[1] Whether the absence of an expression of intent to not punish a person subject to punishment in the so-called crime of non-violation of intention constitutes an ex officio investigation (affirmative)

[2] Where the victim submitted a written agreement to the court against the defendant to the court, the case holding that the victim explicitly expresses his/her intention not to punish the defendant

[1] Article 327 subparag. 6 and Article 384 of the Criminal Procedure Act / [2] Article 283(3) of the Criminal Act

[1] Supreme Court Decision 200Do3172 Decided April 24, 2001 (Gong2001Sang, 1296) Supreme Court Decision 2002Do158 Decided March 15, 2002 (Gong2002Sang, 947) Supreme Court Decision 2005Do462 Decided October 28, 2005

Defendant

Defendant

Attorney Kim Sung-jin

Jeju District Court Decision 2007No427 Decided December 13, 2007

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

The defendant and public defender's grounds of appeal are also examined.

In the so-called crime of non-violation of Intention, the absence of an expression of intent in the punishment shall be subject to ex officio investigation as a so-called passive litigation condition. Thus, even if the parties did not assert it as the grounds for appeal, the court below should investigate and determine it ex officio (see Supreme Court Decision 2000Do3172, Apr. 24, 2001, etc.).

It can be seen that the crime of intimidation in the first instance judgment maintained by the judgment of the court below includes each intimidation against the victim. Thus, according to Article 283(3) of the Criminal Act, it is clear that the crime of intimidation is a crime of non-compliance with the intention of the victim, which cannot be prosecuted against the express intention of the victim.

However, according to the records, on October 11, 2007, the above victim submitted to the court of first instance a written agreement stating that "I swear that I would not raise any civil or criminal objection after the conclusion of the agreement because I would have reached a smooth agreement between the victim and the victim," and that "I will submit the written agreement to the court of first instance" stating that "I will forward the remaining one million won from November 2000 to 100,000 won each month," and therefore, the above victim shall be deemed to have explicitly expressed his intention not to punish the defendant by submitting the written agreement (see Supreme Court Decisions 93Do321, Feb. 25, 1994; 2001Do4283, Dec. 14, 2001, etc.).

Nevertheless, the court below did not dismiss a public prosecution against each of the above intimidation, and found the rest of the crime as guilty and the substantial concurrent crimes. Thus, the court below erred by misapprehending the legal principles as to the crime of non-compliance with intent, or by misunderstanding the facts, which affected the conclusion of the judgment, and thus, the whole judgment of the court below cannot be reversed. The ground of appeal on this point has merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal on unreasonable sentencing, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)