[2] Requirements for recognizing that the victim had expressed his/her wish not to punish or withdrawn his/her wishing to punish in the crime of non-violation of punishment / Where the victim is a minor under the age of the victim, the standard for determining whether the legal representative’s expression of wish to punish the defendant, etc. includes the victim’s intent

1. The non-existence of the expression of intent to not impose punishment in the crime of non-compliance is a passive litigation condition, and thus ex officio investigation is required, even if the party did not assert it as the grounds for appeal, the appellate court shall ex officio investigate and determine it (see Supreme Court Decision 2000Do3172, Apr. 24, 2001, etc.).

Article 260(3) of the Criminal Act provides that the crime of assault may not be prosecuted against the clearly expressed will of the victim. Article 232(3) and (1) of the Criminal Procedure Act provides that the withdrawal of declaration of wishing to punish may be made prior to the pronouncement of the judgment of the court of first instance in a case in which the crime cannot be prosecuted against the clearly expressed will of the victim.

In order to recognize that the victim expressed his/her wish not to punish or withdrawn his/her wishing to punish a crime of non-violation of will, the victim’s genuine intent should be expressed in a way that is obvious and reliable (see, e.g., Supreme Court Decision 2001Do1809, Jun. 15, 2001). In cases of a minor who is the age of the victim, whether the victim’s legal representative included his/her intent in the declaration of intention to punish the defendant, etc. shall be determined by comprehensively taking into account the type and content of the subject case, the victim’s age, the actual subject and content of the agreement, the circumstances before and after the agreement, the legal representative, and the attitude of the victim (see, e.g., Supreme Court Decision 2009Do5658, May 13, 201

2. In full view of the following circumstances acknowledged in light of the foregoing legal doctrine, there is room to deem that the expression of intent to not punish the Defendant by the mother, who is the legal representative of the relevant victimized child, includes the intent of the relevant victimized child himself/herself.

A. Pursuant to Article 16 of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes and Article 27(6) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, a prosecutor appointed an attorney-at-law as a public defender of the victimized child. The public defender of the victimized child submitted each “written agreement and written non-written application for punishment” prepared in the name of the mother, who is the legal representative of the victimized child, who is the legal representative of the victimized child, prior to the pronouncement of the first instance judgment.

B. Although each of the above “written agreements and written applications for no punishment” submitted to the first instance court, the mother, who is the legal representative of the relevant victimized child, is the legal representative of the relevant victimized child, the content does not want the punishment of the relevant victimized child himself/herself.

C. At the time of the submission of each of the above agreements and written applications for no punishment, the age of the victimized children was over 8 to 12, and the said victimized children seems to have been under the protection of the mother, who is the legal representative.

D. The above victimized children have made a statement at an investigative agency under the protection of their mother who is a legal representative.

3. Therefore, the lower court should have examined whether each of the above “written agreements and written applications for non-prosecution of punishment” included the relevant victimized children’s expression of intention not to punish the said victimized children. Nevertheless, the lower court, without further deliberation, found the said victimized children guilty of assaulting the said victimized children among the facts charged in the instant case. In so doing, the lower court erred by misapprehending the legal doctrine on the expression of intention not to punish the said victimized children, which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. In so doing, the remaining portions that the lower court found guilty are in a commercial

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)