[강간치상등][공1975.4.1.(509),8319]
The legitimacy of the judgment of conviction in a case where a written agreement to request a judgment of conviction has been made because the mother of the victim (15) and the father of the defendant have been compensated for losses in relation to the attempted rape subject to prosecution on complaint.
If the mother of the victim (the 15 years old) who attempted rape was compensated for damage between the father of the defendant and the father of the defendant, and the mother of the victim and the victim testified not to punish himself, it shall be deemed to be the withdrawal of the expression of intent that he wishes to punish and thus the dismissal of prosecution shall be dismissed.
Defendant
Attorney Lee In-hee
Seoul High Court Decision 74No689 delivered on October 11, 1974
The original judgment is reversed, and the case is remanded to the Seoul High Court.
Examining the Defendant’s attorney Lee In-hee’s ground of appeal No. 1, it is unfair that the Defendant’s attorney found the Defendant guilty of rape in the case of attempted rape with Nonindicted Party 1 prior to the judgment of the first instance, even though the complaint was already withdrawn.
Therefore, when comparing the parts relating to the original judgment and the theory of lawsuit with each record, this case was presented to the first instance court on June 4 of the same year, which was the day preceding the pronouncement date of the first instance judgment ( June 5, 1974), which was the day before the pronouncement date of the first instance judgment (the date of the first instance judgment), the documents of the title, which was the agreement between the victim non-indicted 1 (the victim non-indicted 1) 2 and the defendant's father, were presented to the first instance court on this case, and the contents of the agreement were compensation for damages, and the above non-indicted 2 testified clearly to confirm the contents of the above agreement as well as the defendant's punishment.
Therefore, in such a case, the court below should have determined that the victim under Article 232 (3) of the Criminal Procedure Act falls under the case where the victim had withdrawn his previous wish to punish the defendant, and should have dismissed the public prosecution against this case or had the victim Nonindicted 1 returned at least to the victim Nonindicted 1 in accordance with Article 327 (6) of the same Act and should have seen whether the female has withdrawn his previous wish to punish the defendant (the actual suspicion is concerned about the necessity of the exchange). Nevertheless, the court below did not understand the agreement between the victim Nonindicted 1 and the 15 who is a minor under the age of 15 and the actual intention of testimony, and punished him on the sole basis of this determination after confirming that it cannot be deemed that Nonindicted 1 withdrawn his previous wish to punish the defendant, and recognizing him as guilty of the attempted rape of the defendant on the ground of this confirmation.
However, the above fact-finding is not an incomplete hearing but a fact-finding in violation of our daily experience rules, and the original judgment based on such illegal fact-finding is not reversed in this point, and it is not reversed. Therefore, it is so decided as per Disposition by the assent of all participating judges to omit the judgment on the remaining grounds of appeal and to re-examine the case.
Justices Lee Young-young (Presiding Justice)