Strict Interpretation of Punishment Requirements and Procedural Qualifications in Economic Crime — A Review of the Legal Principles in Three Supreme Court Judgments

Question

What must a court-appointed administrator of an absentee's property possess in order to be recognised as a person lawfully entitled to file a criminal complaint on the ground of a criminal act against the property under administration? The core issues are whether the administrator is included among the legal representatives provided for in Article 225(1) of the Criminal Procedure Act, and whether the court's permission to exercise the right to file a complaint is a substantive or a procedural requirement of the complaint. The further question is what effect the complaint has where it is filed first and permission is obtained afterwards.

Where a penal provision constitutes the requirements for punishment by incorporating a concept defined in an administrative statute, the question is how narrowly that administrative concept must be read. The issue is whether the project proprietor, as the actor in the offence of recruiting occupants without approval punished under Article 102, subparagraph 13, of the Housing Act, is limited to an implementer who has obtained approval of a housing construction project plan, or also includes a person preparing in anticipation of approval. Whether any other route remains for punishing recruitment conducted before approval must also be examined.

How far does the scope of revenue under an agency's jurisdiction, whose direct use is prohibited by Article 7 of the National Treasury Management Act, extend? If the standard is whether the cash has been paid to the State pursuant to statute or contract and is managed by the head of a central government agency through collection and receipt procedures, the ensuing question is how to distinguish rental income generated by a front business from temporary receipts that retain the character of budget funds. The brief also examines how this distinction bears directly on whether the offence of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss of National Treasury, etc.) is established.

Material to check

In an absentee property administrator case, the decision appointing the property administrator must first be secured. The scope of administrative affairs and restrictions on authority set by the appointment decision, and the timing and content of the separate decision by which the court authorized the exercise of the right to file a complaint, must be precisely cross-checked. The filing date of the complaint, and the registry records, related documents, and explanatory materials showing whether the property subject to the complaint falls within the scope of property under administration set by the appointment decision, must follow.

In the Housing Act matter, the application for approval of a housing construction project plan and the records of the competent authority showing whether it was received or accepted come first. Whether an application for approval of the public recruitment of residents was filed, the recruitment public notice and advertisements, the subscription reception records, and the time of execution of housing sale contracts and the settlement of amounts must be arranged chronologically. Minutes of meetings and internal approval materials concerning under what name and by what procedure the project implementer conducted recruitment activities at the pre-approval stage also affect the determination.

In the Management of the National Funds Act matter, accounting books and account transaction records are the key evidence. Vouchers and receipts must be checked showing who opened the account in the name of the paper company, the point in time to which rental proceeds are attributed as revenue, and whether the collection and receipt procedures were followed. Budget accounting guidelines determining the character of suspense funds, and execution records and audit materials showing from which budget item the funds originally came and in what manner they were held, are also required.

For all three matters, the original text of the relevant provisions and their amendment history are essential. The wording before and after the amendments to the Management of the National Funds Act, the National Finance Act, and the National Intelligence Service Act must be compared, and the history of the definition of housing project operator and the punishment provisions under the Housing Act must be checked. It is advisable also to place together the provisions on the requirements for a complaint and an accusation under the Criminal Procedure Act, and to arrange chronologically when the procedural requirements were satisfied.

Possible readings

As to the administrator's right to file a complaint, one interpretation holds that since the administrator's authority is in principle limited to acts of administration, a criminal complaint exceeds that scope and cannot be lawful without the court's authorization. The opposing interpretation holds that, because the administrator stands in a position of safeguarding the property in place of the absentee, a complaint against a crime is also a natural extension of acts of administration, so that no separate authorization need be required. The core of the dispute is whether a criminal complaint is to be regarded as belonging to the essence of acts of administration, and whether treating authorization as a requirement makes it possible to prevent abuse of rights and unfounded complaints.

In the Housing Act matter, the narrow interpretation holds that concepts under an administrative statute that fall within the scope of application of a penal statute must also be read strictly, and therefore a person who has not obtained approval is not a housing project operator. The broad interpretation counters that, attending to the substance of the project's pursuit and the risk of recruitment activities, a project implementer who anticipates approval must also be regarded as a housing project operator so that no regulatory gap in unauthorized recruitment arises. The broad interpretation, however, faces the criticism that it brings about an expansion of punishment beyond nullum crimen sine lege and beyond the requirements of the administrative statute.

