(a) Whether a public prosecution against the crime that was decided on a non-suspect violates the principle against double Jeopardy;

(b) Relationship between non-prosecution subject to prosecution on complaint and complaint or cancellation thereof;

A. Since the effect of the prohibition against double Jeopardy occurs at the time of a final and conclusive judgment, it cannot be said that the prosecutor violated the prohibition against double Jeopardy even if the prosecutor made a first decision on the suspicion and again instituted a public prosecution.

B. Unlike in the case of a crime subject to victim's complaint, the complaint is merely a mere proviso to the investigation in the case of a non-indicted subject to victim's complaint. Thus, the complaint can be prosecuted regardless of whether the complaint exists or not, or whether the complaint is withdrawn.

Article 247 of the Criminal Procedure Act, Article 12 of the Constitution, Article 232 of the Criminal Procedure Act

Supreme Court Decision 83Do2686,83Do456 Decided December 27, 1983

Defendant

Defendant

Seoul Criminal Court Decision 87No2151 delivered on August 11, 1987

The appeal is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal:

Since the effect of res judicata occurs at the time of a final and conclusive judgment, it cannot be said that the crime of this case, such as the theory of lawsuit, even if a prosecutor made a first decision on the suspicion of the crime of this case and again instituted a public prosecution, it violates the doctrine of res judicata (see Supreme Court Decision 84Do1545, Nov. 27, 1984).

2. On the second ground for appeal:

Unlike in the case of an offense subject to victim's complaint, a complaint subject to victim's complaint is a mere proviso to investigation, so it is possible to discuss a crime regardless of the existence of a complaint or the cancellation of a complaint. Thus, the circumstances such as the victim's cancellation of a complaint of this case, which is a non-subject to victim's complaint, or the victim's new complaint after the cancellation of the complaint, do not constitute any obstacle in discussing a criminal fraud against the accused. There is no debate over a lawsuit on the premise of the contrary.

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

Justices Man-hee (Presiding Justice)