[1] Whether it is allowed to apply mutatis mutandis the extension of the scope of punishment by limiting the scope of grounds for the dismissal of illegality and responsibility, the grounds for the exclusion of liability, the conditions of prosecution, etc. (negative)

[2] Whether Article 233 of the Criminal Procedure Act, which provides for the principle of no filing of a complaint, can be applied by analogy to the "Accusation" of the Fair Trade Commission, which is stipulated as a condition of prosecution under Article 71 (1) of the Monopoly Regulation and Fair Trade Act (negative)

[3] The case affirming the court below's decision that dismissed Defendants who were excluded from the scope of accusation by the Fair Trade Commission due to lack of the requirements for indictment

[1] In a case where the interpretation of a penal provision deviates from the possible meaning of the legal provision, it is an analogical interpretation that goes against the principle of no punishment without the law, and such prohibition of analogical interpretation is applied mutatis mutandis to the elements of all penal provisions and the punishment. If the scope of the grounds for the exclusion of punishment, which is the grounds for the exclusion of illegality and responsibility or the grounds for the exclusion of punishment, is limitedly applied, the scope of punishment for the offender is expanded and disadvantageous to the offender. This result in the same effect as the analogical application of the elements of the crime beyond the possible meaning of the text, and therefore, it is not permissible in violation of the principle of no analogical interpretation, which

[2] Article 71(1) of the Monopoly Regulation and Fair Trade Act provides for the condition of prosecution by stipulating that “a person who has committed an unfair collaborative act under Article 66(1)9 may institute a public prosecution only upon a complaint by the Fair Trade Commission.” On the other hand, the above Act does not explicitly stipulate the effect of a complaint in a case where the Fair Trade Commission only files a complaint against a part of the violator of the same Act, i.e., whether such a complaint affects the remainder of the violator, i., whether the subjective indivisible principle of a complaint is applied, and Article 233 of the Criminal Procedure Act does not provide for the subjective indivisible principle of a complaint against an offense subject to victim’s complaint, but does not provide for the subjective indivisible principle of a complaint against the complaint, and Article 233 of the Criminal Procedure Act does not apply mutatis mutandis to the above. In addition, the above provision does not provide for the grounds for prosecution, given the nature of the requirements for prosecution, the subject and institutional purport of a complaint against a victim subject of victim’s complaint. However, Article 233 of the Fair Trade Commission, which provides subjective principle of a criminal punishment.

[3] The case affirming the court below's decision that dismissed the prosecution on the grounds that the indictment against the Defendants excluded from the scope of accusation by the Fair Trade Commission constitutes a case where the indictment is null and void in violation of the provisions of the law due to lack of the requirements for indictment

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act / [2] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Articles 66(1)9 and 71(1) of the Monopoly Regulation and Fair Trade Act, Article 233 of the Criminal Procedure Act / [3] Article 19(1)1 and 3, Article 66(1)9, and Article 71(1) of the Monopoly Regulation and Fair Trade Act, Article 233 of the Criminal Procedure Act

[1] Supreme Court en banc Order 94Mo32 delivered on December 20, 1994 (Gong1995Sang, 538), Supreme Court en banc Decision 96Do1167 delivered on March 20, 1997 (Gong1997Sang, 1039), Supreme Court Decision 98Do1719 delivered on July 9, 199 (Gong199Ha, 1699Ha, 169)

Honam Petroleum Chemical Co., Ltd. and three others

Prosecutor

Attorneys A and seven others

Seoul Central District Court Decision 2008No734 Decided May 16, 2008

All appeals are dismissed.

The grounds of appeal are examined.

In the interpretation of a penal provision, if it exceeds the possible meaning of the legal provision, it shall be an analogical interpretation that violates the principle of no punishment without the law, and such principle of no punishment without the law shall apply mutatis mutandis to the elements of all penal provisions and the penal provisions. If the scope of a punishment is limited to the grounds for the dismissal of illegality and responsibility or the grounds for exemption from punishment, which are the grounds for the exclusion of punishment, the scope of punishment for the offender shall be expanded and disadvantageous to the offender. This result in the same effect as the analogical application of the elements of the crime beyond the possible meaning of the text. Therefore, it shall not be permitted in violation of the principle of no interpretation without the law, which is the derived principle of no punishment without the law (see Supreme Court en banc Decision 96Do1167 delivered on March

Article 71(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “the Act”) provides for the condition of prosecution by stipulating that “a person who has committed an unfair collaborative act under Article 66(1)9 of the Act may institute a public prosecution only when the Fair Trade Commission files a complaint against a part of the violators.” On the other hand, the Act does not explicitly stipulate whether the effect of the accusation is effective against the other violator of the Act in the case where the Fair Trade Commission files a complaint only against a part of the violator of the Act, namely, whether the subjective indivisible principle of the accusation is applied to the other violator of the Act. The Criminal Procedure Act does not provide for the subjective indivisible principle of the complaint against a crime subject to victim’s complaint under Article 233 of the Act, but does not provide for the subjective indivisible principle of the complaint against a crime subject to victim’s complaint

In addition, Article 233 of the Criminal Procedure Act, which provides the subjective indivisible principle of complaints concerning complaints subject to victim's complaint, is interpreted to apply mutatis mutandis to the accusation by the Fair Trade Commission, even though there is no express provision on the grounds of the nature of the requirements for prosecution, as well as the common point of view of the nature of the requirements for prosecution, and the subject of the complaint and the institutional purport of the complaint are different, it extends the scope of criminal punishment to the offender who does not have any accusation by the Fair Trade Commission. In conclusion, since it constitutes

As alleged in the ground of appeal, even though there is a possibility that the Fair Trade Commission's exercise of the right to file a complaint may be arbitrarily achieved, and even if it cannot be denied the possibility that the degree of participation may lead to an excessive problem with those who have been exempted from the criminal charge due to the exemption of those who have filed a criminal charge as to the relationship with those who have filed a voluntary report or who have been an investigator, the foregoing principle of criminal justice should be respected, which is the major principle of criminal law, and the discretionary power on the legislative formation of legislators. In addition, in light of the circumstances such as the fact that the Act explicitly provides for the Prosecutor General's right to request an accusation against the Fair Trade Commission (Article 71(3)), it is difficult to view

In the same purport, the court below was just in maintaining the first instance court which sentenced the dismissal of prosecution on the ground that the indictment against the Defendants excluded from the scope of accusation by the Fair Trade Commission constitutes a case where the indictment is null and void due to the lack of legal requirements for indictment, and there is no error of law by misunderstanding the legal principles as to the subjective indivisible principle of accusation, contrary to what is alleged in the grounds of appeal, which affected the conclusion of the judgment. The Supreme Court decision that points out in the grounds of appeal

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

Justices Shin Young-chul (Presiding Justice)