Matters to be considered in interpreting the “official crime” under Article 253(2) of the Criminal Procedure Act / Whether the general provisions on accomplices in the general provisions of the Criminal Act apply to each other’s crime (negative) / Whether the “official crime” under Article 253(2) of the Criminal Procedure Act includes a person who has a relation with the crime of bribery and the crime of acceptance of bribe (negative)

As stipulated in Articles 248(1) and 253(1) and (2) of the Criminal Procedure Act, the Criminal Procedure Act provides that the statute of limitations shall be suspended for one of the accomplices to file a public prosecution against the other accomplices in order to ensure equity in punishment among the accomplices. However, the concept and type of the accomplices do not have any provision regarding the concept and type of the above accomplices. Therefore, in interpreting an accomplice under Article 253(2) of the Criminal Procedure Act, the legislative purport of the above provision, namely, equity in punishment among the accomplices, the basic ideology of the Criminal Procedure Act, including the adequate realization of the State’s penal authority, the systematic harmony with the substantive law, including the Criminal Act, which provides for the exercise of the State’s penal authority, should be comprehensively taken into account. In particular, since the above provision provides an exception to expanding the human scope of the effect of the prosecution, it shall be strictly interpreted in principle, and it shall not be expanded to the

A person who has a so-called inter-party relationship, such as the crime of offering of a bribe and the crime of acceptance of bribe, is called a necessary accomplice in science. However, the existence of each party's act is required, and the elements of each party are realized and punished in accordance with separate penal provisions. As such, it is essentially different from those of the accomplice relationship, which realizes the joint elements of a crime by more than two persons, and the provisions of accomplice in the general provisions of the Criminal Act concerning each other's crime are not applicable among persons in a pro-party relationship.

In light of the above, the "official crime" referred to in Article 253 (2) of the Criminal Procedure Act does not include a person who has a relation to a crime such as the crime of offering of a bribe and the crime of acceptance of bribe.

Articles 30, 31, 32, 129, and 133 of the Criminal Act; Articles 248(1) and 253(1) and (2) of the Criminal Procedure Act

Supreme Court Decision 2011Do15137 Decided March 29, 2012 (Gong2014Sang, 425) Supreme Court Decision 2013Do6969 Decided January 16, 2014

Defendant

Prosecutor

Seoul High Court Decision 2011No2616 decided April 13, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 248(1) of the Criminal Procedure Act provides that “The public prosecution shall not have effect on any person other than the person designated as the defendant by the public prosecutor,” and Article 253(1) provides that “The limitation period shall cease to toll on the institution of the public prosecution and run from the time when the judgment dismissing the public prosecution or the judgment dismissing the jurisdiction becomes final and conclusive,” and Article 248(2) provides that “The suspension of prescription under the preceding paragraph against one of the co-offenders shall cease to have effect on the other co-offenders and run from the time the judgment in the case becomes final and conclusive.

As can be seen, the Criminal Procedure Act provides that the statute of limitations shall be suspended for one of the co-offenders at the institution of a public prosecution against the other co-offenders in order to ensure equity in punishment among the co-offenders. Therefore, in interpreting Article 253(2) of the Criminal Procedure Act, the legislative intent of the above provision, which is equity in punishment among the co-offenders, the basic ideology of the Criminal Procedure Act, which is adequate realization of the State’s penal authority, and the systematic harmony with the substantive law, including the Criminal Act, which provides for the subject of the exercise of the State’s penal authority, should be comprehensively taken into account. In particular, since the above provision provides an exception to expanding the scope of the human resources of the prosecution, it shall be strictly interpreted, and it shall not be interpreted in a direction unfavorable to the defendant (see Supreme Court Decision 2011Do15137, Mar. 29, 2012).

A person who has a so-called inter-party relationship, such as the crime of offering of a bribe and the crime of acceptance of bribe, is called a necessary accomplice in science. However, the existence of a mutual-party act is required, and is punished in accordance with separate penal provisions. As such, it is in essence different from a person who is an accomplice relationship with two or more persons processing and realizing joint elements of a crime, and the provision of an accomplice in the general provisions of the Criminal Act concerning each other’s crime is not applicable among persons in a pro-party relationship (see Supreme Court Decision 2013Do6969, Jan. 16, 2014).

In light of the above, the "official crime" referred to in Article 253 (2) of the Criminal Procedure Act is interpreted not to include a person who has a relation with the crime of bribery and the crime of acceptance of bribe.

2. According to the reasoning of the lower judgment and the record, on June 29, 201, the prosecutor brought a public prosecution against the Defendant on the following grounds: “In collusion with Nonindicted 1 and Nonindicted 2 on February 3, 2005, the Defendant sent KRW 60 million to Nonindicted 3 in charge of the public official in charge of the land allotted by the recompense for the recompense of development outlay in order for the Defendant to purchase the land in recompense for development outlay, and delivered KRW 30 million to Nonindicted 2 and Nonindicted 3; on the other hand, as for Nonindicted 1 and Nonindicted 2 and Nonindicted 3 on January 10, 206, the public prosecutor was prosecuted for a third party bribe delivery, a third party bribe acquisition, a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), and on April 20, 2007, the Seoul High Court sentenced Nonindicted 1 to imprisonment for one year and six months, and the imprisonment for Nonindicted 2 and three years, and the judgment of the Defendant was dismissed on July 27, 2007.

According to these factual relations, the instant prosecution was instituted at 147 days from the completion of the Defendant’s crime, and even if 1 year and 107 days, which were the period of the statute of limitations, calculated based on the date on which the Defendant and his accomplice Nonindicted 1 was found guilty, were excluded, 5 years have passed since the statute of limitations for the instant crime was expired.

3. Therefore, the judgment of the court below that the prosecution against the defendant was instituted five years after the expiration of the statute of limitations due to the prosecution against the non-indicted 1, who is the accomplice, is just in accordance with the above legal principles, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the accomplice under Article 253 (2) of the Criminal Procedure Act.

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

Justices Ko Young-han (Presiding Justice)