Methods and effects of a complainant's expression of intention to revoke complaint;

Article 232 of the Criminal Procedure Act

Supreme Court Decision 83Do1431 Decided July 26, 1983 (Gong1983, 1383) Supreme Court Decision 2007Do425 Decided April 13, 2007

Defendant

Defendant and Prosecutor

Attorney Song In-bok

Daejeon High Court Decision 2009No41 Decided July 2, 2009

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

According to Article 232 of the Criminal Procedure Act, a complaint may be withdrawn before the judgment of the court of first instance is pronounced, but no person who has withdrawn a complaint shall file another complaint. On the other hand, the withdrawal of a complaint is sufficient to do so in writing or orally pursuant to Articles 239 and 237 of the Criminal Procedure Act, as the declaration of intention by the person who has the right to file a complaint to the investigation agency or the court that withdraws an offender's intention to seek punishment. Thus, as long as the person who has the right to file a complaint appears to have expressed his/her intent to revoke the complaint in writing or orally, it shall be deemed that the complaint has been lawfully withdrawn, and even if he/she again expressed his/her intention to withdraw the withdrawal of the complaint, it shall be invalid (see Supreme Court Decision 2007Do425, Apr. 13

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the evidence of employment, and judged that the victim non-indicted 1, who is the complainant, submitted a written agreement to the court of first instance with the intention to revoke the complaint against the defendant or not to impose criminal liability against the defendant, although the victim non-indicted 1, who is the complainant, did not explicitly state that the complaint against the defendant is revoked or not charged with the criminal liability against the defendant, the defendant's complaint against the defendant was lawfully revoked. Thus, the defendant's complaint against the defendant is deemed to have been legally revoked. Accordingly, even if the victim was present at the court of first instance on October 30, 2008, and again expressed his/her intent to revoke the above agreement and again state his/her intent to punish the defendant, it is invalid. In light of the above legal principles and records, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to the cancellation of the complaint as alleged in the grounds for appeal.

The Supreme Court decision cited by the prosecutor in the ground of appeal is inappropriate to be invoked in this case, since it differs from this case.

2. As to the grounds of appeal by the defendant and public defender

The court below found the defendant guilty of each of the above facts charged on the ground that the defendant raped the victim non-indicted 2 as stated in the facts charged and stolen the money of the victim non-indicted 2 and non-indicted 1 as stated in the facts charged. The argument in the grounds of appeal disputing this point is merely an error of finding facts belonging to the exclusive right of the court below, which is a fact-finding court, and there is no violation of the rules of evidence as alleged in the court below's fact-finding, even if examining the reasons of the judgment below in light

In addition, according to the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act, only a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. As such, in this case where the defendant was sentenced to imprisonment for a year and six months, the reason that the sentencing of the court below is too unreasonable cannot be a legitimate

On the other hand, the number of days of detention after the defendant's appeal is included in the court under Article 482 of the Criminal Procedure Act. In such a case, the court does not need to sentence the inclusion of the days of detention in the original sentence, and thus, it cannot accept the allegation in the grounds of appeal purporting that the judgment of the court below, which did not include

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)