Whether the provisions of Article 233 of the Criminal Procedure Act, which provide for the principle of non-compliance with the complaint in an offense subject to prosecution on complaint, are applied mutatis mutandis to the crime of

Article 232(1) and (2) of the Criminal Procedure Act provides for the time limit for cancellation of a complaint and prohibition of a stock lawsuit under Article 232(1) and (3) of the same Act provides for the prohibition of a complaint, and Article 233 of the same Act provides for a provision concerning an indivisible provision for cancellation of a complaint and a complaint, it shall not be deemed that Article 233 of the same Act does not provide for a provision concerning an indivisible provision for a crime of non-compliance with an intention, unlike an offense subject to complaint, in cases of expression of wishing to punish or withdrawal of expression of wishing to punish, it shall not be deemed that Article 232(1) and (2) of the same Act does not apply to an indivisible principle to an

Articles 232 and 233 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Criminal Court Decision 92No5251 delivered on May 20, 1993

The part of the judgment of the court below regarding defamation by publication is reversed, and that part of the case is remanded to the Panel Division of the Seoul Criminal Court.

The appeal against the remainder of the prosecutor is dismissed.

We examine the grounds of appeal.

1. According to the records:

A. In this case where the defendant, in collusion with Co-Defendant 1 and 2 of the first instance trial, was prosecuted for impairing the deceased Kim Dong-dong's reputation by openly pointing out false facts, and by pointing out false facts with the intention of slandering the people at the same time, and thereby impairing the reputation of the above Kim Dong-dong, the former assistant officer of the above Kim Dong-dong by pointing out false facts with the intention of slandering the people, the facts of the facts charged are crimes that can be prosecuted only upon complaint. The facts of the facts charged are those that harm the reputation of the deceased Kim Dong-dong, and those that harm the victim's best attitude and the reputation of the South Gyeong-dong-dong-ro cannot be prosecuted against the victim's clearly expressed will. The complainant's wife, Kim Dong-dong-dong, and the best attitude revoked revoked the complaint, and the defendant dismissed the prosecution on the ground that the defendant revoked his wish to punish.

B. The court below ruled that the above complainants had cancelled or attempted to cancel the complaint against the first instance court 1 and the second instance court's order or the second instance court's ruling on the non-existence of complaint against the victim's complaint, and that the principle of non-existence of complaint against the victim's complaint under Article 233 of the Criminal Procedure Act does not apply or apply mutatis mutandis to the crime of defamation by publication which is a crime of non-violation of complaint. However, the court below's ruling on the non-existence of complaint against the second instance court's order or the second instance court's ruling on the non-existence of complaint against the second instance court's ruling on the same effect as "the non-existence of complaint against the victim's complaint" can be cancelled before the first instance court's ruling on the non-existence of complaint against the second instance court's order or the second instance court's ruling on the non-existence of complaint against the victim's complaint against the same effect as "the non-existence of complaint against the victim's complaint against the second instance court's ruling on the non-existence of complaint against the victim's order.

2. Article 232(1) and (2) of the Criminal Procedure Act provides that the provisions of Article 232(1) and (2) concerning the time limit for cancellation of a complaint and the prohibition of filing a complaint shall apply mutatis mutandis with respect to the crime of non-compliance with intent to make a statement to the effect that there is room for discussion as to whether the Criminal Procedure Act does not apply this principle with respect to the crime of non-compliance with intent to make a statement, or whether the legislation is not appropriate.

A. The grounds for recognizing a crime subject to victim's complaint can be deemed to exist in two types. One is that informing the general public of the fact may give disadvantages to the victim by neglecting the victim's wish to punish him/her. In such a case, the victim can be punished only when he/she expresses his/her wish to punish him/her. In addition, in such a case, there is no need to punish him/her by neglecting the victim's intent or appraisal because he/she is relatively minor and mainly commits a crime that infringes on the victim's legal interests. Therefore, in such a case, he/she would not prosecute him/her without any speak from the victim, and then will be discussed if the victim wishes to punish him/her.

On September 18, 1953, when the amendment of the Criminal Act was made to create a new type of crime that was irrelevant to the former Criminal Act, and there is no first of the above reasons, and even though the second type of crime subject to prosecution subject to prosecution is relatively minor and there is no need to punish it, if it is subject to prosecution subject to prosecution subject to prosecution subject to prosecution, it will be prepared that it would be difficult for the victim to function by taking the lead of psychological pressure or exchange after the victim's complaint, and in such a case, it would not be punished only when the victim expresses his/her intention not to punish it explicitly, like other general crimes.

Therefore, the crime subject to victim's complaint and the crime subject to victim's complaint shall be the same as the case where the victim's intention becomes a condition for prosecution. However, the crime subject to victim's complaint shall not be the same as the reason or method under the condition of victim's intention, and it shall be deemed that the crime subject to victim's complaint includes the purpose of promoting and respecting the settlement of disputes between the victim's compensation or between the parties.

B. A crime subject to victim’s complaint is mainly based on the following reasons. As such, the victim’s complaint is likely to be subject to the disclosure of the crime and wishes to punish the offender by reporting the criminal facts to the investigation agency. If the crime subject to victim’s complaint is specified, in principle, it is not necessary to specify the offender or indicate whose identity the offender is the offender. In addition, the principle that the complaint or the revocation of complaint should be applied to the crime subject to victim’s complaint can be seen as connected to the above special nature of the crime subject

However, since the crime of non-compliance with the intention of a victim does not have the first reason, the expression of intent that does not wish to punish shall not necessarily be in compliance with the above indivisible principle. The expression of intent may be made to commit the crime and may be made to the offender, and it is difficult to say that it is in conflict with the purpose of criminal procedure because it is differentiated depending on the victim's intention to punish a minor crime. Thus, it shall be deemed that the case falls under the legislative policy.

C. However, while Article 232(1) and (2) of the Criminal Procedure Act provides for the prohibition of cancellation of a complaint and the prohibition of a stock lawsuit under Article 232(1) and (2), Article 232(3) provides for the prohibition of a revocation of a complaint, and Article 233 provides for an indivisible provision for a crime of non-prosecution of a complaint and cancellation of a complaint, it shall not be deemed that Article 233 does not provide for an indivisible provision for a crime of non-prosecution of a complaint, unless it applies mutatis mutandis to an indivisible provision for a crime of non-prosecution of a complaint, or withdrawal of an expression of intent wishing to punish, unlike an offense subject to prosecution on complaint, that Article does not apply an indivisible principle to the accomplice.

3. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the withdrawal of expression of intent which does not wish to punish a person for a crime of non-performance of will, and there is a ground to point this out.

4. Of the judgment below, the part of defamation of a deceased person subject to victim's complaint is not claimed as the grounds of appeal by a prosecutor.

Therefore, the part of the judgment of the court below as to defamation by publication is reversed and remanded, and the remainder of the judgment below as to defamation is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo (Presiding Justice)