[1] Whether the absence of an expression of intent to not punish a person subject to punishment in the so-called crime of non-violation of intention constitutes an ex officio investigation (affirmative)

[2] Whether Article 2(4) of the Punishment of Violences, etc. Act applies to a crime under Article 283(1) of the Criminal Act at night (affirmative), and the time limit of expression of intention not to punish a person who committed a crime under Article 283(1) of the Criminal Act (=before the judgment of the first instance court is rendered)

[1] In the so-called crime of non-prosecution of intention, the absence of the expression of intention in the crime of non-violation of intention shall be an ex officio investigation as a passive litigation condition, and even if the party did not assert it as a reason for appeal, the court below shall investigate and determine

[2] According to Article 283(3) of the Criminal Act, a crime under paragraph (1) of the same Article shall not be prosecuted against the express will of the victim. According to Article 2(4) of the Punishment of Violences, etc. Act, which was amended by Act No. 6534 of Dec. 19, 2001 and enforced from the same day, where a crime under paragraph (1) of Article 283 of the Criminal Act was committed at night, it is evident that the previous provisions of the Criminal Act concerning punishment against the victim's will were changed to the effect that the provision of the Criminal Act concerning punishment against the victim's will was applied as it is. Meanwhile, according to Article 232(3) and Article 232(1) of the Criminal Procedure Act, in a case where a crime cannot be prosecuted against the express will of the victim, the declaration of intent to punish or the declaration of intention not to punish the victim's will may be made by the time

[1] Articles 327 subparag. 6 and 364 of the Criminal Procedure Act / [2] Article 283(1) and (3) of the Criminal Act, Article 2(2) and (4) of the Punishment of Violences, etc. Act, Article 232(1) and (3) of the Criminal Procedure Act

[1] Supreme Court Decision 2000Do3172 decided Apr. 24, 2001 (Gong2001Sang, 1296)

Defendant 1 and one other

Defendants

Daegu District Court Decision 2001No3054 Delivered on December 21, 2001

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

1. We examine the Defendants’ grounds of appeal ex officio prior to their judgment.

A. In the so-called crime of non-violation of intention, the absence of an expression of intent in a punishment for the so-called crime of non-violation of intention is a matter of ex officio investigation as a passive litigation condition, and even if a party did not assert it as a reason for appeal, the court below should investigate and determine it ex officio (see Supreme Court Decision 2000Do3172, Apr. 24, 2001

B. According to Article 283(3) of the Criminal Act, the crime under paragraph (1) of the same Article shall not be prosecuted against the express will of the victim. Article 283(4) of the Punishment of Violences, etc. Act amended by Act No. 6534 of Dec. 19, 2001, which entered into force on the same day, clearly states that if the crime under paragraph (1) of Article 283 of the Criminal Act was committed at night, it was changed that the punishment regardless of the victim's intention was applied to the crime under paragraph (3) of the same Article. Meanwhile, according to Article 232(3) and Article 232(1) of the Criminal Procedure Act, the court below should have ruled that the victim's expression of intent to punish is not withdrawn or sentenced to punishment, and that the victim's expression of intent not to prosecute is not clearly known to the victim's intent against the victim's explicit will (see Article 283(3) and (4) of the Criminal Procedure Act No. 94100, Jan. 27, 15).

2. We examine the grounds of appeal as to the remainder of the crime of intimidation as mentioned in the above paragraph (1) and the violation of the Punishment of Violences, etc. Act.

Examining the evidence of the first instance court cited by the court below in light of the records, the remaining facts of each crime shall be fully recognized except for the above intimidation against the defendants and the violation of the Punishment of Violences, etc. Act, and it shall not be deemed that the judgment of the court below erred in the misapprehension of the rules of evidence against the rules of evidence without properly deliberating as otherwise alleged in the ground of appeal.

3. Therefore, among the judgment of the court below, the defendants' charges of intimidation against the victims mentioned in the above paragraph (1) and the charges of violation of the Punishment of Violences, etc. Act are not dismissed, and the part which found the defendants guilty is not reversed. Since the court below sentenced the whole criminal facts of this case to a concurrent crime under the former part of Article 37 of the Criminal Act and sentenced to one punishment, it is entirely reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-hun (Presiding Justice)