The case holding that the defendant does not constitute "relatives in relation to the victim" under Article 7 (2) and (3) of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. and "relatives in relation to the victim" under paragraph (5) of the same Article in a case where the defendant indecent act by force or quasi-indecent act by force.

In a case where the defendant's shesheshesheshesheshes a so-called sheshesheshesheshes in indecent act by compulsion or quasi-indecent act, the case holding that the defendant's shesheshesheshes only belongs to blood relatives of the spouse of blood relatives, and thus cannot be viewed as in the relationship of affinity, and therefore there is no ground to apply Article 7 (2) and (3) of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc., and further, in light of the principle of no punishment without law, the concept of relatives by marriage or relatives under the Civil Act prepared in preparation for the non-performance of legal procedure in accordance with the provisions of Article 7 (5) of the same Act cannot be expanded, and

Article 7(2), (3), (4), and (5) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof; Articles 767 and 769 of the Civil Act

Supreme Court Decision 95Do2914 delivered on February 23, 1996 (Gong1996Sang, 1179) Supreme Court Decision 99Do5395 delivered on February 8, 2000 (Gong2000Sang, 653)

Defendant

Dried machine;

Attorney Go Jong-hee

All of the prosecutions of this case are dismissed.

1. Summary of the facts charged

The summary of the facts charged of this case is that the non-indicted 1, the mother of the victim (here 14 years of age), reported the marriage with the defendant's mother, and was in the second degree of matrimonial relationship with the victim. Around November 21, 2003, the defendant was in the second degree of matrimonial relationship with the victim. At around 03:30 on November 21, 2003, the defendant's house located in Donam-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu, the victim was released from the victim's right to the victim and her her her her her her spanty, her her her herspanty, and let the victim her her her her her her her by her her her her her by her her her her her her.

2. Determination:

A. Whether the defendant constitutes a "person or person"

Article 7 (2) and (3) of the Sexual Exposure Act limit the scope of the "relative" to the person who is in the relation of relative, and Article 7 (4) of the Sexual Exposure Act defines the scope of the "relative" as the relative within the fourth degree and the relative within the second degree, but there is no separate provision on the concept of the relative, such as blood relatives and relatives by marriage, so the concept of the relative should be determined by the Civil Code as a general law.

However, the Civil Act defines the spouse, blood relatives and relatives as relatives in Article 767, while prescribing in Article 769 that the spouse of blood relatives, blood relatives in the spouse, and the spouse of blood relatives in the Article 769 as affinity relatives, the spouse of blood relatives is excluded from the concept of affinity relatives. Since the victim of this case is only a blood relative of the spouse of blood relatives in the case of the defendant or the victim, it is clear that the defendant cannot be viewed as a relative by marriage with the victim, and therefore there is no room to apply Article 7(2) and (3) of the Sexual Exposure Act to the defendant.

B. Whether the defendant constitutes a "relative in a de facto relationship"

On the other hand, Article 7 (5) of the Sexual Exposure Act provides that the relatives include the relatives who are in de facto marital relationship. The term "relatives" in this context refers to those who are in de facto marital relationship but are not recognized as blood relatives by law due to the non-performance of legal procedure (e.g., the biological father of a child born out of wedlock before recognition), those who are not recognized as a blood relative by law due to the non-performance of legal procedure such as reporting, or those who are not recognized as a blood relative by law due to the non-performance of legal procedure such as reporting, etc. (e.g., the de facto both parts of the two parties or the substance of marriage prescribed by law, but they refer to marriage formed by so-called de facto de facto marital relationship that is not recognized by law due to the absence of a marriage report (see Supreme Court Decisions 95Do2914, Feb. 23, 1996; 9Do5395, Feb. 8, 200).

However, it is clear that there is no such status relationship between the defendant and the victim in this case, and furthermore, a false penal provision should clarify its contents in accordance with the principle of no punishment without the law, and it is not allowed to expand punishment by analogy or expansion interpretation as well as the strict interpretation in its interpretation. As seen above, the concept of relatives by marriage or relatives as provided in the Civil Act pursuant to Article 7 (5) of the Sexual Exposure Act prepared in preparation for the non-performance of legal procedure as seen in the above cannot be expanded. Thus, it cannot be said that the defendant is included in the "relative by the de facto relation" as provided in Article 7 (5) of the Sexual Exposure Act.

C. Whether the indictment procedure of this case is lawful

Therefore, as to the facts charged in this case, only Articles 298 through 299 of the Criminal Act, which are subject to victim's complaint, is possible, and the victim and the legal representative of the victim, who is the person in parental authority, filed a complaint on the above facts charged, and it is apparent that all of the complaint was cancelled on December 18, 2003, which is before the prosecution of this case was instituted (the victim and the non-indicted stated that they wish to punish the defendant again after the cancellation of complaint, but the person who revoked the complaint is not effective as a complaint (Article 232 (2) of the Criminal Procedure Act). The prosecution of this case is invalid in violation of the provisions of Acts and subordinate statutes.

3. Conclusion

Therefore, all of the public prosecutions of this case are dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-chul (Presiding Judge)