As to revenue in its charge, one side regards only funds paid to the State and managed through collection and receipt procedures as revenue in its charge, thereby limiting the object of the prohibition on direct use. The other side contends that funds of a public character should be protected on par with National Treasury funds regardless of the form of receipt. This conflict appears most clearly in whether funds that retain the character of the budget and differ only in the form of holding are to be regarded as revenue in its charge.

What the decisions held

Supreme Court Judgment 2021Do2488 set out the requirements for recognising an administrator of an absentee's property as entitled to file a criminal complaint. Where a court-appointed administrator of an absentee's property has obtained the court's permission to exercise the right to file a complaint concerning a criminal act against the absentee's property under administration, the administrator is a person lawfully entitled to file a complaint as a legal representative under Article 225(1) of the Criminal Procedure Act. Taking into account the purport of Article 25 of the Civil Act, under which the administrator's authority is in principle limited to acts of administration, the Court held that with the court's permission the administrator may perform acts beyond the scope of administration, and that a criminal complaint is included among such acts. The judgment only set out the requirements; it did not state any standard for the allocation of the burden of proof.

Supreme Court Judgment 2021Do10981 extended the principle of strict interpretation of penal provisions to the interpretation of administrative statutes. The principle that penal provisions must be interpreted strictly derives from Article 12(1) of the Constitution of the Republic of Korea and Article 1(1) of the Criminal Act, and where the subject matter to which a penal provision applies consists of matters defined in an administrative statute, the principle also applies to the interpretation of the provisions of that administrative statute. Because a project proprietor under Article 2, subparagraph 10, of the Housing Act is a person who implements a project after obtaining approval of a housing construction project plan, a person who intended to implement a project in anticipation of approval is not a project proprietor while approval has not yet been obtained. As a result, the requirements for punishment under Article 102, subparagraph 13, of the Housing Act are not met.

Supreme Court Judgment 2020Do12583 settled the meaning of revenue under an agency's jurisdiction in Article 7 of the National Treasury Management Act. Revenue under an agency's jurisdiction whose direct use is prohibited means cash or the like that has been paid to the State pursuant to statute, contract or the like and is managed by the head of a central government agency through collection and receipt procedures. Under this standard, the rental income of a front business falls within revenue under the agency's jurisdiction, but temporary receipts that retained the character of the National Intelligence Service's budget and merely changed in the form of custody do not. The same judgment also addressed the offence of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss of National Treasury, etc.), the provisions punishing abuse of authority in Articles 13 and 22(1) of the National Intelligence Service Act, the concurrent-crimes relationship under Article 37 of the Criminal Act, and the starting point of the statute of limitations under Article 252(1) of the Criminal Procedure Act.

Practical checklist

First, have you confirmed in documents the status and authority of the person who filed the complaint on your behalf? The scope of administrative affairs in the appointment decision, the existence of the court's decision authorizing the exercise of the right to file a complaint and its timing, and the sequence of the filing of the complaint should be arranged in a single chronological order to check whether the point in time of satisfaction of the requirements becomes clear.

Second, have you examined whether the status of the target of punishment fits precisely within the definition of the provision? Where a penal statute incorporates concepts of other statutes, as with housing project operator, revenue in its charge, and statutory representative, you must ask yourself whether you compared the wording of the concept and its procedural requirements as they stand, and did not extend them by reason of anticipated or similar circumstances.

Third, are the character and route of the funds organized as evidence? It must be checked whether this is supported by vouchers, account records, and accounting guidelines as to whether the funds were paid to the State, whether the collection and receipt procedures were followed, and the character of which budget item they retain. Records focusing not on form but on procedure and character are needed.

Fourth, are all procedural requirements met? Whether it is a crime requiring a complaint or an accusation, whether the person filing is lawful, and whether the required timing and manner were observed must be compared directly against the provisions of the Criminal Procedure Act. A defect in procedural requirements may determine the outcome before the substantive determination.

Glossary

An administrator of an absentee's property is a person appointed by the court to preserve and manage the absentee's property. The administrator's authority is in principle limited to acts of administration, but with the court's permission the administrator may perform acts beyond that scope, and Supreme Court Judgment 2021Do2488 held that a criminal complaint concerning a criminal act relating to the property under administration falls within that scope. The administrator has no right to file a complaint, however, regarding matters not under administration. A legal representative means a person who has authority under statute to act on behalf of another, and Article 225(1) of the Criminal Procedure Act recognises such a person as entitled to file a complaint.

A project proprietor is, under the Housing Act, a person who implements a project after obtaining approval of a housing construction project plan. Supreme Court Judgment 2021Do10981 applied this definition strictly to the subject matter of the penal provision and held that an implementer at the stage of anticipating approval is not included among project proprietors. Recruitment of occupants means the act of accepting applications for the purpose of supplying housing; where a project proprietor recruits occupants without the approval of the competent authority, the penal provision applies, whereas a person at the stage of anticipating approval is not a project proprietor and is not punished.

