[간통][집23(2)형,22;공1975.9.15.(520) 8590]
The revocation of a complaint against another person after the judgment of the court of first instance has already been pronounced on a person who was a requisite accomplice;
In a case where an offense subject to victim's complaint, such as a crime subject to victim's complaint, can be withdrawn prior to the rendering of a judgment in the first instance, Article 232(1) of the Criminal Procedure Act provides that the revocation of the complaint may be made prior to the rendering of a judgment in the court of first instance, and as a result of the application of the so-called "inseparability principle" and Article 233 of the same Act, where the judgment in the first instance is already rendered to a person who is an indispensable accomplice and the revocation of the complaint cannot affect the revocation of the complaint, the complaint cannot be withdrawn by punishing the other person even
Defendant
Prosecutor
Daejeon District Court Decision 74 High Court Decision 265 delivered on December 26, 1974
We reverse the original judgment.
The case shall be remanded to the Daejeon District Court's official branch court.
The grounds of appeal by the Prosecutor of the Daejeon District Prosecutors' Office are examined.
The lower court dismissed the public prosecution by applying Article 327 subparag. 2 of the Criminal Procedure Act, on the ground that the facts of the public prosecution by the Defendant, who was the husband of Nonindicted Party 1 and the complainant, had already been revoked on 1974, before the prosecution of this case was instituted by Nonindicted Party 2, the complainant, by applying Article 327 subparag. 2 of the Criminal Procedure Act.
However, in a case where an offense subject to prosecution, such as the crime of adultery, can be cancelled prior to the pronouncement of the judgment of the court of first instance, Article 232(1) of the Criminal Procedure Act provides that the revocation of a complaint can be made prior to the pronouncement of the judgment of the court of first instance, and Article 233 of the same Act provides that the principle of the so-called complaint and the revocation thereof applies to one of the necessary co-offenders as a result, where the judgment of the court of first instance has already been sentenced to the court of first instance, and it cannot affect the cancellation of a complaint against the other co-offenders, even if the other co-offenders have yet to be prosecuted or sentenced to the judgment of the court of first instance, and it is reasonable to interpret that the cancellation of a complaint cannot be effective even if the other co-offenders have yet to be prosecuted, and it is obvious that the first co-indicted 1, the upper co-indicted 2, was sentenced to imprisonment with prison labor for more than 10 months before the judgment of the court of first instance.
Therefore, the appeal by the prosecutor is with merit, and the judgment of the court below is reversed, and it is so decided as per Disposition with the assent of all participating judges in order to make a new trial and determination.
Justices Yang Byung-ho (Presiding Justice)