[1] Requirements for the prosecutor's judgment as to prosecution to be unlawful

[2] The case holding that the prosecutor's non-prosecution disposition is not a wrong disposition to the extent that it is substantially impossible to affirm the rationality of the judgment in light of the empirical and logical rules

[3] Whether there is a proximate causal relationship between the mental suffering of the crime victim and the non-prosecution of the prosecutor (negative)

[1] In a case where a public prosecution is instituted, considering the fact that various opinions can be divided according to the person who executes it, rather than a flexible and absolute interpretation, and the limitation of human ability, the determination is not limited to a case where it is deemed to have been an obvious emergency judgment from among the general public who have a sound common sense in order to be illegal. In other words, in light of the empirical and logical rules, the determination on the prosecution of a public prosecutor is unlawful only when there is an obvious defect.

[2] The case holding that the prosecutor's non-prosecution disposition is not a wrong disposition to the extent that it is substantially impossible to affirm the rationality of the judgment in light of the empirical and logical rules

[3] A prosecutor's proper investigation and prosecution are related to the recovery of victims' property and mental damage as a result of the exercise of the prosecutor's right to prosecute, and it cannot be denied that citizens have a strong expectation. However, the purpose of the prosecutor's right and prosecution is to realize the public interest of the State and society, such as the maintenance of order, in essence, not to protect the victims' personal interests or to compensate for damages suffered by the victims. Thus, even if the perpetrator's criminal punishment was not satisfied due to a non-prosecution disposition by the prosecutor, and the victim's appeal for mental suffering is not an incidental and reflect outcome accompanying the exercise of the prosecutor's right to prosecute. Accordingly, the victim's mental suffering is not a proximate causal relation with the non-prosecution disposition by the prosecutor.

[1] Article 2 (1) of the State Compensation Act / [2] Article 2 (1) of the State Compensation Act / [3] Article 2 (1) of the State Compensation Act

[1] Supreme Court Decision 99Da17302 delivered on June 29, 2001

Plaintiff

Republic of Korea (Court of Law, Attorney Seo-young, Counsel for defendant-appellant)

Seoul Central District Court Decision 2007Da7018 Decided March 11, 2008

October 30, 2008

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim as to the above cancellation part is dismissed.

3. The plaintiff's appeal is dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Claims;

The defendant shall pay to the plaintiff 50,000,000 won with 5% per annum from the day following the service of the complaint of this case to the day of rendering a judgment of the court of first instance, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be additionally paid shall be revoked. The defendant shall pay to the plaintiff 40 million won with 5% interest per annum from the day following the service of the complaint of this case to the day of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

Defendant: Judgment identical with the Disposition Nos. 1 and 2

1. Facts of recognition;

The reasoning for this part of the court's explanation is as follows: (a) the content of "A evidence interview result table No. 6 is indicated in a brief and brief statement to easily understand the plaintiff and Kim Sung-sung's assertion, and the result of the survey" is the same as the corresponding part of the reasoning, and thus, (b) this part of the judgment of the court of first instance is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. The plaintiff's assertion

In the event that the plaintiff filed a complaint with the prosecutor's office against Nonparty 2, the executive director, Nonparty 3, and Nonparty 4 (hereinafter referred to as "non-party 2, etc.") of the customer support room of the non-party 1 corporation (hereinafter referred to as "company") with the defendant's office due to the crime of false accusation, etc., the prosecutor in charge did not rate them as a crime of false accusation and repeat only the non-party 1 corporation's dismissal or non-prosecution disposition (hereinafter referred to as "non-prosecution disposition") on the ground that it is reasonable. The defendant is obligated to pay consolation money to the plaintiff suffering from mental distress due to the prosecutor in charge's illegal non-prosecution disposition.

B. Defendant’s assertion

In the above accusation case, as long as the prosecutor in charge issued a non-prosecution disposition against the non-party 2, etc. through legitimate investigation procedures, and the constitutional complaint filed by the plaintiff against the non-prosecution disposition is dismissed, the prosecutor in charge shall not be deemed unlawful.

3. Determination

A. The issues of the instant case

The plaintiff asserts that the prosecutor in charge of non-prosecution 2, etc. who was involved in the process of receiving non-prosecution 2, etc.'s non-prosecution 2, etc.'s non-prosecution 2, etc.'s non-prosecution 2, investigation and prosecution, non-prosecution 2, dismissal of appeal and reappeal, and repeated disposition of non-prosecution 2, etc. However, each of the above acts is merely an intermediate process in making a disposition of non-prosecution 2, etc. final disposition of non-prosecution 2, etc., and the above acts are subject to the responsibility of direction and supervision against the head of Seoul High Prosecutors' Office, and the Minister of Justice. However, this is also premised on the premise that the above disposition of non-prosecution 2, etc. is illegal. Thus, the prosecutor in charge, the Seoul High Prosecutors' Office, and the Minister of Justice did not separately judge whether the non-prosecution 2, etc. was illegal,

B. Whether the non-prosecution disposition against the non-party 2 is unlawful

(1) Criteria for determining illegality

A prosecutor who investigates a case and decides whether to institute a public prosecution shall collect all the evidence related to the case and evaluate the collected evidence and make a legal judgment, and determine whether to institute a prosecution after determining whether to prosecute the case, he/she shall make a reasonable decision not to impede the constitutional spirit that guarantees the right to equality before all citizens of the law, the right to make a statement in the trial proceedings of the criminal victim, the right to rescue the victim from a crime, etc., and not to undermine the people's trust in exercising the right to

However, in a case where a public prosecution is instituted, the legal judgment is not only a flexible and absolute interpretation, but also a variety of opinions can be divided depending on the person who conducts it, and when considering the limit of human ability, it cannot be viewed illegal since the judgment action is not based on the general legal concept. Thus, it may not be limited to a case where it is recognized that it was an obvious emergency judgment from among the general public who have a sound common sense. In other words, in light of the empirical and logical rule, only if there is a clear defect that it is difficult to affirm the rationality of the judgment, the judgment of the public prosecutor in question is illegal (see Supreme Court Decision 9Da17302, Jun. 29, 2001, etc.).

