The time of cancellation of complaint in cases subject to prosecution on complaint.

If a judgment of the first instance court is made on one of the co-offenders in an offense subject to prosecution on complaint, and the revocation of complaint cannot be effective on the other co-offenders, the complaint may not be revoked due to punishment, even before the other co-offenders have yet to be prosecuted or the judgment of the first instance is rendered, and it may not take effect even if the complaint is revoked.

Article 297 of the Criminal Act, Article 306 of the Criminal Act, Article 232 of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor

Seoul District Court's Northern Branch (80 Gohap181)

We reverse the original judgment.

Defendants shall be punished by imprisonment for two years.

The number of days of detention prior to the original judgment shall be 105 days each included in the above sentence.

However, the execution of the above punishment against the Defendants shall be suspended for three years from the date of the conclusion of the judgment.

The gist of the grounds for appeal by the prosecutor is as follows: on April 17, 1980, the defendants raped the victim non-indicted 3 and 4 in collusion with the non-indicted 1 and 5 on April 20, 1980, and on April 20, 1980, the defendant 2 conspiredd with the non-indicted 1 and 5 on the charge of raped the victim non-indicted 3, the dismissal of the prosecution is sentenced on the ground that the complaint against the defendants was revoked; however, on July 25, 1980, the non-indicted 1, the accomplice of the case, was sentenced to imprisonment for a short term of two years and three years at the North Branch of the Seoul District Court on July 25, 1980, and the above victim non-indicted 3 and 4, etc. were sentenced to the non-indicted 1 who is the accomplice, the judgment of the court below revoked the complaint against the defendants on October 24, 1980, which affected the conclusion of the judgment.

However, according to Article 232 (1) of the Criminal Procedure Act, in the case of the crime subject to victim's complaint, such as the crime of rape, the cancellation of the complaint can be made before the judgment of the court of first instance is rendered, and as a result, the indivisible principle on the complaint and cancellation in the case subject to victim's complaint under Article 233 of the same Act applies to one of the co-offenders in the case subject to victim's complaint, if the judgment of the court of first instance cannot have the effect of cancellation of complaint against the other co-offenders, even if the other co-offenders have yet to be prosecuted or the judgment of the court of first instance is rendered, it cannot be cancelled, and even if the complaint is revoked, it shall not be effective. According to the statement in the copy of the court of first instance in the case of the non-indicted 1, who is the co-offenders submitted to the court of first instance, it is clear that the above co-offenders were sentenced to imprisonment with prison labor for two years or more, and the judgment of the court of first instance is revoked 130 days or more.

Therefore, in such a case, although the cancellation of each complaint by Nonindicted 3 and 4 cannot take effect, it shall be deemed that the court below's cancellation of the complaint is valid, and it shall be dismissed by applying subparagraph 5 of Article 327 of the Criminal Procedure Act, and it shall be erroneous in the misapprehension of legal principles as to the validity of the cancellation of complaint, which affected the conclusion of the judgment.

Therefore, since the public prosecutor's appeal is justified, it is again decided as follows through the pleading in accordance with Article 364 (4) of the Criminal Procedure Act.

1. On April 17, 1980, the Defendants jointly with Non-Indicted 1 and 2, followed up Non-Indicted 1’s view to she was off, she was off, she was off, and she was off, she would have her faceed, she would have she her softened, she would be off, and she would she if she were she, she would have she she out of the front door, and she would have she die. If she became out of her, she would have she die, she would have died well, she would be off, she was off, she was off, she would have she was off, she was off, she would have she was off, she would have she would have she face, she would have she would not she have she face, and would have she have she face, and would have she would not have she face, she would have she would have she face, she would have her own other women.

2. Defendant 2 jointly with Nonindicted 1 and 5 on April 20, 200: around 30 on April 20, 200, Defendant 2 got the victim Nonindicted 3 from the house of Dongdaemun-gu Seoul Metropolitan Government 4 Dong-dong (hereinafter omitted) 15:0 to the house of Nonindicted 1, 4 Dong-dong (hereinafter omitted) in the same 15:0 to the house of the same 15:0, and first requested Defendant 2 to get out of his clothes and to get out of his clothes, but refused to get out of his clothes, the Defendant 2 refused to get out of his clothes, “I, she will die and die his clothes, she was frighted off his clothes, she was frighted off his clothes, she was frighted one time on his part, and she was raped, followed by Nonindicted 5 and Nonindicted 1, 1, in the same order of order.

The facts of the ruling shall:

1. Each statement consistent with the facts stated in the judgment of the court below and the judgment of the court below.

1. Each statement consistent with the facts set forth in the judgment of the court below by Nonindicted 4 and 3 of the witness.

1. Each statement that conforms to the facts indicated in the judgment among the suspect interrogation protocol prepared by the prosecutor and judicial police officer for the Defendants;

1. Each statement made by the prosecutor with respect to Nonindicted 4 and 3, which conforms to the facts indicated in the judgment;

Comprehensively taking account of the foregoing, the certification is sufficient.

The so-called Defendants’ holding corresponds to Articles 297 and 30 of the Criminal Act. Each of the crimes committed by Defendant 2 is concurrent crimes under the former part of Article 37 of the Criminal Act. As such, the crimes committed by Defendant 2 are concurrent crimes under Article 38(1)2 and Article 50 of the Criminal Act. As such, according to Articles 38(1)2 and 50 of the Criminal Act, the concurrent crimes committed by the second crimes are heavy. The Defendants are juveniles, are involved in depth, and the victims are not subject to the punishment, and there are reasons to take into account the circumstances, such as that they are not subject to the punishment, etc., the Defendants shall be punished by imprisonment for two years within the scope of the term of punishment reduced by Article 55(1)3 of the Criminal Act, and one hundred-five days within the period of detention prior to the pronouncement of the original sentence under Article 57 of the Criminal Act shall be included in the above punishment, but the execution of each sentence against the Defendants shall be suspended for three years from the day when the judgment became final under Article 62 of the Criminal Act.

It is so decided as per Disposition for the above reasons.

Judges Kim Young-jin (Presiding Judge)