[1] The case holding that "the case where a victim was 15 years of age at the time of committing the crime and was under the protection and supervision of the mother, etc. who could be deemed as the actual perpetrator, constitutes "the case where there is a cause of force majeure which cannot be accused of a complaint" under the proviso of Article 19 (1) of the Act on the Punishment of Sexual Crimes and Protection

[2] Whether it is possible to waive the right to file a complaint before filing a complaint for a crime subject to victim's complaint (negative)

[1] The case holding that in relation to the crime of sexual intercourse with a minor, when the victim had the ability to file a complaint as 15 years of age at the time of the crime and when one year has passed since the crime was committed, the victim was under the protection and supervision of the mother, etc. who could be said to be the actual perpetrator other than the defendant, and the victim constitutes "when there is a cause of force majeure which cannot be accused" under the proviso of Article 19 (1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, the victim's complaint shall be deemed to be a legitimate complaint within the period, counting from the time when the victim escaped from the victim under protection and supervision of the mother, etc. because he/she was no longer abused and escaped to his/her friendship.

[2] The victim's right to file a complaint is a right granted under the Criminal Procedure Act, and the existence of a complaint is valid in the case of a crime subject to victim's complaint, and it is the right under public law. Therefore, it is not possible to take a free disposition except where the law specifically recognizes it in light of the nature of the right. Accordingly, once a complaint can be revoked pursuant to the provisions of the Criminal Procedure Act, it is possible to waive the right to file a complaint,

[1] Article 302 of the Criminal Act, Article 230 of the Criminal Procedure Act, proviso of Article 19(1) of the Act on the Punishment of Sexual Crimes, Protection of Victims Thereof / [2] Articles 223 and 232 of the Criminal Procedure Act

[2] Supreme Court Decision 67Do471 decided May 23, 1967 (No. 15-2, 9)

Defendant

Freeboard Kim

Law Firm Losur, Attorneys Bag-soo

A defendant shall be punished by imprisonment for not less than one year and six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant became aware of Nonindicted 2, who was the mother of Nonindicted Party 1 (V, 15 years old), who was a minor police officer on April 2005, and was engaged in training upon Nonindicted Party 2’s request from Nonindicted Party 2 to create a person with no speed, and upon receiving a request from Nonindicted Party 1, the Defendant was aware that the victim was continuously engaged in life-sustaining and harsh treatment from said Nonindicted Party 2.

1. On May 2005, in 14:00 on the date from May 1, 2005, Dogsan Dogsan Dogdong-gun, Namnamnam-gun, confirmed that there is no person in the surrounding area by causing a sudden desire, compared to the victim’s attempt to do so, the victim’s sexual intercourse once with the minor victim under the influence of suppressing the victim’s resistance by “Immman (Imman (Imar) if Imar Dog Dog-gu Dog-do).”

2. On July 24, 200 on the first day of 2005, the fact that there is no person in the vicinity by causing a sudden desire of the victim rather than by complying with the degree of the victim’s desire at the seasides of the area of the air, the area of the mountain, the area of the mountain, and the area of the mountain, the area of the mountain, the area of the mountain, the area of the area of the mountain, the area of the area of the mountain, the area of the area of the area of the area

3. On October 2005, at around 24:00 on the date of the end of 2005, in the bred-ray valley, it was confirmed that there is no person around the area by causing a sudden desire by the victim, compared to complying with the victim’s attempt to do so. After suppressing the victim’s resistance by means of the above paragraphs (1) and (2), the minor victim had sexual intercourse twice at intervals of about 10 minutes at intervals of the victim by force.

1. Defendant's legal statement;

1. Legal statement of the witness Nonindicted 3

1. The police statement of Nonindicted Party 1

1. Defendant’s photograph;

1. Complaint;

1. Article applicable to criminal facts;

Article 302 of the Criminal Code

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Crimes with Punishment and Aggravated Punishment for Minors Aggravated Punishment on Crimes under paragraph (1) of the Judgment with the most serious Crimes)

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Summary of the assertion

This case is an offense subject to victim's complaint, and the prosecution of this case must be dismissed because there is no legitimate complaint for the following reasons.