Therefore, in light of the empirical rule and logical rule, we examine whether the non-prosecution disposition against Non-Party 2, etc. against Non-Party 2, etc. constitutes a case where there is a clear and apparent defect that it is difficult to affirm the reasonableness of the relevant judgment.

(2) Whether non-prosecution disposition against Non-party 2 is unlawful

According to the facts established above, Nonparty 2 asserted that he did not know about the complaint and that he did not follow the summons investigation by the investigative agency, and that he did not follow the order, and that Nonparty 3 and Nonparty 4 who submitted the direct written complaint against the plaintiff, who had ordered the plaintiff, also made a consistent statement that he did not report to Nonparty 2 at all. Under this circumstance, the prosecutor's name is not easy to prove the suspicion of non-party 2's non-prosecution's non-prosecution's non-prosecution and did not summon and investigate the non-party 2. Thus, if the prosecutor did not take a non-prosecution disposition without summons and investigation, regardless of the feasibility of the judgment, it is difficult to acknowledge that the above non-prosecution disposition is a wrong disposition to the extent that it is impossible to affirm the rationality of the judgment, and further, it cannot be deemed that the prosecutor's disposition of non-prosecution disposition was unlawful merely because the prosecutor's name was placed beyond the investigation time limit set by the regulations on the warning. Thus, this part of the plaintiff's assertion is without merit.

(3) Whether the non-prosecution disposition against Non-party 3 and 4 is unlawful

Next, it is clear that the above accusation was based on false facts in the trial on the case in which Nonparty 3 and Nonparty 4 filed a complaint against the Plaintiff on the part of the crime of forging private documents and uttering of private documents with respect to the non-prosecution disposition against the Plaintiff who submitted the complaint under the direction of Nonparty 3 and Nonparty 4. The facts that the Plaintiff was acquitted on the part of the crime of forging private documents and uttering are as seen earlier.

However, in the case where Nonparty 3 and Nonparty 4 filed a complaint against the Plaintiff, it cannot be deemed that the Plaintiff was acquitted immediately and the charges of false accusation by Nonparty 3 and Nonparty 4 were established. However, there is room to view that the prosecutor’s complaint against Nonparty 3 and Nonparty 4 was merely an exaggeration in legal reasoning inasmuch as the Plaintiff newly tamped the existing mail and re-drawed the e-mail by inserting some phrases, the above complaint by Nonparty 3 and Nonparty 4 may not be deemed to be merely an exaggeration in the above legal reasoning. In the situation where the main body of the mail is deleted, Nonparty 3 and Nonparty 4 did not see the original body of the mail, and it is probable that the Plaintiff filed a complaint based on the results of the investigation. ③ Nonparty 3 and Nonparty 4 did not know that the instant complaint was based on false facts in the prosecutor’s investigation, and even if there was no sufficient evidence to acknowledge the intention of the crime of false accusation, it is not reasonable to deem the prosecutor’s decision of non-prosecution disposition to the extent that it was reasonable in light of the above reasoning.

C. Whether there is a proximate causal link with the above non-prosecution disposition on the Plaintiff

In addition to the determination of illegality of the disposition of non-prosecution as above, we also examine whether the mental suffering that the Plaintiff received through the above disposition of non-prosecution can be seen as having proximate causal relation with the above disposition of non-prosecution.

The purpose of the prosecution by the investigation and prosecutor is to realize the public interest, such as maintaining the order of the State and society, and for this purpose, the Criminal Procedure Act entrusts the investigative authority to the prosecutor, while recognizing the authority of the prosecution as the representative of the public interest, and recognizes a wide range of discretion as to the prosecution.

Of course, there is a case where the appropriate exercise of prosecutor's right to investigate and prosecute the victim's property and mental damage recovery is related to the victim's property and it cannot be denied that the citizen has a strong expectation. However, the purpose of the right to investigate and prosecute is to realize the public interest of the State and society, such as the maintenance of order, thereby protecting the victim's personal interest or compensating the victim's damage. Thus, the expectation of the victim's criminal punishment is not satisfied due to the prosecutor's non-prosecution disposition, and even if the victim complains for mental suffering, it cannot be seen as an incidental and anti-private consequence accompanying the exercise of prosecutor's right.

Furthermore, the law provides procedures for appeal, reappeal, application for adjudication, and constitutional complaint against the prosecutor's non-prosecution disposition, and the victim can be compensated for property and mental damage by claiming direct compensation against the perpetrator.

In the instant case, the Plaintiff was undergoing all appeals such as appeal, reappeal and constitutional complaint, and received some favorable judgment by filing a lawsuit for damages against the perpetrator. Although the perpetrator was not prosecuted, considering the nature of exercising the prosecution right, the relevant laws and regulations on the victim's objection or remedy, the scope of protection purpose, and the circumstances that the Plaintiff suffered damages through actual civil litigation, barring special circumstances, the mental suffering claimed by the Plaintiff cannot be deemed as losses in proximate causal relation with the non-prosecution disposition. Thus, even in this case, the Plaintiff's assertion is groundless.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed without any reason to examine further the calculation of damages. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the defendant among the judgment of the court of first instance which accepted the defendant's appeal and dismissed the plaintiff's claim as to the above cancellation part, and the plaintiff's appeal is dismissed as it is without reason. It is so decided as per Disposition.

Judges Kim Jong-won (Presiding Judge)