[청소년의성보호에관한법률위반(청소년강간등)][미간행]
[1] The standard for determining whether a legal representative's expression of his/her intent is included in the victim's expression of intention to not punish the defendant, etc. in the crime of no punishment against reflective will
[2] In a case where the father, who is a legal representative, expressed his intent not to punish the defendant on behalf of the victim of a sex offense against juveniles (the age of 13) under Article 7 (4) of the former Act on the Protection of Juveniles against Sexual Abuse, the case affirming the judgment below dismissing the prosecution on the ground that the victim's intent is included in the victim's expression of intent
[1] Article 327 subparagraph 6 of the Criminal Procedure Act / [2] Article 7 (4) of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 9765 of Jun. 9, 2009) (see current Article 7 (5)), Article 16 subparagraph 1 (see current Article 16 subparagraph 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse), Article 327 subparagraph 6 of the Criminal Procedure Act
[1] Supreme Court Decision 2001Do1809 Decided June 15, 2001 (Gong2001Ha, 1672) Supreme Court Decision 2003Do4934 Decided June 25, 2004, Supreme Court Decision 2007Do3405 Decided September 6, 2007
Defendant
Prosecutor
Attorney Lee Dong-soo
Seoul High Court Decision 2009No594 decided June 11, 2009
The appeal is dismissed.
We examine the grounds of appeal.
In order to recognize that the victim has expressed his/her wish not to punish or withdrawn his/her wishing to punish for a crime of non-violation of will, the victim's true intent should be expressed in a way that is clear and reliable (see Supreme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 contents of the subject case, the age of the victim, the actual subject and contents of the agreement, the circumstances before and after the agreement, the legal representative and the attitude of the victim, etc.
Pursuant to the above legal principle, the victim's legal representative's statement on November 4, 2008, which is the day following the occurrence of the case, expressed his/her intention not to be punished against the defendant to the first instance court on February 12, 2009, prior to the pronouncement of the first instance judgment, after filing a complaint against the defendant as the victim of rape. This case was wholly amended by Act No. 9765, Jun. 9, 2009; hereinafter referred to as the "former Juvenile Protection Act"), which is a sex offense against the juvenile under Article 7 (4) of the former Act on the Protection of Juveniles from Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009; hereinafter referred to as the "former Juvenile Protection Act"), which is a legal representative of the victim, cannot be punished against the victim's express will under Article 16 of the same Act. However, the form of the agreement submitted to the first instance court that the defendant does not want such punishment, including the victim's legal representative, and the victim cannot be punished.
Therefore, the judgment of the court below that dismissed the public prosecution of this case on the ground that the victim’s wish to punish the defendant was withdrawn before the judgment of the court of first instance was pronounced after the prosecution of this case.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Nung-hwan (Presiding Justice)