[1] Whether a legal representative's consent is necessary for a juvenile to express his/her intent to not be punished in a crime of non-violation of will under Article 16 of the Act on the Protection of Juveniles against Sexual Abuse (negative)

[2] The case affirming the judgment of the court below which dismissed the prosecution of violation of the Act on the Protection of Juveniles against Sexual Abuse among the facts charged against the Defendants on the ground that even if the victim was aged 14 and 10 months at the time of withdrawal of the wish to punish the Defendants in the court of first instance, if the victim was committed in the state of mental capacity, such withdrawal is valid even without the consent of the legal representative

[1] [Majority Opinion] A litigation capacity under the Criminal Procedure Act refers to the ability of a party to a lawsuit to effectively conduct litigation, namely, the ability of a defendant or a suspect to understand his/her status and interest in his/her lawsuit and to defend accordingly. The principle that there is litigation capacity should be deemed the same in cases where a third party, such as a victim, etc. conducts litigation. Therefore, in cases of a crime of non-violation of intention, a declaration of intent not to punish a victim's defendant or suspect or withdrawal of his/her wish to punish the defendant or suspect, or withdrawal of his/her wish to punish the defendant or suspect, may be performed independently by a victim with mental capacity, and it shall not be deemed that the consent of his/her legal representative is required or that the legal representative shall be represented. Furthermore, unless the Act on the Protection of Juveniles against Sexual Abuse provides for any special provision different from the Criminal Procedure Act, interpretation on crimes of non-violation of intention should be applied even in cases of the Act on the Protection of Juveniles against Sexual Abuse. Therefore, even if a juvenile is deemed to be a crime of no punishment against Article 16 of the Act on the Protection of Juveniles against Sexual Abuse.

[Dissenting Opinion by Justice Kim Young-ran] A legislative and practical assessment is premised on the incomplete mental capacity of a defendant or suspect who is a minor. This is also the same for a third party, such as a victim, etc. to conduct procedural acts. However, even though the degree of difference exists, the victim of a sexual crime subject to juveniles does not reach that of adults, and accordingly, the meaning of a crime committed, intellectual level, developmental level or ability to adapt to society, and the meaning, content, and effect of a declaration of wish not to punish the victim or the withdrawal of a wish to punish the defendant or suspect are also insufficient. Therefore, in order for the victimized juvenile of a sexual crime to express his/her intent not to be punished or withdraw his/her wish to punish the defendant or suspect, the incompleteness of his/her capacity should be supplemented. The victim of a sexual crime under the Act on the Protection of Juveniles from Sexual Abuse to protect juveniles more strongly by increasing the effectiveness of punishment without a victim’s complaint, and the purport of the Act on the Protection of Juveniles from Crimes against the victim’s own legal representative’s own responsibility to protect juveniles, such as the victim’s right of action.

[2] The case affirming the judgment of the court below which dismissed the prosecution of the violation of the Act on the Protection of Juveniles against Sexual Abuse among the facts charged against the Defendants on the ground that, although the victim's wish to punish the Defendants was 14 years and 10 months old at the time of withdrawal in the court of first instance, if the victim's expression of intent was conducted under the mental capacity, such as the meaning of the crime in question, the situation in which the victim was injured, the meaning and effect of the withdrawal of the wish to punish him, etc., sufficiently understand and distinguish the meaning of the crime in question, the legal representative's expression of intent to withdraw is valid even without the consent

[1] Article 16 of the Act on the Protection of Juveniles against Sexual Abuse / [2] Article 16 of the Act on the Protection of Juveniles against Sexual Abuse

[1] Supreme Court Decision 98Do2074 decided Feb. 9, 1999 (Gong1999Sang, 510) Supreme Court Decision 2007Do4962 decided Oct. 11, 2007 (Gong2007Ha, 1790)

Defendant 1 and one other

Defendants and Prosecutor

Attorney Go Sung-hoon

Seoul High Court Decision 2009No861 decided June 19, 2009

All appeals are dismissed.

Each ground of appeal is examined.

