[1] Whether a victim’s genuine intent should be expressed in a way that enables a clear and reliable manner in order to recognize that the victim had expressed his/her wish to punish or withdraw his/her wish to punish a crime of no punishment (affirmative)

[2] Whether the victim of the crime of non-compliance with an intention to act on behalf of the suspect, the defendant, etc. can be granted the authority to express his/her intent not to punish him/her (affirmative)

[1] Article 51(1) of the Act on Remedies for Damage from Medical Malpractice and Mediation of Medical Disputes; Article 327 subparag. 6 of the Criminal Procedure Act / [2] Article 51(1) of the Act on Remedies for Damage from Medical Malpractice and Mediation of Medical Disputes; Article 327 subparag. 6 of the Criminal Procedure Act

[1] Supreme Court Decision 2003Do4934 Decided June 25, 2004 Supreme Court Decision 2012Do3166 Decided September 13, 2012 / [2] Supreme Court Decision 2001Do4283 Decided December 14, 2001 (Gong2002Sang, 328) Supreme Court Decision 2007Do11339 Decided February 29, 2008

Defendant 1 and one other

Defendants

Law Firm Han, Attorneys Noh Jin-jin et al.

Seoul Southern District Court Decision 2016No2024 decided May 25, 2017

The part of the judgment of the court below against Defendant 1 concerning the crime of injury by occupational negligence is reversed, and that part of the case is remanded to the Panel Division of Seoul Southern District Court. The remaining appeals by Defendant 1 and the appeal by Defendant 2 are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

(1) The lower court determined that the provision that “If the respondent (victim) voluntarily performs his/her obligations under Article 36(3) of the Act on Remedies for Injuries from Medical Accidents and Mediation of Medical Disputes (hereinafter “Medical Dispute Mediation Act”), the conciliation under Article 36(2) of the Medical Dispute Mediation Act, or the victims whose conciliation protocol was prepared by agreement during the conciliation procedure pursuant to Article 37(2) of the Medical Dispute Mediation Act cannot bring an action against their express intent under Article 51(1) main text of the Medical Dispute Mediation Act, the court below held that the respondent’s criminal punishment is not the case where the respondent (victim) voluntarily performs his/her obligations under Article 51(1) of the Medical Dispute Mediation Act.”

In order to recognize that the victim expressed his/her wish not to punish or withdrawn his/her wishing to punish in a crime of non-violation of intention, the victim’s true intent should be expressed in a way that is obvious and reliable (see Supreme Court Decision 2012Do3166, Sept. 13, 2012).

The lower judgment is justifiable in light of such legal doctrine. In so doing, the lower court did not err by misapprehending the legal doctrine on the expression of intent not to punish the crime of non-compliance.

(2) The court below held that since mediation was concluded pursuant to Article 36(3) of the Medical Dispute Mediation Act between Defendant 1 and the victim non-indicted 1 and the victim non-indicted 2, it did not prosecute Defendant 1 against the clearly expressed intent of the above victims pursuant to the main sentence of Article 51(1) of the Medical Dispute Mediation Act, and that in relation to whether the above victims expressed their intent not to prosecute, Defendant 1 prepared an agreement with the above victims that "each of the above victims shall not be held liable for any civil or criminal liability, and shall be immediately withdrawn in case of a complaint, accusation, or civil lawsuit already filed," although the above victims prepared and executed the above agreement with Defendant 1 to the above victims and Defendant 1, it does not recognize that the above victims expressed their intent not to punish Defendant 1 finally and conclusively.

However, the victim of the crime of non-competence may, on behalf of the suspect or his defense counsel, grant the authority to indicate his intention of non-competence to the investigation agency or the court (see Supreme Court Decisions 2001Do4283, Dec. 14, 2001; 2007Do1339, Feb. 29, 2008).

According to the records, Defendant 1’s defense counsel submitted each of the above agreements to the prosecutor’s office on May 19, 2016 and to the first instance court on September 12, 2016. Examining the legal principles as seen earlier, there is room to deem that the above victims granted the authority to indicate Defendant 1 or his defense counsel in the investigative agency or the first instance court on his/her behalf by preparing and granting each of the above agreements to Defendant 1. Therefore, the lower court should have deliberated on whether the above agreements were conferred or not, and should have determined whether the above victims expressed their intent not to punish.

Nevertheless, the lower court, solely based on its stated reasoning, determined that the said victims cannot be deemed to have expressed their intent not to punish the said victims to an investigation agency or the first instance court, erred by misapprehending the legal doctrine on the expression of intent not to punish a crime of non-compliance with the intent to impose a punishment, thereby

Therefore, there are grounds for reversal in the part of the above victims, and the court below rendered a single punishment on the grounds that the above victims and the remaining victims are concurrent crimes under the former part of Article 37 of the Criminal Act among the charges of causing injury by occupational negligence against Defendant 1. Thus, the part of the above victims and the remaining victims should also be reversed.

(3) Meanwhile, although Defendant 1 appealed to the entire judgment of the court below, Defendant 1 did not state the grounds of objection in the petition of appeal or the appellate brief regarding the remaining guilty portion.

2. As to Defendant 2’s ground of appeal

Since the main text of Article 51(1) of the Medical Dispute Mediation Act does not apply to Defendant 2 and the victims of the instant case on the ground that conciliation under Article 36(3) of the Medical Dispute Mediation Act is concluded, or data on the facts in the conciliation protocol was not submitted under agreement during the conciliation procedure pursuant to Article 37(2) of the Medical Dispute Mediation Act, the main text of Article 51(1) of the Medical Dispute Mediation Act does not apply to Defendant 2, and thus, the argument in the grounds of appeal regarding

On the other hand, Defendant 2 appealed to the entire judgment of the court below, but there is no statement in the petition of appeal or the appellate brief on the remaining guilty part.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by Defendant 1 and the appeal by Defendant 2 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)