[edit] Supreme Court Full Bench Order 2000Mo22 dated May 29, 2001 [Re-appeal of Order to Cancel the Release on Bail]

【Main Issues】

Whether the decision for the confiscation of the bail must concurrently occur with the cancellation of the release on bail (negative)

【Summary of Decision】

[Majority opinion] Considering the following: (i) Paragraph 2 of Article 102 of the Criminal Procedure Act provides that "at the time of the cancellation of the release on bail, the order can also confiscate part or all of the guarantee amount," and in case where the decision for cancellation of bail was imposed due to a justifiable reasons for cancellation of bail, this can be interpreted as a possibility of confiscation of part or all of bail guarantee amount, but according to the sentence above it is difficult to conclude that the confiscation of the guarantee amount for bailment should concurrently occur with cancellation of bailment, (ii) Since Article 103 of the same Act provides that in case of when a party who has not replied to a summons to return for an execution of decision of guilt, or fled, the guarantee amount can be confiscated, the guarantee amount for bail guarantees the securing of the body during the trial procedure leading to the execution of the penalty. Thus, considering (i) the function of the guarantee amount for bailment should be seen as a collateral to secure a body during an enforcement of a criminal penalty process, and (ii) there is need to carefully exam the extent of the confiscation amount and the principality of the confiscation (existence of either violation for the condition of bailment or attributable reasons) while the decision to cancel the bail mostly requires quickness, it does not have to be enforced with cancellation of bail at the same time, but the decision to confiscate the guarantee amount can occur separately after the cancellation of the bail. And even though Article 104 of Criminal Procedure Act provides that the guarantee amount that has not been confiscated, when effect of writ of confinement is expired or when the bail is cancelled or the party is arrested, should be restored 7 days after the date the request has been filed for the guarantee amount, the interpretation of this article does not make it impossible to confiscate the guarantee amount after the cancellation of bailment.

[Dissenting opinion] Paragraph 1 of Article 102 of the Criminal Procedure Act seems as if it only provides the attributable reasons for the cancellation of bail, but among the listed reasons therein when the defendant fled (item 1), when non-attendance without justifiable reason after summons (item 3), and when violation of either the conditions which have been imposed by a court or limitation of residence (item 5) are the information intended to secure the guarantee amount. Thus, each item of Paragraph 1 can concurrently confiscate the guarantee amount for bail in case of cancellation of bailment for reasons contained within item of Paragraph 1. However, because cases exist that cannot conclude that the defendant must have had attributable reasons or violated conditions for bail just because the listed reasons under Paragraph 1 exist. The confiscation of the guarantee amount is not an automatic requirement, but a discretionary measure. Paragraph 2 of Article 102 of the same Act expresses period limitation that the guarantee amount can be confiscated by providing that "when there is cancellation of bail," and the meaning of the sentence does not have any logical base to interpret broadly as 'anytime in case of when attributable reasons exist for cancellation of bailment." The Criminal Procedure Act allows confiscation of the guarantee amount for bail 'in case of cancellation of bail,' and thus bailment can be cancelled without confiscation of the guarantee amount, but on the contrary there is no possibility of the confiscation of the guarantee amount without cancellation of bail. Cancelling bail again can not occur even if the reasons under Paragraph 1 of Article 102 of the same Act occurs after the cancellation of bail and the function of collateral or the attendance of guarantee amount for bail extinguished with cancellation of bail. Therefore, in case of cancellation of the bail without the confiscation of the guarantee amount, it is a reasonable and natural conclusion to see the character of the guarantee amount to be returned in accordance with Article 104, not a the guarantee amount for bail to be confiscated. Article 103 of the same Act, as a provision regarding a 'bailed party' that is 'a released party with approval for bail,' is not a provision regarding 'a party to receive the decision for canceling of bail,' and the purpose of the provision is that the effect of the writ of confinement is cancelled for a party who was released with bail receiving a guilty or not guilty verdict, and when the decision of the court is concluded. Decision for approval of bail also become effective, and even if the defendant does not summon or disobey the enforcement of the conviction, the court cannot confiscate the guarantee amount for bail according to Article 102 of the same Act, rather the defendant gets the right to request the return of guarantee amount for bail in accordance with Article 104 of the same Act. In the case above, the Act intends to secure the body of the defendant during the enforcement step of punishment by exceptionally allowing the confiscation of the guarantee amount. In short, since Article 103 of the same Act is a special provision regarding Articles 104 and 102 of the same Act, and since it is a provision regarding a bailed party as a special provision, the guarantee amount for bailment cannot be interpreted as collateral including re-confinement after the cancellation of bailment by broad interpretation. Article 104 of the same law provides that "in case when there is s cancellation of bail or confinement or extinction of the effect of the writ of confinement, the guarantee amount which is not confiscated should be returned within 7 days from the date of request." According to the interpretation, a defendant who received a decision to cancel the release on bail shall be considered to have the right to request the return of the bail amount that is not immediately confiscated from the decision date. Thus, the court cannot be allowed to interfere with defendant's vested right to request the return of the bail money without a clear and basic provision like Article 103 of the same Act. Although it seems against the sound consensus in law to return the bail money to the defendant who disobeyed the re-confinement order following the cancellation of the release on bail and ran away, you cannot put disadvantageous penalty on the defendant without law, considering the prohibition of analogy and broad interpretation of criminal law, and the rule of nulla poena sine lege.