1. As to the Prosecutor’s Grounds of Appeal

A. Article 16 of the Act on the Protection of Juveniles from Sexual Abuse (hereinafter “Juvenile Protection Act”) provides for the so-called crime of non-violation of will as to the following crimes committed against a juvenile, notwithstanding Article 306 of the Criminal Act and Article 15 of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof: Provided, That no public prosecution may be instituted against the victim’s express intent: Provided, That a public prosecution shall not be instituted against the victim’s express intention; each of the crimes under Article 7 of the Juvenile Protection Act; the crimes under Articles 297 through 300 of the Criminal Act; the crimes under Articles 302, 303, and 305 of the Criminal Act; the crimes under Article 11(1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims from Sexual Crimes (hereinafter “Sexual Crimes Act”); thereby, Article 7 of the aforementioned Act provides for the victim’s litigation capacity to the court or investigation agency as a condition that the victim should not be punished under the Criminal Procedure Act.

The litigation capacity under the Criminal Procedure Act means the capacity of a party to a lawsuit to effectively conduct litigation, that is, the ability of a defendant or suspect to understand his/her status and interest in his/her lawsuit and to conduct defensive acts accordingly. Article 26 of the Criminal Procedure Act provides that "if a defendant or suspect is unable to do so with respect to a criminal case to which the provisions of Articles 9 through 11 of the Criminal Act apply, his/her legal representative shall act for him/her, and Article 306 (1) provides that "where the defendant is in a state of lack of capacity to distinguish objects or make decisions, the court shall suspend the trial during the continuance of such state by its ruling after hearing the opinions of the prosecutor and his/her defense counsel." This is because the litigation capacity under the Civil Procedure Act is 100 or 400 (Articles 51 and 55 of the Civil Procedure Act). The same applies to those who have capacity to file a complaint, 90 or 400 (see Supreme Court Decision 90 Supreme Court Decision, supra. 209Da3974, supra.

Therefore, the victim’s expression of intent not to punish the defendant or suspect or withdrawal of his wishing to punish the defendant or suspect in the crime of non-violation of will can be done independently by the victim with mental capacity in accordance with the general principles of litigation capacity in the criminal procedure as above, and it does not require the consent of the legal representative or representation by his/her legal representative. Furthermore, unless the Act on the Protection of Juveniles from Sexual Abuse provides for any special provision different from the Criminal Procedure Act, the interpretation on the crime of non-violation of will should be applied as it is in the case of the Act on the Protection of Juveniles from Sexual Abuse.

On the contrary, if the expression of intent that the victim does not wish to punish or withdraw the wishing to punish the defendant or suspect despite the victim's ability to do so is deemed to require the consent of his/her legal representative, this would be unfair by newly establishing the authority to decide whether to punish the defendant or suspect and granting his/her legal representative the right to do so without express grounds, and it would go beyond the interpretation of the Criminal Procedure Act or the Juvenile Sex Protection Act. In addition, the expression of intent not to punish the defendant or suspect or withdrawal of the wishing to punish the defendant or suspect constitutes the so-called passive litigation condition, and the principle of prohibition of analogical interpretation, which is derived from the principle of the principle of the principle of the principle of the principle of the law of the law of the law of the law of the law, applies to the litigation condition. However, deeming that the consent of the legal representative is necessary without express grounds is limited by analogical interpretation to limit the requirements of the passive litigation condition and expanding the scope of the possibility

Therefore, even if a crime of non-compliance with the intent to punish a juvenile under Article 16 of the Act on Protection of Juveniles from Sexual Abuse, as long as a juvenile who is the victim has the ability to punish the defendant or suspect alone, he/she may independently express his/her wish not to punish the defendant or suspect or withdraw his/her wish to punish him/her, and it does not require the consent of his/her legal representative. Provided, That the victim’s ability to punish a juvenile refers to the ability to understand and identify the meaning of the crime in light of his/her age, intelligence, intellectual level, developmental well-being and social adaptation ability, etc., the meaning, content, and effect of the crime in question, and the expression of wish to punish him/her must be understood and identified without any defect. Thus, the court must carefully and carefully investigate and determine whether a juvenile who is the victim has the ability to express his/her intent and whether such expression is true or not.