A. The victim non-indicted 1, who was 15 years old at the time of committing the instant crime, had the capacity to file a complaint, was already aware of the offender around October 2005, which was the last criminal of the instant case, and thereafter filed a complaint on March 22, 2007, which had the volume of one year and six months elapsed since the victim had already been aware of the offender around October 205, which was the final criminal of the instant case.

B. Since Nonindicted 4, who is the biological mother of the victim, designated the person in parental authority as Nonindicted 4 while divorced, Nonindicted 3 was not a legitimate complainant, and Nonindicted 3’s accusation is unlawful, since it was not a legitimate complainant.

C. Even if not, on October 11, 2007, the Defendant, the legal representative of the victim, delivered KRW 4 million in cash to Nonindicted 4 and Gyeyang-gu Nonindicted 2, a legal representative of the victim, under the pretext of agreement on the instant crime, and agreed not to raise an issue as to the instant crime, and thus, the right to file a complaint has already been extinguished by the complainants.

2. Determination:

(a) Whether the period for filing a complaint expires;

(1) According to Article 19(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, a 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 of 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's victim victim victim victim victim victim victim victim victim victim victim victim victim victim on March 22, 2007.

(2) However, the following facts are acknowledged in full view of the evidence cited earlier and all the materials present at the trial of the instant case.

(A) Nonindicted 4, the victim’s father-child, and Nonindicted 3, the biological mother, were divorced before about 10 years, and Nonindicted 4 became the victim’s parental authority and was living together with the victim. Nonindicted 4 returned to Nonindicted 2 in the business that the victim became the fourth grade of elementary school.

(B) Nonindicted 2, her mother, her mother, had the victim take a bath at any time while saving the victim from time to time with the her aged victim, or her mother and scarf, and had the victim take a bath together with the other her mother, and let the male her quickly fry and talk with the victim's chest, and Nonindicted 4, her father, her mother, silentd the victim 2 with such harsh acts.

(C) As to the circumstances leading up to the Defendant’s instant crime, Nonindicted 2 introduced the Defendant to the effect that Nonindicted 2 would have caused the instant crime by creating the victim as a non-exclusive person, etc., and that “it may be a prompt person to receive the Defendant’s flag, a legal person,” and that the victim left the Defendant and the victim left the first place at the same time in mountain, and the victim did not talk with Nonindicted 4 even though the victim knew Nonindicted 2 of the fact of sexual intercourse with the legal person.

(D) As stated in the facts of the crime in the judgment, the Defendant, who is aware of such circumstances, told the victim that “I would like to listen to Nonindicted 2 if I would like to do so,” and the victim had no choice but to have sexual intercourse with the rest of the Defendant where I would have committed a harsh act of Nonindicted 2.

(E) On March 12, 2007, the victim non-indicted 1 was living in the "Yacheon-gu," and accordingly, it was difficult for the victim non-indicted 2 to have a harsh act from her. Accordingly, the victim 1 escaped from the Yacheon to her natives in the Yanamam. Non-indicted 3, who was living near the victim's friendship, was aware of the victim's cruel act and the crime of this case only by the mother of Non-indicted 3 (the victim's outer money).

(바) 공소외 3은 공소외 4와 이혼한 후는 피해자가 초등학교 4학년 때 피해자를 한 번 본 것 이외에는 시댁에서 만나지 못하게 하여 피해자를 만날 수 없었고, 피해자 역시 생모인 공소외 3이 바람난 여자라는 말을 들으며 성장하여 공소외 3을 찾아갈 생각을 하지 못했다.

(G) In addition, even if Nonindicted 4 died of the victim’s protein after Nonindicted 4 remarriedd with Nonindicted 2, the communication between the victim and the victim’s protein to the extent that it is not possible to see the victim’s protein.