Revenue under an agency's jurisdiction means, under the National Treasury Management Act, cash or the like that has been paid to the State pursuant to statute, contract or the like and is managed by the head of a central government agency through collection and receipt procedures. The temporary receipts at issue in Supreme Court Judgment 2020Do12583 retained their character as budget funds allocated to the National Intelligence Service and merely changed in the formal holder or form of custody; in such a case they do not fall within revenue under the agency's jurisdiction. The offence of loss of the national treasury refers to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss of National Treasury, etc.), and it was at issue where funds having the character of the National Intelligence Service's budget were used for purposes outside the scope of the Service's duties.

Sources and limitations

This white paper was prepared solely on the basis of the judgments in Supreme Court Decision 2021Do2488, Supreme Court Decision 2021Do10981, and Supreme Court Decision 2020Do12583 and the provisions cited in those decisions. The original text of the provisions and their amendment history were cross-checked against the materials of the National Law Information Center as of 2026-10-15, and no other precedents or commentary were cited. As the facts of the cited decisions depend on the records of each matter, there are limits to generalization.

This document is general research material and is not legal advice. A legal determination or response strategy for a specific matter must not be decided on the basis of what is written here alone; in an actual matter, the current text of the relevant provisions, the related records, and the facts by point in time must be separately confirmed, and where necessary, the advice of a qualified expert must be sought. Precedents and statutes may subsequently change, so verification of the latest materials must be presupposed.

Points left open

Where an absentee property administrator filed a complaint first and then obtained authorization from the court to exercise the right to file a complaint, whether that complaint is to be regarded as lawful from the outset has not been settled. Supreme Court Decision 2021Do2488 confirmed only the lawfulness in the case where authorization was obtained, and did not clarify the question of the sequence of authorization or the possibility of curing a complaint filed without authorization.

It also remains whether an act of recruiting residents prior to approval of a housing construction project plan may fall under other punishment provisions of the Housing Act, and what exceptions exist permitting direct use of revenue in its charge under the Management of the National Funds Act pursuant to special provisions of other Acts. In both matters, it is necessary to further confirm whether exceptions and alternative routes exist outside the standard set by the Supreme Court.

When to reconsider

This white paper needs to be reviewed when the relevant provisions are amended or the Supreme Court presents a new standard on the same issue. In particular, if the requirements for a complaint and an accusation under the Criminal Procedure Act, the accounting procedures under the Management of the National Funds Act and the National Finance Act, or the provisions on housing project operators and recruitment approval under the Housing Act change, the scope of application of the three cited decisions must also be re-examined.

On a matter-by-matter basis, the analysis in this document must be updated when the content of the appointment decision or authorization decision defining the scope of the administrator's authority changes, when the sequence of the approval timing and the recruitment acts is disputed at the project advancement stage, and when accounting records concerning the receipt procedures and character of the funds are newly revealed. If materials are supplemented, the facts by point in time need to be re-arranged to re-determine whether the requirements are satisfied.

Statutes referred to

• 형법 제1조 제1항, 제37조, 제123조, 제328조 제2항
• 형사소송법 제223조, 제225조 제1항, 제252조 제1항
• 민법 제25조
• 대한민국헌법 제12조 제1항
• 주택법 제2조 제10호, 제15조, 제54조 제1항 제1호, 제102조 제13호
• 국고금 관리법 제2조 제1호 (가)목, 제2조 제2호, 제3조 제1항 제2호, 제5조, 제6조, 제7조
• 국가재정법 제17조
• 국가정보원법 제2조, 제13조, 제22조 제1항
• 구 국가안전기획부법 제11조 제1항, 제19조 제1항
• 구 국가정보원법 제11조 제1항, 제19조 제1항

Decisions referred to

• 대법원 2022. 5. 26. 선고 2021도2488 판결 · Decision ledger
• 대법원 2021. 11. 25. 선고 2021도10981 판결 · Decision ledger
• 대법원 2021. 3. 11. 선고 2020도12583 판결 · Decision ledger

Verification status

The relevant statutory provisions and the judgments in Supreme Court Decision 2021Do2488, Supreme Court Decision 2021Do10981, and Supreme Court Decision 2020Do12583 were cross-checked against the National Law Information Center as of 2026-10-15. This white paper cites only the three decisions stated among the decisions it addresses.