B. According to the reasoning of the judgment below, in applying Article 16 of the Juvenile Sex Protection Act, the court below presumed that the withdrawal of the legal representative's wish to punish juveniles who are victims of mental capacity does not require the consent in applying Article 16 of the same Act. In light of the facts acknowledged by the adopted evidence, the court below dismissed the prosecution against the Defendants of violation of the Juvenile Sex Protection Act among the charges of this case by determining that the expression of intent is valid even without the legal representative's consent, since the victim could sufficiently understand and distinguish the meaning of the crime of this case and the circumstances that the victim suffered damage and the meaning and effect of the withdrawal of the wish to punish him/her, even if he/she was the age of 14 years and 10 months.

In light of the above legal principles, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the litigation capacity of a victim who is a juvenile in the crime of no punishment against a victim.

2. As to the Defendants’ grounds of appeal

The Defendants’ assertion in the grounds of appeal is that the lower court’s fact-finding was erroneous; however, in this case where it cannot be found that the lower court’s determination on evidence exceeded the bounds of the principle of free evaluation of evidence even after comparing the lower judgment with the record, the above assertion merely criticizes the adoption of evidence and fact-finding which belong to the exclusive authority of the lower

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim Young-ran as to the prosecutor’s grounds of appeal, and a concurrence with the majority opinion by Justice Kim Nung-hwan.

4. Dissenting Opinion by Justice Kim Young-ran

A. The Majority Opinion states that in the case of a crime of non-violation of will under Article 7 of the Act on the Protection of Juveniles from Sexual Abuse, where the victim is a minor but is recognized as having mental capacity in accordance with the general principles regarding litigation capacity under the Criminal Procedure Act, the victim may independently express his/her intent not to punish the defendant or suspect or withdraw his/her previous wish to punish him/her, and it does not require the consent of the legal representative or the legal representative

However, with respect to sexual crimes against juveniles, such as crimes under Article 7 of the Act on Protection of Juveniles from Sexual Abuse, if a juvenile who is the victim expresses his/her intention not to punish him/her or withdraws his/her wish to punish him/her, it is reasonable to allow his/her legal representative to participate in such crimes by obtaining the consent of his/her legal representative. The reasons for deeming

(b) The capacity of juveniles who are victims under the Juvenile Protection Act;

(1) As pointed out in the Majority Opinion, the expression of intent not to punish the accused or suspect who is the victim or the withdrawal of his wish to punish shall have the victim's litigation capacity as a litigation act, and such litigation capacity shall be constituted in accordance with the independent principle of the criminal procedure based on the party's mental ability to conduct the litigation act. In addition, in the criminal procedure, the Majority Opinion argues that "the litigation capacity of the accused or suspect is "the ability of the accused or suspect to understand his/her status and interest in the criminal procedure and to conduct defensive acts accordingly," and that "the ability to file a complaint is "the de facto ability to understand the damage and recognize the social interest in the criminal procedure according to the case," but the ability of the juvenile who is the victim is "the ability of the victim" is "the ability to understand the meaning of the crime, circumstances where the victim does not wish to punish, or the meaning, content and effect of his/her wish not to punish, or the withdrawal of his/her wish to punish," and explains the meaning, content and effect differently.

(2) Except in exceptional cases that are exclusively beneficial to a minor, our legal order prevents a minor from performing a legally meaningful act solely by himself/herself. The premise of our legal order is that it is a human being as a creative and mature individual with self-determination right, and that self-determination is realized only when it is possible to freely decide his/her own will with the clear awareness of what kind of legal effect without any pressure. A minor has the right to decide on his/her own work, but allowing a minor to independently exercise a legally dispositive effect against an incomplete minor is not a genuine protection for the right to self-determination of the minor.

Specifically, the legal capacity of a minor under the Civil Procedure Act is limited, and a minor can not conduct litigation in principle by his/her legal representative (Article 5). The act of a criminal minor under the Criminal Act is not punishable (Article 9). When a defendant or a suspect has no capacity to do so with respect to a criminal case subject to Article 9 of the Criminal Act, etc. under the Criminal Procedure Act, his/her legal representative has made him/her act on behalf of a minor (Article 26). If a defendant is a minor, a court has made him/her appoint a defense counsel ex officio (Article 33(1)2). The legal representative of the defendant may file an appeal on behalf of the defendant (Article 340). When the defendant waives or withdraws an appeal, he/she has the legal representative obtain the consent of his/her legal representative (Article 350). Article 424 subparag. 3) provides the legal representative of the person who has been pronounced guilty with the right to request a retrial as well (Article 424 subparag. 3).

