[1] The time when a complaint filed in an offense subject to victim's complaint may be revoked, or a declaration of wishing to punish is withdrawn (=before the judgment of the court of first instance is rendered), and the other party

[2] In a case where the defendant was prosecuted for impairing Gap's honor and insulting Gap, the case holding that the court below's dismissal of public prosecution erred in the misapprehension of legal principles, on the grounds that although a written agreement stating the purport of revoking all the previous criminal complaints, etc. against the defendant was prepared in the prosecution investigation process of other cases against the defendant after prosecution, it was submitted to the court prior to the pronouncement of the judgment of the court of first instance, or there was no other evidence to deem that Gap revoked the

[1] According to Articles 232(1) and 232(3) of the Criminal Procedure Act, cancellation of complaint and withdrawal of declaration of intent wishing to punish in a crime subject to prosecution subject to prosecution subject to prosecution shall be made only before the judgment of the court of first instance is rendered. Therefore, since a complaint is revoked after the judgment of the court of first instance or a declaration of wishing to punish has been withdrawn after the judgment of the court of first instance, a judgment dismissing prosecution cannot be rendered pursuant to Article 327 subparag. 5 through 6 of the Criminal Procedure Act. Moreover, revocation of declaration of intent wishing to revoke or punish a complaint is a legal act against an investigation agency or a court, so it shall be made with respect to

[2] In a case where the defendant was prosecuted for impairing Gap's honor and insulting Gap, the case holding that the court below dismissed the public prosecution on the ground that there was a violation of the misapprehension of legal principles since the court below dismissed the public prosecution on the ground that there was a legitimate cancellation of complaint and withdrawal of the intention of punishment on the ground that the agreement was prepared after the prosecution of other cases against the defendant, but there was no evidence to deem that the agreement was submitted to the court prior to the pronouncement of the judgment of the court of first instance, and that the above agreement was separate from the case prosecuted when Gap testified in the court of first instance in the court of first instance and stated that the defendant would be punished, and that there was no withdrawal

[1] Articles 232(1) and (3), and 327 subparag. 5 and 6 of the Criminal Procedure Act / [2] Articles 232(1) and (3), 327 subparag. 5 and 6 of the Criminal Procedure Act, Articles 307(1), 311, and 312 of the Criminal Act

Defendant

Defendant and Prosecutor

Seoul Central District Court Decision 2011No2777 Decided November 29, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

According to Article 232(1) and (3) of the Criminal Procedure Act, cancellation of complaint and withdrawal of declaration of intent wishing to punish for a crime of non-prosecution in a crime subject to prosecution subject to prosecution subject to prosecution may be made only before the court of first instance renders a judgment dismissing a public prosecution pursuant to Article 327(5) through (6) of the Criminal Procedure Act, since a complaint is revoked or a declaration of wishing to punish is withdrawn after the court of first instance renders a judgment after the court of first instance renders a judgment. Moreover, revocation of declaration of intent wishing to revoke or punish a complaint is a legal act against an investigation agency or a court, and such withdrawal of declaration of intent wishing to do so must be made

According to the reasoning of the judgment below and the records, the facts charged of this case include the point of defamation and insult against the victim non-indicted. The court below reversed the judgment of the court of first instance on the ground that the non-indicted victim, based on the written agreement made on April 27, 2011 by the victim non-indicted non-indicted (hereinafter “Agreement”) and the testimony at the court of original instance by the non-indicted non-indicted non-indicted, withdrawn his wish to punish the violation of defamation after the prosecution of this case was instituted, and the judgment dismissing the prosecution of defamation and insult among the facts charged of this case on the ground that the complaint against insult was revoked.

However, in light of the above legal principles and records, we cannot accept the above determination by the court below for the following reasons.

On April 27, 2011, the agreement appears to have been drafted in the process of investigating the criminal case against the Defendant, which is a separate case, by the prosecution. Since the agreement states that all civil, criminal, accusation, accusation, and complaint against the Defendant prior to April 27, 2011 are revoked, it may be deemed that the content of withdrawing the wishing to punish the Defendant as to defamation among the facts charged in the instant case and cancelling the accusation as to insult is included.

However, even if the agreement dated April 27, 201 states that the cancellation of complaint and the withdrawal of the intention to punish the charged facts of this case is stipulated in the agreement of April 27, 201, the agreement on April 27, 2011, which was prepared after the prosecution of this case, concerning the case of complaint, shall be submitted to the court of the first instance where the public prosecution of this case is instituted, and it shall be effective as the cancellation of complaint and the withdrawal of the intention to punish

However, no evidence exists to deem that the agreement in this case was submitted to the first instance court prior to the pronouncement of the first instance judgment, and there is no other evidence to deem that the Nonindicted Party revoked the complaint and withdrawn his intention of punishment concerning the facts charged in this case to the first instance court prior to the pronouncement of the first instance judgment. Rather, the Nonindicted Party appeared in the first instance court as a witness and testified to the effect that he wishes to punish the Defendant in this case, which is a separate matter from this case, and that it is a separate matter from this case, and that if the Defendant appeared as a witness in the court of the lower court and the Defendant does not pass any more, the agreement was prepared to the effect that he would take his work if he would appear in the court of the lower court and use his intention to punish the Defendant. Since the Defendant did not change even after the preparation of the agreement, considering that the Nonindicted Party clearly expressed his intent to punish the Defendant in this case, it cannot be said that there was a revocation of the complaint and the withdrawal of his intention to punish him.

Nevertheless, the lower court dismissed this part of the prosecution on the charges of this case by deeming that the withdrawal of complaint and the intention to punish had been made after the prosecution of this case. In so doing, the lower court erred by misapprehending the legal doctrine on cancellation of complaint and withdrawal of wishing to punish in a crime subject to victim’s complaint, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error is with merit.

2. As to the defendant's appeal

The appellate brief submitted by the defendant was not indicated in the grounds of appeal, and the appellate brief was not submitted within the statutory period.

3. Conclusion

Therefore, the part of the judgment of the court below which dismissed the above indictment shall be reversed, and the appeal on the guilty part of the defendant shall not be justified, but since each crime which the court below found the defendant guilty and each crime of which the court below sentenced to dismissal of prosecution against the defendant is concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment below shall also be reversed. Therefore, the whole judgment of the court below shall be reversed and the case shall be remanded to the court below for a new trial

Justices Park Poe-dae (Presiding Justice)