) 40 on the National Assembly’s circumstances under which he was instructed by the Secretary General, 18 on duty, including the Defendants, and Nonindicted Party 2’s assistant members of the Democratic Labor Party, other than the members of the National Assembly, arrested him as flagrant offenders, and forced him to leave the police.

(9) Among 19 persons arrested as above, five workers on the duty of the Democratic Labor Party except for the 12 Defendants (non-indicted 8, 9, 10, 11, and 12) were sentenced to the suspension of indictment on the ground that they were initial offenders. Non-indicted 13 on the Democratic Labor Party was indicted separately from this case and currently under trial (this Court Decision 2009No. 2804), and Non-indicted 7, who is an assistant to the Democratic Party, was sentenced to a non-prosecution disposition. However, the assistant to the Democratic Party and workers on duty who were not arrested at the time, did not have any suspicion. Meanwhile, during the investigation process, the Secretary General expressed that the Defendants do not want to be punished against the Defendants, who are assistant to the National Assembly member or secretary, but the prosecutor prosecuted the Defendants as the crime of non-compliance with the eviction of this case.

B. Determination

(1) According to Articles 246 and 247 of the Criminal Procedure Act, a public prosecutor may institute a public prosecution in cases where it is deemed reasonable to impose criminal sanctions on the elements of a crime, and taking into account the matters under Article 51 of the Criminal Act. However, in cases where the public prosecutor voluntarily exercised his/her authority to institute a public prosecution and gives substantial disadvantages to the defendant, the effect of the public prosecution may be denied by deeming it as abuse of his/her authority to institute a public prosecution in cases where it is deemed that the public prosecutor significantly deviates from his/her authority to institute a public prosecution. Here, the exercise of his/her authority to institute a public prosecution is not sufficient merely by negligence in the course of performing his/her duties, and at least by negligence or at least a certain intention (see Supreme Court Decision 2001Do3026, Sept. 7,

(2) However, in light of the nature of the above crimes and the fact-finding circumstances, where the so-called “selective prosecution” that only some of the Defendants were indicted by selecting a certain number of persons similar to those of the above crimes and the remaining persons were not prosecuted or the prosecution of prosecution is subject to broad discretion by adopting the principle of prosecution (Article 247 of the Criminal Procedure Act), there may be cases where illegality is eliminated or liability is removed depending on the circumstances at the time of the act or the act. Thus, even if the prosecutor’s act falls under the aforementioned element of the crime, it is difficult to view that there is no other person who did not institute a prosecution for the same reason as his/her own even after the act falls under the requirement of the organization of the crime, based on the following circumstances, the prosecutor cannot be viewed as having violated the right to equality by taking account of the following circumstances: (i) there is no reason to view that the prosecutor’s remaining persons who did not obey the request of the National Assembly for voluntary prosecution after the arrest of those persons subject to prosecution, including those who did not have been dismissed by the National Assembly.

(3) Therefore, the judgment of the court below which dismissed the prosecution on the ground that the prosecution procedure of this case constitutes invalid in violation of the provisions of law by abusing the power of prosecution, or by misapprehending the legal principles as to abuse of power of prosecution, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the case is remanded to the court below in accordance with Article 366 of the same Act. It is so decided as per Disposition

Judges Park Jong-dae (Presiding Judge)