As can be seen, legislative and practical assessment is premised on the incomplete mental capacity of a defendant or suspect who is a minor. This is also the same as the case where a third party, such as a victim, etc., conducts litigation. Accordingly, the Criminal Procedure Act grants the legal representative of the victim the right to file a complaint (Article 225(1)), and where a witness is under 16 years of age, the Criminal Procedure Act provides for examination without having the legal representative of the victim take an oath.

In the crime of non-violation of will, the victim's expression of intention not to punish or withdrawal of wishing to punish the defendant or suspect is effective without waiting the court's decision in the criminal procedure, as a legal act which determines whether to punish the defendant or suspect. In order for the victim to effectively express his/her wish not to punish the defendant or suspect, or withdraw his/her wish to punish the defendant or suspect, the victim must have full mental capacity. In other words, the victim's full mental capacity should be premised on the victim's full mental capacity to "it is possible to understand and understand the meaning of the crime, circumstances where the crime is damaged, the expression of wish not to punish the defendant or suspect, or the meaning, content, and effect of the withdrawal of wish to punish the defendant or suspect." In the case of the sexual crime as seen in this case, the above procedural acts have an important meaning as a self-decision with respect to the defendant or suspect, and in view of the fact that the defendant or suspect's wish to punish the defendant or suspect's point of view, the above request should be made.

However, the victim of a sexual crime against a juvenile may have differences in the degree, but intelligence, intellectual level, developmental level, or ability to adapt to society does not reach that of adults. Accordingly, the meaning of the crime committed to him/her, the circumstances damaged, the meaning, content, and effect of an expression of wish not to punish, or the meaning, content, and effect of an expression of desire to punish, shall be deemed to be lacking just in the capacity of understanding and recognizing the same. As the majority opinion well explains, the ability to file a complaint is premised on “de facto capacity” but the expression of desire not to punish or withdraw the expression of desire to punish is a disposal juristic act unfavorable to juveniles, and it is a matter to be determined “in light of its age, intelligence, intellectual level, developmental level, ability to adapt to society, etc.,” and therefore, it cannot be viewed as having the ability to file a complaint if it has a de

(3) The occurrence of physical and mental damage to a victimized juvenile of a sexual crime, such as the instant case, is likely to occur. As such, it may be anticipated that the victimized juvenile and the accused or the suspect agree on compensation for damage in addition to the criminal agreement. In civil legal relations, even if the victimized juvenile independently agrees with the victimized juvenile because of the limitation of capacity to act, it may be cancelled on the ground that the victimized juvenile did not consent by his/her legal representative. If the victimized juvenile’s legal representative is unable to accept the so-called civil or criminal agreement with the accused or the suspect, and the victimized juvenile so that he/she seeks criminal punishment against the accused or the suspect differently from the victimized juvenile, the criminal litigation act committed by the victimized juvenile with the litigation capacity becomes effective if it is followed by the Majority Opinion. Accordingly, there is confusion that the injured juvenile’s legal representative has different legal relations. On the contrary, even though the victimized juvenile committed a criminal act with the accused or the suspect, the damage caused by this confusion is strongly demanded without accepting such result, and the injured juvenile’s legal representative return to the accused or the suspect to the criminal procedure.

Under our legal system, the second damage is also likely to occur due to unfair abduction, intimidation, etc. in relation to the defendant or the suspect if the injured juvenile who is presumed to be incomplete mental capacity alone expresses his/her wish not to punish him/her or withdraws his/her intention to punish him/her.

(4) Therefore, when a juvenile injured by a sexual crime expresses his/her wish not to punish the defendant or the suspect or withdraws his/her wish to punish, the incompleteness of his/her capacity should be supplemented. As to the waiver or withdrawal of an appeal by the defendant who has his/her legal representative, it is necessary to obtain the consent of his/her legal representative (Article 350(1) of the Criminal Procedure Act), such as where the defendant who has his/her legal representative must obtain the consent of his/her legal representative (Article 350(1) of the Criminal Procedure Act).

