Whether cancellation of complaint is effective when the complainant has made a statement that the complainant does not intend to cancel the complaint in the courtroom although the written agreement has been submitted by the complainant.

Inasmuch as the agreement submitted to the court is resolved smoothly between the complainant and the defendant, it is merely stated that no objection should be raised thereafter among the public and criminal matters, and if the complainant appears to have no intention to cancel the complaint after submitting the agreement, the complaint is not cancelled regardless of whether the agreement was prepared by the complainant's free will or not.

Article 232 of the Criminal Procedure Act

Supreme Court Decision 80Do1448 delivered on October 27, 1980, 80Do1448 delivered on October 27, 198 (No. 145 of the Criminal Procedure Act, No. 647 of the court bulletin, No. 1378 of the court bulletin)

Defendant

Busan District Court (79 High Court Decision 639)

A defendant shall be punished by imprisonment with prison labor for not more than ten months in the course of rape.

The summary of the grounds for appeal by the defendant and his defense counsel is as follows: first, the defendant was able to agree with the complainants, and even though the defendant was not raped, the court below found the defendant guilty to have committed rape and affected the judgment; second, the defendant revoked the complaint of this case before the judgment of the court of first instance; second, the court below decided the dismissal of prosecution for rape in this case, but affected the judgment; third, the sentencing of the court below is too unreasonable.

In light of the records, when comprehensively reviewing the evidence duly adopted by the court below based on records, the defendant can be found to have been raped by the court below, and there is no other evidence to deem that the court below erred in the fact-finding. Thus, the above argument of the defendant and the defense counsel is without merit. According to the records, the agreement under the name of the complainant was submitted to the court of first instance on November 8, 1979 by the defendant's defense counsel. However, the above agreement is just a document stating the purport that the complainant and the defendant (the defendant) agree not to raise any objection against all of the facts of the complaint, and it is just a document stating that the complainant agree not to raise any objection against the defendant, and the above agreement was made by coercion in the court of first instance and the court of first instance on November 29, 1980, because the defendant did not intend to cancel the complaint, thereby maintaining the defendant's intent to punish the defendant, regardless of the defendant's desire to do so.

However, according to the records, the court of first instance recognized the defendant guilty of the violation of the Attorney-at-Law Act against the defendant and the crime of rape, and sentenced the defendant to a surcharge of 450,000 won in imprisonment with prison labor, and sentenced the defendant to a judgment dismissing the prosecution on the ground that the latter crime had been revoked before the judgment of the court of first instance was rendered. The defendant waived the appeal against the above judgment and the prosecutor appealed the appeal to the defendant only against the latter crime after the prosecutor's appeal was accepted, and the court of final appeal reversed the original judgment and remanded to the court below. As such, the crime of violation of the Attorney-at-Law Act against the defendant was recognized to be guilty and the punishment of 450,000 won in imprisonment with prison labor and the surcharge of 450,000 won is finalized and remanded to the court of first instance, and only the rape case that was reversed and remanded to the court of first instance after the remand cannot be tried only for the crime of rape, and it cannot be tried and sentenced separately.

Therefore, I will decide again on the case of rape.

Since the criminal facts recognized as a member and the evidence relation are the same as the judgment of the court of first instance, they are cited as it is.

The court below's decision corresponds to Article 297 of the Criminal Act. The defendant is the first instance court's judgment that sentenced punishment of 1 year and 6 months for concurrent crimes of violation of the Attorney-at-Law Act and the crime of rape of this case, which sentenced punishment of 1 year and 6 months of imprisonment to the court prior to remand the appeal, and sentenced 8 months of imprisonment to the crime of violation of the above Attorney-at-Law Act in the first instance court prior to remand the appeal, and the judgment became final and conclusive as part of the judgment was sentenced to 8 months of imprisonment only for the violation of the above Attorney-at-Law Act, in accordance with the principle of prohibition of disadvantageous alteration, the defendant is punished by imprisonment with prison labor for 10 months.

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

Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)