【Reference Provisions】 Paragraphs 1 and 2 of Article 102, Article 103 and Article 104 of the Criminal Procedure Act, Paragraph 1 of Article 12 of the Constitution

Article 102 of the Criminal Procedure Act (Revocation of Release on Bail, etc. or Confiscation of Bail Money) (1) If the defendant falls under any of the following items, the court may, ex officio or upon request of a public prosecutor, by a ruling, cancel release on bail or the suspension of execution of detention; provided, that the suspension of execution of warrant of detention under Paragraph 4 of Article 101 shall not be cancelled during the session concerned.

(2) In case the release on bail is cancelled, the court may, by means of a ruling, cause forfeiture of the whole or a part of the bail money.

Article 103 of the Criminal Procedure Act (Final Judgment and Confiscation of Bail Money) When a person released on bail against whom a sentence has been given and the judgment has become final, has failed to appear without justifiable reason when ordered before the court for execution, or has taken flight, the court shall, on motion of a public prosecutor or ex officio, by means of a ruling, cause forfeiture of the whole or a part of the bail money.

Article 104 of the Criminal Procedure Act (Refund of Bail Money) When detention or release on bail is rescinded, or the term of the warrant of detention expires, part of the bail money which is not forfeited shall be returned within seven days on demand.

Article 12 of the Constitution

(1) All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized or interrogated except as provided by Act. No person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act and through lawful procedures.

(2)~(7) <omitted>

【Reference Case】 Supreme Court Decision 65Mo4 delivered on March 13, 1970 (repealed)

【Re-appellant】 Re-appellant

【Court of First Instance】 Bucheon Branch of Incheon District Court Order 99Cho168 Dated November 24, 1999

【Court of Second Instance】 Incheon District Court Order 99Ro13 Dated January 14, 2000

【Disposition】 The reappeal shall be dismissed.

【Reasoning】 1. Considering the following: (i) Paragraph 2 of Article 102 of the Criminal Procedure Act provides that "at the time of cancellation of bail, the decision can also confiscate part or all of the guarantee amount," and in case of when the decision for cancellation of bail imposed due to a justifiable reasons for cancellation of bail, this can be interpreted as a possibility of confiscation of part or all of bail guarantee amount, but according to the sentence above it is difficult to conclude that the confiscation of the guarantee amount for bailment should concurrently occur with cancellation of bailment, (ii) Since Article 103 of the same Act provides that in case of when a party who has not replied to a summons to return for an execution of decision of guilt, or fled, the guarantee amount can be confiscated, the guarantee amount for bail guarantees the securing of the body during the trial procedue leading to the execution of the penalty. Thus , considering (i) the function of the guarantee amount for bailment should be seen as a collateral to secure a body during a enforcement of a criminal penalty process, and (ii) there is need to carefully exam the extent of the confiscation amount and the principality of the confiscation (existence of either violation for the condition of bailment or attributable reasons) while the decision to cancel the bail mostly requires quickness, it does not have to be enforced with cancellation of bail at the same time, but the decision to confiscate the guarantee amount can occur separately after the cancellation of the bail.

