In the crime of non-compliance with the intention of a victim, whether the victim may reverse the previous expression of his/her wish to punish him/her after having initially expressed his/her intention of not to punish him/her (negative)

In light of the fact that the victim’s expression of intent constitutes a passive litigation condition in the crime of non-violation of punishment under Article 232(3) and (2) of the Criminal Procedure Act, the State’s right to justice depends on the individual’s intention for a long period of time, and in light of the provision that prevents it from being affected by the individual’s intention, the withdrawal of the wish to punish under Article 232(3) of the Criminal Procedure Act includes not only the case where the expression of wish to punish is expressed, but also the case where the expression of intent to punish is explicitly and definitely made from the beginning as in the instant case, and thus, it cannot be said that

Article 232(2) and (3) of the Criminal Procedure Act

Supreme Court Decision 82Do2860 Decided February 8, 1983, 82Do2860 (Article 3-2(1)66 of the Act on Special Cases concerning the Settlement of Traffic Accidents, No. 31-6, No. 136, No. 701, No. 548) Decided September 23, 1986, 84Do473 (No. 285-1)

Defendant

Prosecutor

Daejeon District Court Decision (87 High Court Decision 109, 162 (Consolidated))

The prosecutor's appeal is dismissed.

The gist of the grounds for appeal by the prosecutor is that the provisions of Article 232(3) and (2) of the Criminal Procedure Act concerning the withdrawal of the wish to punish a person who wishes to be punished cannot again indicate the wish to punish if the victim withdraws it after having expressed his wish to punish, and it is not effective even in this case. Even though it does not apply to the case where the victim expressed his wish to punish after being exempted from punishment from punishment from the beginning, it is not applicable to the case where the victim expressed his wish to punish a person from the beginning, the court below's order to dismiss the public prosecution by applying the above provisions of the above Act is erroneous and adversely affected the conclusion of the judgment.

Article 232(3) and (2) of the Criminal Procedure Act provides that the victim's expression of intent constitutes a passive litigation condition, and thus, the State's right to justice depends on an individual's own will for a long time. The withdrawal of a wish to punish under Article 232(3) of the same Act includes only the withdrawal after the victim's expression of wish to punish is made, but also the case where the victim's expression of wish not to punish is made from the beginning as in this case. If it is impossible to discuss the crime because the victim's expression of wish to punish is not explicitly because the victim does not ask the victim's expression of wish to punish, it is impossible to again indicate his wish to punish under Article 232(2) of the same Act. According to the statement made by the judicial police officer's statement made by the suspect interrogation of non-indicted 1 (the first examination) of the defendant's statement prepared by the judicial police officer, the part of the decision of the court below that the defendant's wrong dismissal of the defendant did not constitute a punishment of non-indicted 1.

Therefore, the prosecutor's appeal of this case is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Sung-chul (Presiding Judge)