(3) According to the above facts, it is difficult to view that the victim was under the protection of his mother as to the crime of this case, even if his mother was encouraged to commit the crime of this case from the age of 20 years after his parent's divorce, and since the victim was under the protection of his mother, it is difficult to view that the victim was under the protection of his mother, and that the victim would not raise any problem with the crime of this case under the consent of the victim before 20 years after 20 years passed since 3 years passed since 20 years passed since 3 years passed since 3 years passed after 20 years passed after 3 years passed after 2's divorce. The victim was under the supervision of the victim's mother and 4 years after 2 years passed after 3 years passed since 3 years passed after 3 years passed after 20 years passed since 3 years passed after 3 years after 20 years passed after 2's mother were under the protection of her mother's mother's mother's child, and the victim did not know 6 years after 3 years passed after 3 years passed after 2's mother.

B. Whether the right to file a complaint is extinguished

(1) We examine whether the victim’s right to file a complaint has already been extinguished by the agreement that the Defendant paid the agreed amount to Nonindicted 4 and Nonindicted 2 and did not raise an issue regarding the instant crime.

(2) The right to file a false complaint is a right granted under the Criminal Procedure Act to file a complaint in relation to a crime subject to victim's complaint, and the existence of the complaint is valid in the case of a crime subject to victim's complaint, and it is not possible to take a free disposition except where the law specifically recognizes it. Thus, once one of the above complaints is allowed to be withdrawn pursuant to the provisions of the Criminal Procedure Act, it is reasonable that the right to file a complaint cannot be waived prior to filing a complaint because there is no provision on waiver of the right to file a complaint (see Supreme Court Decision 67Do471 delivered on May 23, 1967). This legal principle is expected, even if Non-Indicted 4, who is a legal representative, renounced the right to file a complaint under the above agreement with the defendant before filing a complaint regarding the crime of this case, it is not effective.

(3) Moreover, there is no ground to deem such an agreement to be based on the victim Nonindicted Party 1’s intent.

(4) Therefore, since the above circumstances do not interfere with the victim non-indicted 1 in filing a complaint, the victim non-indicted 1’s right to file a complaint cannot be deemed to have already ceased.

3. Conclusion

Therefore, without considering the legitimacy of Nonindicted 3’s complaint, the victim Nonindicted 1’s complaint is a legitimate complaint within the period of complaint, and the indictment of this case is effective based on it. Thus, the above assertion by the defendant and his defense counsel is rejected.

1. The crime of this case is committed by the Defendant who reached the age of 60, while being aware of the fact that the victim, who is a woman of the age of 15, was suffering from abuse of her father and mother at the time and was in an imminent state, and on the ground that he was asked by his mother who was not aware of her sexual intercourse with the victim, on the ground that she was forced to create her baby and woman at the time and brought the victim back to the mountain and the sea, and sexual intercourse with the victim who did not know her sex, on the ground that she was sexual intercourse with the victim who did not know her sex, on the ground that she was forced to bring the victim back to the mountain and the sea, and there is a great possibility of criticism in light of the Defendant and the victim's age, motive for the crime. The victim's biological mother is bound to leave the divorced father of 3 years to the married father, and the victim was unable to suffer from serious stress due to sexual abuse in 140,000 so far as she cannot be released from the mental and physical harm between the victim and the victim.

2. However, although the defendant all committed the crime of this case, thought that he was guilty of his mistake, synifies his depth, and did not reach an agreement with the victim himself or his mother, he was making efforts to reach an agreement, and on April 22, 2008, he deposited a certain amount of money on April 22, 2008 (5 million won) for the victim with the intent of the crime against the victim and the crime against the victim, without any particular criminal conviction, the defendant did not have any actual criminal conviction, and the defendant did not provide monetary compensation for the bad behavior of the victim's father and mother. Rather, it is extremely flexible that the defendant provided the monetary compensation for the bad behavior of the victim's father and mother. However, it is difficult for the defendant to take into account the circumstances in which he made considerable efforts to reach an agreement, such as paying four million won to the above father and mother who thought on the part of the victim.

3. Other punishment against the defendant shall be determined and sentenced as ordered for the crime of this case, comprehensively taking into account the defendant's age, character and conduct, family environment, motive, means and result of the crime, circumstances after the crime, etc.

Judges Cho Jong-ju (Presiding Judge) (Presiding Judge) Kim Tae-tae