And even though Article 104 of Criminal Procedure Act provides that the guarantee amount that has not been confiscated, when effect of writ of confinement is expired or when the bail is cancelled or the party is arrested, should be restored 7 days after the date the request has been filed for the guarantee amount, the interpretation of this article does not make it impossible to confiscate the guarantee amount after the cancellation of bailment.

Hence, contrary to the above, if the court canceled the bailment without confiscating the guarantee amount as punishment during sentencing, because of Supreme Court Order 65Mo4 Dated March 13, 1970, decided in the decision guarantee amount for the reason of fleeing by a defendant cannot be enforced.

The ground for reappeal cannot be accepted because the court below's decision to dismiss the appeal stands because the guarantee amount for bail is allowed to be confiscated for the reason of the re-appellant's disappearance after the decision of cancellation of bail.

Therefore, the reappeal shall be dismissed as reflected in the Disposition. Except for the dissenting opinion of Justice Yoo Ji-dam and Justice Kang Shin-wook, the opinions of the participating Justices were in accord.

2. The dissenting opinion of Justice Yoo Ji-dam and Justice Kang Shin-wook is as follows:

A. Criminal Procedure Act (hereafter referred to as the 'Act') provides two kinds of instances regarding confiscation of guarantee amount for bail.

One of the instance is a discretionary confiscation when there is cancellation of bail (Paragraph 2 of Article 102 of the Act), the other one is necessary confiscation when the bailed party flees or does not attend without a justifiable reason after a summons order delivered to enforce the final decision after the sentencing. (Article 103 of the Act).

This case is about cancellation of bail as the court below has sentenced the defendant to 10 months imprisonment. But it is not about enforcement of the sentence. Therefore, it is a confiscation according to the provision of Paragraph 2 of Article 102 of the Act.

B. According to Article 102 of the Act, Paragraph 1 provides that a defendant who has met items 1 through 5 can cancel bail, and Paragraph 2 provides that 'in case of the cancellation of bail' all or part of guarantee amount can be confiscated.

Paragraph 1 of Article 102 of the Act seems as if it only provides the attributable reasons for the cancellation of bail, but among the listed reasons therein when the defendant fled (item 1), when non-attendance without justifiable reason after summons (item 3), and when violation of either the conditions which have been imposed by a court or limitation of residence (item 5) are the information intended to secure the guarantee amount. Thus, each item of Paragraph 1 can concurrently confiscate the guarantee amount for bail in case of cancellation of bailment for reasons contained within items of Paragraph 1. However, because cases exist that cannot conclude that the defendant must have had attributable reasons or violated conditions for bail just because the listed reasons under Paragraph 1 exists, the confiscation of the guarantee amount is not a automatic requirement, but a discretionary measure.

C. Paragraph 2 of Article 102 of the Act expresses period limitation that the guarantee amount can be confiscated by providing that "when there is cancellation of bail," and the meaning of the sentence does not have any logical base to interpret broadly as "anytime in case of when attributable reasons exist for cancellation of bailment."

The Act allows confiscation of the guarantee amount for bail 'in case of cancellation of bail,' and thus bailment can be cancelled without confiscation of the guarantee amount, but on the contrary there is no possibility of the confiscation of the guarantee amount without cancellation of bail. Canceling bail again cannot occur even if the reasons under Paragraph 1 of Article 102 of the same Act occurs after the cancellation of bail and the function of collateral or the attendance of guarantee amount for bail extinguished with cancellation of bail. Therefore, in case of cancellation of the bail without the confiscation of the guarantee amount, it is a reasonable and natural conclusion to see the character of the guarantee amount to be returned in accordance with Article 104, not a the guarantee amount for bail to be confiscated.

