[1] Whether Article 3(1) of the Punishment of Violences, etc. Act applies to cases where an aggravated punishment is made pursuant to Article 3(1) of the Act on the Punishment of Violences, etc. by committing a crime of robbery, carrying a deadly weapon or other dangerous object (affirmative

[2] The case affirming the judgment below dismissing a public prosecution by applying Articles 354 and 328 of the Criminal Act to "violation of the Punishment of Violences, etc. Act" against a victim of kinship with the defendant, which constitutes "a crime of violation of the Punishment of Violences, etc. Act"

[1] According to the provisions of Articles 354 and 328 of the Criminal Act, the crime of extortion between lineal blood relatives, spouse, relatives living together, family members living together, or their spouses shall be exempted from punishment, and the other relatives may institute a public prosecution only upon a complaint. Thus, even where an aggravated punishment is imposed pursuant to Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act by carrying with a deadly weapon or other dangerous object, the nature of the crime of extortion under the Criminal Act remains intact, and there is no express provision that excludes the application of Articles 354 and 328 of the Criminal Act with respect to relatives, etc. under the above Acts which are special Acts. Thus, Article 354 of the Criminal Act also applies to the crime of extortion under Article 3(1) of the Punishment of Violences, etc. Act.

[2] The case affirming the judgment below dismissing a public prosecution pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act on the ground that the "violation of the Punishment of Violences, etc. Act" in relation to the victim who is related to the defendant is deemed as a crime subject to victim's complaint which can be discussed only when the victim's complaint is filed pursuant to Articles 354 and 328 of the Criminal Act, and a written agreement stating an intention not to punish the defendant before the judgment of the court of first instance was submitted.

[1] Articles 2(1)3 and 3(1) of the Punishment of Violences, etc. Act, Articles 328 and 354 of the Criminal Act / [2] Articles 2(1)3 and 3(1) of the Punishment of Violences, etc. Act, Articles 328 and 354 of the Criminal Act, Article 327 subparag. 5 of the Criminal Procedure Act

[1] Supreme Court Decision 89Do582 Decided June 13, 1989 (Gong1989, 1103), Supreme Court Decision 94Do617 Decided May 27, 1994 (Gong1994Ha, 187), Supreme Court Decision 99No1 Decided October 13, 200 (Gong2000Ha, 2363), Supreme Court Decision 2008Do7614 Decided October 23, 2008, Supreme Court Decision 2009Do12627 Decided February 11, 2010 (Gong2010Sang, 604)

Defendant

Prosecutor

Attorney Jeong Jin-hun

Daejeon District Court Decision 2010No609 Decided April 22, 2010

The appeal is dismissed.

We examine the grounds of appeal.

According to the provisions of Articles 354 and 328 of the Criminal Act, a crime of aggression between lineal blood relatives, spouse, relatives living together, family members living together, or their spouse shall be exempted from punishment, and among other relatives, a public prosecution may be instituted only upon a complaint is filed against them. Even where an aggravated punishment is imposed pursuant to Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act by carrying with a deadly weapon or other dangerous object, the nature of the crime of extortion under the Criminal Act is maintained as it is. Since there is no express provision that excludes the application of Articles 354 and 328 of the Criminal Act with respect to the cases of relatives under the above Acts which are special Acts, Article 354 of the Criminal Act applies to the crime of violation of Article 3(1) of the Punishment of Violences, etc. Act (see, e.g., Supreme Court Decision 94Do617, May 27, 1994).

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which rendered a judgment dismissing the prosecution in accordance with Article 327 subparagraph 5 of the Criminal Procedure Act on the ground that the crime of violation of the Punishment of Violences, etc. to the victim who is related to the defendant is an offense subject to victim's complaint under Article 354 and Article 328 of the Criminal Act, which can be prosecuted only upon the victim's complaint under Article 354 and Article 328 of the Criminal Act.

In light of the above legal principles, the above judgment of the court below is just and acceptable.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the application of relative precedent in the violation of the Punishment of Violences, etc. Act.

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

Justices Yang Chang-soo (Presiding Justice)