C. Necessity of protecting sexual crimes and juveniles

(1) The State’s duty to protect the life and body of the people is derived from the content of Article 10 of the Constitution that provides for the State’s duty to guarantee human dignity and value, the right to pursue happiness, and the fundamental human rights of infinites; Article 37(1) of the Constitution that prohibits citizens from warning, and Article 30 of the Constitution that provides for the State’s right to demand rescue from crime victims (see, e.g., Constitutional Court Order 90HunMa110, Jan. 16, 1997). Therefore, the State has the duty to protect the victims of crime whose life and body are damaged; and in particular, the State has the duty to protect the juveniles who need the State’s protection. This duty to protect the victims of crime under Article 27(5) and Article 30 of the Constitution provides for the State’s duty to rescue the victims of crime, and at the same time, Article 34(4) provides that “The State is obliged to implement policies to improve the welfare of juveniles.”

Therefore, the State’s duty to protect juveniles at the physical and mental growth stage is the natural duty of the State, and the State’s duty to protect the juveniles from various crimes is required to protect the juveniles from various crimes. In particular, the State’s duty to eradicate sexual crimes against juveniles is separately required in that sexual crimes against juveniles are likely to sustain not only at the time when they suffered damages but also at the overall part of their lives during their lives after they become the adult. The State’s duty to protect juveniles from the damage of sexual crimes and to protect them as healthy members of society. The State has the duty to perform its duty to protect them from sexual crimes to grow up as healthy members of society.

(2) A sexual crime is in an indivisible relationship with the personality or privacy of an individual, and it is true that our criminal law does not actively intervene therein and leaves the prosecution or punishment to the individual's will. The so-called victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim victim

Therefore, the legislators enacted the Sexual Violence Act to regulate part of sexual crimes which are regulated in the Criminal Act such as the "crime of rape and indecent act". In addition, the above Act newly established the provisions that are irrelevant to the Criminal Act, and also stipulated the exceptional provisions on Article 224 of the Criminal Procedure Act, taking into account the characteristics of sexual crime damage by strengthening the statutory penalty, so that the victims of sexual crimes can file a complaint against their own or their spouse's lineal ascendants, and the period of filing a complaint also stipulated protection provisions such as extending the period of filing

The purpose of this change is to protect juveniles from sexual crimes and to make them grow into healthy members of society by providing special cases concerning punishment of and procedures for sexual crimes against juveniles and providing remedies and support for victimized juveniles. Article 3 of the former Juvenile Sex Protection Act, enacted by Act No. 6261, Feb. 3, 200, aims to preferentially consider the rights and interests of juveniles in interpreting and applying Article 10. In addition, Article 10 of the same Act provides for special provisions that punish juveniles against sexual assault and indecent act by force (hereinafter “Rape, etc.”) more aggravated punishment than that of rape under the Criminal Act. However, Article 301 of the former Juvenile Sex Protection Act still does not provide for explicit provisions as to whether rape, etc. against juveniles constitutes a crime subject to victim’s complaint.

Based on this premise, the former Act on the Protection of Juveniles (amended by Act No. 7801 of Dec. 29, 2005) newly established Article 10-2 that the filing period of a complaint shall be two years from the date on which the offender becomes aware of, notwithstanding Article 230(1) of the Criminal Procedure Act. Thereafter, the current Act amended by Act No. 8634 of Aug. 3, 2007 maintains the previous penal provision on rape, etc. against juveniles under Article 7, while Article 16 maintains Article 7 of the Act, Articles 297 through 30 of the Act, and Articles 302, 305 of the Criminal Act, and Article 11(1) of the Sexual Violence Act, and Article 302, 303, and 305 of the same Act, and Article 11(1) of the same Act provide that the victim's complaint may not be brought against the will of the victim.

