Whether “a crime of intimidation and violation of Article 44-7(1)3” under Article 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. constitutes a crime of non-prosecution (affirmative)

Article 283(3) of the Criminal Act provides, “The crime under Article 283(1) may not be prosecuted against the express will of the victim.” Article 74(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) provides, “The crime under Article 74(1)3 of the Act may not be prosecuted against the victim’s will explicitly manifested.” In other words, the crime of intimidation and the crime of violation of Article 44-7(1)3 of the Information and Communications Network Act constitutes the crime of non-compliance with the intention of the victim.

A declaration of wishing not to withdraw an expression of intent or punish a person wishing to punish in a crime of non-violation of will may be made before the judgment of the court of first instance is rendered (Article 232(1) and (3) of the Criminal Procedure Act). The absence of an expression of intent by a person not subject to punishment falls under a passive litigation condition, which constitutes an ex officio investigation, and thus, the court below should ex officio investigate and determine it, even if the

Article 27 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides for special cases concerning the appointment of attorneys-at-law for the victims of sexual crimes. The victims of sexual crimes may appoint attorneys-at-law to obtain legal assistance in criminal procedures (Paragraph 1). If the victims do not have attorneys-at-law, a public prosecutor may appoint a public defender and protect the rights and interests of the victims in criminal procedures (Paragraph 6). The victims’ attorney-at-law has the comprehensive power of attorney for all procedural acts for which representation of the victims, etc. may be allowed in criminal procedures (Paragraph 5). Accordingly, the victims’ attorney-at-law may withdraw his/her wishing to punish or not wish to punish the victims.

Article 283(1) and (3) of the Criminal Act; Articles 44-7(1)3 and 74(1)3 and (2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; Article 27(1), (5), and (6) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Articles 232(1) and (3), 327 subparag. 6, and 364(2) of the Criminal Procedure Act

Supreme Court Decision 2000Do3172 Decided April 24, 2001 (Gong2001Sang, 1296) Supreme Court Decision 2002Do158 Decided March 15, 2002 (Gong2002Sang, 947)

Defendant

Defendant

Attorney Park Ho-hee

Incheon District Court Decision 2019No197 Decided July 5, 2019

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. Article 283(3) of the Criminal Act provides that “The crime under Article 283(1) shall not be prosecuted against the express will of the victim.” Article 74(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) provides that “The crime under Article 74(1)3 shall not be prosecuted against the victim’s will explicitly manifested.” In other words, the crime of intimidation and the crime of violation of Article 44-7(1)3 of the Information and Communications Network Act constitutes the crime of non-compliance with the intention of the victim.”

Article 232(1) and (3) of the Criminal Procedure Act provides that “A declaration of wish not to punish a person who wishes to punish shall be made prior to the pronouncement of the judgment of the court of first instance” (see, e.g., Supreme Court Decisions 200Do3172, Apr. 24, 2001; 2002Do158, Mar. 15, 2002).”

Article 27 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides for special cases concerning the appointment of attorneys-at-law for the victims of sexual crimes. The victims of sexual crimes may appoint attorneys-at-law to obtain legal assistance in criminal procedures (Paragraph 1). If the victims of sexual crimes do not have attorneys-at-law, the public prosecutor may appoint a public defender to protect the rights and interests of the victims in criminal procedures (Paragraph 6). The victims’ attorney-at-law has the comprehensive power of attorney for all procedural acts for which representation of the victims, etc. may be allowed in criminal procedures (Paragraph 5). Accordingly, the victims’ attorney-at-law may withdraw his/her wishing to punish the Defendant on behalf of the victims or not wish

2. According to the record, the following facts are revealed.

A. On November 1, 2018, the prosecutor appointed the Nonindicted Party as a public defender of the victim pursuant to Article 27(6) of the Sexual Violence Punishment Act. On January 8, 2019, prior to the judgment of the first instance, the victim’s public defender submitted to the court the “written application for revocation of complaint and non-prosecution of punishment,” stating that “the victim agreed with the Defendant, and thus, expressed his/her intent not to have the Defendant punished.”

B. The first instance court found the Defendant guilty of the entire facts charged in the instant case, and sentenced ten months of imprisonment and two years of suspended sentence, etc., and appealed only on the grounds of unfair sentencing by the prosecutor on the grounds of unfair sentencing. The lower court, in accordance with Article 2 of the Addenda to the Act on Welfare of Persons with Disabilities (hereinafter “Revised Act”) amended by Act No. 15904, Dec. 11, 2018, and enforced June 12, 2019, should deliberate and decide on the employment restriction order, which is an incidental disposition, by applying Article 59-3 of the amended Act, on the grounds that the prosecutor’s judgment on the grounds that the lower court should be reversed ex officio, without examining the prosecutor’s argument on unfair sentencing, and sentenced the Defendant guilty of the entire

3. We examine these facts in light of the legal principles as seen earlier.

Since the victim’s public defender submitted before the judgment of the court of first instance states that the victim does not wish to punish the victim, the court below needs to review and determine ex officio whether the victim’s wish to punish the victim has been lawfully withdrawn, and clearly review and determine the passive litigation conditions of the crime of non-prosecution.

Nevertheless, the lower court found the Defendant guilty of all the facts charged in the instant case without examining and determining the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the crime of non-compliance with an intention to act, thereby failing to exhaust all necessary deliberations

4. Of the lower judgment, the part of the lower judgment regarding intimidation and violation of the Information and Communications Network Act should be reversed. Since the lower court rendered a single sentence on the grounds that the part of the lower judgment and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act

The judgment of the court below is reversed without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won (Presiding Justice)