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

The grounds of appeal are examined.

1. The non-existence of the expression of intent to punish a person who is not subject to punishment is a passive litigation condition, and thus, even if the party did not assert it on the grounds of appeal, the lower court should ex officio investigate and determine it (see, e.g., Supreme Court Decision 2000Do3172, Apr. 24, 2001). Article 260(3) of the Criminal Act provides that the crime of assault cannot be prosecuted against the clearly expressed will of the victim. Article 232(3) and (1) of the Criminal Procedure Act provides that the withdrawal of the expression of intent to punish may be made before the pronouncement of the first instance judgment in a case where it cannot be prosecuted against the clearly expressed will of the victim.

The Act stipulates.

2. According to the records, on October 24, 2017, prior to the judgment of the first instance court, the Defendant’s defense counsel submitted to the first instance court a written agreement under the name of the victim E, and a certificate of personal seal impression of the victim E, stating the purport that “the victim E shall not be held liable for all the civil and criminal liabilities with respect to the instant case after the offender, and withdraws the accusation.”

3. Examining these facts in light of the legal principles as seen earlier, the victim E withdraws his wish to punish the Defendant prior to the pronouncement of the judgment of the first instance. As such, the lower court should have rendered a judgment dismissing the public prosecution pursuant to Article 327 subparag. 6 of the Criminal Procedure Act with respect to the assault, which is a crime of non-prosecution among the facts charged in the instant case.

Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous in the misapprehension of legal principles as to the withdrawal of desired expression of intent for punishment in a crime of non-compliance.

The ground of appeal pointing this out is with merit.

4. Of the judgment below, the part of the crime of assault should be reversed for the above reasons, and this part is punishable on the ground that the remaining part which the court below found guilty is concurrent with the former part of Article 37 of the Criminal Act.