The judgment of the court below is reversed.

The prosecution of this case is dismissed.

1. The prosecutor's grounds for appeal (misunderstanding of facts and legal principles) are as follows: (a) the victim E, the victim's workplace F, the witness G investigation agency, and the court of original instance, which are consistent with the facts charged in the instant case; (b) the court below rejected the statements and acquitted the defendant; and (c) the court below erred by misunderstanding the facts and misunderstanding of legal principles.

2. Determination

A. On September 13, 2016, the summary of the facts charged in the instant case is that the Defendant, at around 12:10 on September 13, 2016, dusted from the victim E in charge of cleaning the toilet floor from the 1st male toilet at the 3rd male toilet located in Ulsanbuk-gu, Ulsan-gu, Seoul-do.

In response to the removal, the boomed the victim's bath, and assaulted the victim's breath with his hand by breath and then pushed the victim's breath.

B. Determination 1) In the case of the crime of non-violation of punishment against the victim, the absence of the expression of intent to punish the victim is a so-called passive litigation condition that is subject to ex officio investigation. Therefore, the party did not assert it on the ground

The court shall ex officio investigate and determine the same (see Supreme Court Decisions 94Do1818, Oct. 14, 1994; 2000Do3172, Apr. 24, 2001, etc.). In addition, in the case of a crime of non-compacting a victim’s wishes not to be punished, the court declared that the victim expressed his/her wish not to be punished.

In order for recognition, the victim’s genuine intent should be expressed in a way that enables it to be clear and reliable. However, even if such intent is expressed after the victim explicitly expressed one time, it cannot be punishable (see Supreme Court Decision 2008Do10183, Jan. 15, 2009, etc.) by withdrawal of the expression of intent to punish the principal offender since it has no effect (see, e.g., Supreme Court Decision 2008Do10183, Jan. 15, 2009). The facts charged in the instant case are crimes falling under Article 260(1) of the Criminal Act and cannot be prosecuted against the victim’s express intent under Article 260(3) of the Criminal Act.