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(영문) 헌재 2000. 11. 30. 선고 2000헌마543 결정문 [불기소처분취소]
[결정문] [전원재판부]

200Hun-Ma543 Revocation of a non-prosecution disposition


New ○ Monob

Attorney Han-chul et al.


Prosecutor of the Youngcheon District Prosecutors' Office;


Of the instant appeal, the part concerning the Ma○, the Defendant, shall be dismissed, and the part concerning the Defendant Kim○, the Defendant, shall be dismissed.


1. Case summary

According to the records and evidence of this case (the records of the non-prosecution case No. 2025 of 199), the following facts can be acknowledged.

A. On April 22, 1999, the claimant filed a complaint on the charge of fabrication and uttering of private documents, attempted fraud, and the same ○○○ Food and Drug Industry Violation of the Framework Act on the Construction Industry. The gist of the complaint is as follows.

(1) The defendant Kim ○-he, the defendant, is the defendant

(A) On April 1998, a copy of the contract for construction works in the name of the claimant, the client, the contract amount of which is KRW 1,365,469,00, by using a computer for the purpose of exercising a patrol officer; and

(B) around the 8th day of the same month, Chuncheon District Court's Young-gu Branch's Young-gu Branch's Young-gu Branch's office will submit and exercise the above forged construction contract document as evidentiary documents by the Director of the Claim for Construction Costs

(C) on the same day, the applicant filed a complaint seeking payment of KRW 180,000,000, which had already been paid by the claimant in the Chuncheon regional support, and attempted to obtain money from the claimant, but that money was attempted to obtain money from the claimant;

(2) Around November 1996, as the representative director of ○○○ Co., Ltd., the Defendant-Appellant lent the construction business license of ○○○○ Co., Ltd. to the Defendant Kim Jong-he.

B. On July 31, 1999, the respondent received the above accusation case (Yancheon District Public Prosecutor's Office, Youngcheon District Public Prosecutor's Office, 199, 2025) and investigated the case, and subsequently rendered a non-prosecution disposition (hereinafter "the instant disposition") to the suspect who is not guilty of the charges. On July 31, 1999, the respondent appealed against the above non-prosecution disposition and filed an appeal (Seoul High Public Prosecutor's Office 99 non-paragraph 6260) and re-appeal (Seoul High Public Prosecutor's Office 200 non-subparagraph 1618) as prescribed by the Public Prosecutor's Office Act.

C. On August 18, 200, the claimant asserted that the disposition of this case infringed the claimant's right to equality, right to state his opinion, etc., and sought an adjudication on constitutional complaint of this case on August 18, 200.2.

A. The part concerning the Defendant’s friendly materials

With respect to a constitutional complaint filed by a criminal victim against a non-prosecution disposition by the prosecutor, when the statute of limitations for the crime against which a non-prosecution disposition is rendered expires, the constitutional complaint is established by the Korean Court to regard it as unlawful because there is no benefit in the protection of rights (see Constitutional Court Decision 94HunMa246, Jan. 20, 1995; Supreme Court Decision 7-1, 15, 41).

However, according to Article 60 subparagraph 4 and Article 16-2 of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 1996) and Article 249 (1) subparagraph 5 of the Criminal Procedure Act, the statute of limitations is three years.

If so, it is obvious that the license for the construction business loan of Postal materials, which is the defendant, among the facts of the complaint of this case, has expired on November 30, 1999 and the statute of limitations has expired, the claim for adjudication on constitutional complaint on this portion is unlawful as there is no benefit of protection of rights.

B. The part concerning the defendant Kim Jong-heon

In examining the records in detail, it is not found that the respondent has committed an investigation against the justice and equity of the appellant with respect to this part of the complaint case, or that there was a serious error affecting the decision of the non-prosecution disposition in interpreting the Constitution, applying laws or determining evidence, and there is no data to regard this part of the complaint by the respondent as an arbitrary disposition to the extent that the Constitutional Court is involved. Therefore, it cannot be deemed that the basic right of the appellant was infringed.

3. Conclusion

Therefore, the part concerning Ma○, a defendant, among the plaintiff's appeal of this case, is unlawful and dismissed. The part concerning Ma○, a defendant, is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

November 30, 2000


Justices Yoon Young-young of the presiding Justice

Justices Lee Young-soo

Justices Han Han-tae

Justices Ha Young-chul

Justices Kim Young-il

Jurisdiction of the State Judgment Officer

Justices Kim Yong-soo

Justices Kim Jong-il

Justices Song Jin-in-Law