Effect of complaint filed by a minor in his/her capacity as simple guardian;

In the case of a minor victim, if the victim or his/her father who is his/her legal representative has not filed a complaint and his/her mother has filed a complaint in the capacity of his/her guardian, there is no legitimate complaint.

Articles 223, 225, and 327 of the Criminal Procedure Act

Defendant

Defendant

Seoul Criminal Court of the first instance (75 Gohap390)

The judgment of the court below is reversed.

This case is dismissed.

The gist of the grounds for appeal by the defendant is that the defendant did not commit the same crime as the non-indicted 1, but the court below found the defendant guilty. The judgment of the court below is erroneous in misunderstanding of facts affecting the conclusion of the judgment, and the summary of the grounds for appeal by the defendant's counsel is improper because the judgment of the court below against the defendant is too unreasonable

Before determining the above grounds for appeal, ex officio the Defendant attempted to have sexual intercourse with Nonindicted 1 of the victim of the age of 12 on May 1974, 1974;

(2) commits an indecent act against the above victim of 13 years of age by fraudulent means on May 20, 1975;

(3) On May 26, 1975, the facts constituting the crime of the non-indicted 2, which found that the defendant committed an indecent act against the above victim through fraudulent means, are crimes falling under Articles 305, 300, 297, and 302 of the Criminal Act, and must be discussed only upon a complaint or complaint. Thus, the issue is whether a legitimate complaint has been filed against each of the crimes in this case;

The above victim non-indicted 1 is the victim of this case and can file a complaint, and since he is a minor under the age of 13, his legal representative can file a complaint independently. In full view of the testimony in the contents of the resident registration record card (record 6) bound in the investigation record at the party trial court of the defendant non-indicted 2, the legal representative of the above victim is the father of the Dong and the non-indicted 3, who is a person with parental authority, and even after examining the records of the case, the above victim or his legal representative cannot find the trace of the complaint concerning this case. However, it is recognized only that the mother of the above victim is the guardian of the victim and the non-indicted 3, who is the legal representative of the Dong, filed a complaint with the Yongsan Police Station by referring to the qualification of the victim as the guardian of the victim.

Thus, this case's indictment constitutes a case where a prosecution procedure is null and void in violation of the provisions of law, since the indictment procedure is instituted without a complaint filed by a person with a right to file a complaint, and thus, it should be sentenced to dismissal of prosecution pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act. Even though it does not reach this, the court below's disposition which rendered a judgment of conviction against the defendant without a substantive judgment constitutes a case where there is a violation of law affecting the judgment, and thus, the judgment of the court below

Therefore, the judgment of the court below shall be reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act, and the members shall be decided again after pleading.

The summary of the facts charged is as follows: (1) the Defendant: (a) 14:00 on May 1974, and around 14:00 on the street, Yongsan-gu Seoul, Yongsan-gu, Yongsan-gu, Seoul, had the victim Nonindicted Party 1 (the victim Nonindicted Party 12 years of age, women) who had a usual fluorial ground, and tried to go to the Namsan Park, and (b) his human being fluord to go off panty by attracting the dong in the forest speed of the rare Namsan Park, and tried to go to go off panty and inserting the Defendant's sound into the quality of the dong, but the purpose of this was not achieved; and (c)

(2) On May 20, 1975, around 11:00, Nonindicted Party 1 was able to go with the motion picture screen in the same street and induced his leader to a spandecule and let him view the motion picture screen, and made an indecent act against a minor Dong through a deceptive scheme by inserting his hand in the panty speed of that person while viewing the motion picture.

(3) On May 26, 1975, at around 20:30, Nonindicted Party 1 was induced to the alleyway by deceiving her sporascule, etc. on the street above, and was engaged in indecent conduct against her panty by putting the panty on the ground, leaving the panty, and holding the defendant's sposcule, and committing an indecent act against the her sposty. However, each of the above crimes must be prosecuted only upon the complaint, and there was no legitimate complaint filed by the complainant. Accordingly, as the indictment procedure becomes invalid in violation of the provisions of the law, the dismissal of prosecution shall be dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act.

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

Judges Hong Man Pung (Presiding Judge)