[임시조치기각결정에대한재항고][공2019하,1343]
Whether a victim may file a complaint against a decision to dismiss ad hoc measures requested by a prosecutor under Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence (negative)
Article 10 of the Rules on Family Protection Review (hereinafter “Rules”) enacted pursuant to delegation of Article 39 of the Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence (hereinafter “the Act”) shall provide that a judge of the family court may decide to dismiss a request for ad hoc measures or a request for ad hoc measures under Article 39 of the Act. Article 49(1) of the Act shall provide that a prosecutor, domestic violence offender, or legal representative or assistant may file a complaint with the collegiate division of the family court, if a decision to take ad hoc measures under Article 8 of the Act has an influence on the decision to take ad hoc measures or misunderstanding of facts, or if such decision is significantly unfair. Meanwhile, the family court to which a home protection case is forwarded may rule to take ad hoc measures under Article 29 of the Act, if deemed necessary for smooth investigation and examination or protection of victims, and the court may decide not to take ad hoc measures under Article 40 of the Act, if such decision has a significant influence on the decision to take ad hoc measures or the legal representative of the court.
In full view of the above provisions of the law and rules, a victim may not file a complaint against a decision to dismiss ad hoc measures requested by a prosecutor. According to this legal doctrine, the court of appeal may reverse the decision to take ad hoc measures at the first instance pursuant to Article 63(3) of the Rules, and the victim may not file a reappeal if it decides to dismiss
Articles 8(1), 29, 37, 39, 40, and 49(1) and (2) of the Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence; Articles 10 and 63(3) of the Family Protection Trial Rules
An offender;
Victim Re-Appellant
Seoul Family Court Order 2018No10 dated March 21, 2018
The reappeal is dismissed.
The grounds of reappeal are examined.
1. Article 10 of the Family Protection Trial Rules (hereinafter “Rules”) enacted pursuant to Article 39 of the Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence (hereinafter “the Act”) shall provide that a family court judge may decide to dismiss a request for ad hoc measures or a request for ad hoc measures with regard to ad hoc measures requested by a prosecutor pursuant to Article 8(1) of the Act. Article 49(1) of the Act shall provide that a prosecutor, domestic violence offender, legal representative, or assistant may file a complaint with the collegiate division of the family court, if a decision to take ad hoc measures under Article 40 of the Act is made through an investigation and examination, or a decision to dismiss ad hoc measures or ad hoc measures is seriously affected by mistake of facts in a decision to take ad hoc measures under Article 8 of the Act, or where such decision is remarkably unfair, a prosecutor, domestic violence offender or his/her legal representative may file a complaint with the collegiate division of the family court.
In full view of the above provisions of the law and the rules, a victim may not file a complaint against a decision to dismiss ad hoc measures requested by a prosecutor. According to this legal doctrine, the court of appeal may reverse the decision to take ad hoc measures at the first instance pursuant to Article 63(3) of the Rules, and the victim may not file a reappeal if it decides to dismiss the
2. In the instant case, the first instance court appealed against the prosecutor’s request for ad hoc measures. The lower court reversed the first instance court’s decision, and the victim’s reappeals the decision dismissing the prosecutor’s request, but the victim cannot make a reappeal as seen earlier. In addition, in light of the records, the lower court’s aforementioned decision is justifiable on the grounds stated in its reasoning.
3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jo Hee-de (Presiding Justice)