(3) The crime of non-violation of will is a system in which the State sufficiently compensates for damage to a relatively minor crime and the victim does not want the punishment, and the State does not impose criminal sanctions, and the resolution of disputes is made on an individual basis between the parties. The crime of assault or intimidation under the Criminal Act is typically applicable to the crime of assault or intimidation under the Juvenile Sex Protection Act. However, the reason why sexual crimes against juveniles are defined as the crime of non-violation of will in general within the above general sense is different from the reason why the crime of non-violation of will is recognized, and its contents are different. The purpose of the Act on the Protection of Juveniles from Sexual Abuse is to ensure that the State can easily exercise the penal power without the involvement of the victim or his/her legal representative, and this was an inevitable option to strengthen the protection of juveniles. Accordingly, the purpose of the Act on the Protection of Juveniles from Sexual Abuse is to protect juveniles more strongly by enhancing the effectiveness of punishment without the victim's complaint and to protect juveniles more strongly by taking charge of the victim's legal representative's guardian's intent.

(4) A sexual crime, such as rape, against a minor under the age of 13, is subject to aggravated punishment in Article 8-2 of the Sexual Violence Act, and Article 15 of the same Act explicitly states that such sexual crime is not an offense subject to a victim’s complaint. As such, sexual crimes subject to a juvenile under the Juvenile Sex Protection Act, which are subject to a crime subject to a victim’s non-guilty punishment, are subject to juveniles aged between 13 and under the age of 19. If a victimized juvenile is distributed as such, his/her ability to express his/her intent to punish him/her according to the age may vary depending on the age. In particular, it is apparent that a juvenile under the age of 13 who is near the age of 13, is able to express his/her desire to punish him/her in a court or other place. This is clear in our legal system that does not punish him/her. Nevertheless, it is uniformly required by the Criminal Procedure Act, which does not explicitly stipulate that his/her legal representative is involved in a crime subject to a victim’s complaint.

On the other hand, our Constitution declares the principle of equality in Article 11. The principle of equality in Article 11(1) of the Constitution does not mean any absolute equality that denies all discriminatory treatment, but means relative equality that no reasonable ground exists in the application of legislation and law. Such principle of equality prevents legislators from arbitrarily treating the same in essence differently from that of the same person. Therefore, the system for protecting juveniles should be treated as the same weight without distinction whether a juvenile is a criminal offender or a victim or a criminal matter, or in civil matters.

The Criminal Procedure Act has several systems in order to prevent the offender from suffering any disadvantage in criminal proceedings, and the provision of assistance to legal representatives, etc. as well as necessary attorney-at-law is intended to block in advance the disadvantages that may arise due to the incompleteness of the doctor. This is due to the spirit that our legal order, including the Constitution, is particularly protecting minors who are physically and mentally weak.

In order to prevent the abuse of the State’s penal authority so as to ensure the fair exercise of the penal authority, the aforementioned consideration or civil procedure supplement system should be equally applied to the case where the victim of a sexual crime is a minor. However, even though it is essentially the same in that it is a minor in need of protection, it would be a discrimination without any reasonable reason and thus infringe the right to equality under the Constitution.

In general, when it is possible to interpret a variety of laws, it should be interpreted in accordance with the Constitution in principle. Considering that the basic principles of our legal order and order against minors, the State’s duty to protect fundamental rights, and the fact that the victims of sexual crimes should be equally protected with the accused or the suspect, it is no longer necessary to make a constitutional interpretation so that the victims of sexual crimes can engage in a disposal juristic act with the assistance of legal representatives, etc.

D. The relationship with the principle of no punishment without law

(1) A penal provision shall be strictly interpreted and applied in accordance with the language and text, and it shall not be interpreted in a manner unfavorable to the defendant without permission, but a teleological interpretation in light of the legislative intent, purpose, legislative history, etc. of the law shall not be excluded unless it goes beyond the ordinary meaning of the text and text of the law (see, e.g., Supreme Court Decisions 2005Do6525, May 12, 2006; 2007Do2162, Jun. 14, 2007). On the other hand, an analogical interpretation is generally explained that it creates new prohibition or order norms which are not stipulated by the law by expanding individual legal provisions, and thus, it refers to the creation of new prohibition or order norms which are not stipulated by the law, and it is generally explained that the interpretation