The majority opinion that the guarantee amount for bail can be confiscated separately if reasons to cancel bail occur again after the cancellation of bail does not have any basis in the current law.

D. The majority opinion, in light of Article 103 of the Act, sees the guarantee amount has functions of collateral to secure the body during the steps that lead to sentencing on top of the attendance in the trial procedure, and allowed a court to confiscate the guarantee amount for bail after the decision to cancel bail. Article 103 of the Act, as a provision regarding a 'bailed party' that is 'a released party with approval for bail,' is not a provision regarding 'a party to receive the decision for canceling of bail,' and the purpose of the provision is that the effect of the writ of confinement is cancelled for a party who was released with bail receiving a guilty or not guilty verdict, and when the decision of the court is concluded. Decision for approval of bail also become effective, and even if the defendant does not answer to the summon or disobey the enforcement of the conviction, the court cannot confiscate the guarantee amount for bail according to Article 102 of the Act, rather the defendant gets the right to request the return of guarantee amount for bail in accordance with Article 104 of the Act. In the case above, the Act intends to secure the body of the defendant during the enforcement step of punishment by exceptionally allowing the confiscation of the guarantee amount. In short, since Article 103 of the Act is a special provision regarding Articles 104 and 102 of the Act, and since it is a provision regarding a bailed party as a special provision, the guarantee amount for bailment cannot be interpreted as collateral including re-confinement after the cancellation of bailment by broad interpretation.

E. Article 104 of the Act provides that "in case when there is cancellation of bail or confinement or extinction of the effect of the writ of confinement, the guarantee amount which is not confiscated should be returned within 7 days from the date of request." According to the interpretation, a defendant who received a decision for cancellation of bailment shall be considered to have the right to request the return of the guarantee amount that is not immediately confiscated from the decision date. Thus, the court cannot be allowed to interfere with the defendant's right to request the return that have already vested without a clear and basic provision under Article 103 of the Act. Because according to the majority opinion, the guarantee amount for bail cannot be confiscated from the defendant who has immediately received the return of the guarantee amount for bail after the decision for cancellation of bail, but a court can confiscate the guarantee amount anytime from a defendant who has not received the return of the guarantee amount after decision to cancel bailment, and this causes an unbalance in the position of a defendant. Furthermore, in order to decide the confiscation of guarantee amount for bail, the court needs to consider case by case whether or not the guarantee amount for bail has been returned, and this must be unjustified.

F. Because the return of the guarantee amount to a defendant who has ran away by disobeying the re-confinement in accordance with the decision of cancellation of bail is contrary to sound law, imposing disadvantageous penalty on a defendant without legal basis shall not be allowed under the legal principles such as the prohibition of analogical interpretation, board interpretation of criminal law, and the principle of nulla poena sine lege. As long as there is no attributable reason for oneself, violation of the condition which has been established by the court, or fleeing, the defendant who has received the decision for bail approval of bail by the court has an expectation that the party will not be re-confined until the conclusion of the court decision, and if the court decided to cancel bail as sentencing for imprisonment who had this expectation and faithfully attended at the trial and has not violated the condition for bail, it shall be considered that trial cancelled bail without a decision to confiscate the guarantee amount. Allowing the decision to confiscate the guarantee amount for bail, in contrast to the trial above just because the defendant fled shall not be accepted, since it puts a defendant's legal position that the bailment has been canceled on an unstable status by putting forth the convenience of re-confinement in accordance to the cancellation of bail.

G. We cannot agree with the majority opinion, and this Court's Order 65Mo4 dated March 13, 1970, which the majority reasoned to overrule, should be maintained.

Chief Justice Choi Jong-young (Presiding Justice)

Justices Song Jin-hun

Suh Sung

Cho Moo-jeh

Yoo Ji-dam

Yoon Jae-sik (Justice in charge)

Lee Yong-woo

Bae Ki-won

Kang Shin-wook

Lee Kyu-hong

Lee Kang-kook

Son Ji-yol

Park Jae-yoon

This is a legal document in the public domain according to Korean Copyright Law.