A sexual crime against a juvenile is an offense of non-competence and is illegal as it is an element of a crime, and thus, the punishment is planned as a matter of course in the event there is no litigation such as the original expression of intent not to punish or the withdrawal of a wish to punish the victimized juvenile. The meaning of the legal representative of the victimized juvenile's procedural acts is to allow the completion of litigation capacity of the victimized juvenile, and it does not extend the scope of punishment against the defendant or the suspect by granting a new authority to decide on criminal punishment against the defendant or the suspect or by strengthening the requirement of passive litigation condition, and thus, it does not constitute an interpretation contrary to the principle of prohibition of analogical interpretation, which is the derived principle of the principle

(2) As seen earlier, the Korean Criminal Act or the Criminal Procedure Act provides for cases where a defendant is a criminal minor, a person with mental or physical disorder, etc., but there is no specific provision regarding cases where a victim is a criminal minor or a person with mental or physical disorder. However, even according to the Majority Opinion, if the victimized juvenile’s ability to discern things or make decisions is found incomplete, the act of the victimized juvenile shall not be deemed effective. If the victimized juvenile’s procedural act is recognized as valid by supplementing such incomplete mental capacity by means of obtaining the consent of his/her legal representative in relation to the act of the victimized juvenile’s procedural act, such as obtaining the consent of his/her legal representative, the accused or the suspect may not be subject to criminal punishment. In light of this, it cannot be said that the act of the victimized juvenile’s legal representative’s consent, such as the expression of intent not to punish the victimized juvenile or the withdrawal of his/her wish to punish,

E. In the instant case:

Even according to the reasoning of the judgment of the court below, the victim (the age of 14) did not obtain the consent of his legal representative as to the withdrawal of the wishing to punish the defendants in the court of first instance. Nevertheless, the court below dismissed the public prosecution of this case on the ground that the victim's wish to punish the above defendants had been effectively withdrawn, which erred by misapprehending the legal principles as to the capacity to stand the injured juveniles in the victim's express intent under Article 16 of the Juvenile Sex Protection Act.

For the same reason, the judgment of the court below must be reversed.

5. Concurrence with Justice Kim Nung-hwan

A. Interpretation of penal laws and regulations shall be strict and excessively expanded or analogically interpreted in the direction unfavorable to the defendant is not permitted as they are contrary to the principle of no punishment without the law (see, e.g., Supreme Court Decision 92Do3126, Feb. 23, 1993). There is no provision in the Juvenile Sex Protection Act as well as in the Criminal Act or in the Criminal Procedure Act that specifically limits the validity of expression of intent of the victim about the punishment or obtain the consent of his/her legal representative on the expression of intent. It is a principle that a litigation capacity exists in criminal proceedings. Therefore, it is deemed that the victim has a litigation capacity to express his/her wish to punish the crimes of no punishment against the victim with mental capacity. As such, it is a matter of whether the victim has a litigation capacity under the Criminal Procedure Act, that is, whether the victim has a litigation capacity, and whether it is incomplete or not, whether the victim has a desire to be punished or not, and the majority opinion does not have any other meaning of the victim’s desire to have a social life or not.

B. It is also a matter of legislative policy to decide whether to allow a victim who has the ability to express his/her intent to punish a crime subject to victim's complaint or a crime subject to victim's complaint to punish him/her as a crime subject to victim's complaint. It is also a matter of legislative policy that the Criminal Procedure Act recognizes his/her legal representative's right to file a complaint separate from the victim's right to file a complaint, but does not have any similar provision as to a crime subject to victim's non-prosecution. In this sense, it is questionable whether the Act on Juveniles stipulates a sex crime subject to juvenile as a crime subject to victim's non-rape punishment as a crime subject to victim's complaint, such as assault and intimidation under the Criminal Act. In that sense, it is difficult to see that there is a desirable legal policy as to the provision of a crime subject to victim's crime as a crime subject to victim's complaint as well as the Criminal Procedure Act, regardless of the absence of special provisions such as the Juvenile Sex Protection Act, it is difficult to consider that the legal representative's consent to punish the victim's wishes is strict.

Chief Justice Lee Yong-hoon (Presiding Justice)