Withdrawal of a complaint after a judgment of the court of first instance is rendered in cases subject to prosecution on complaint.

Article 232 (1) of the Criminal Procedure Act provides that cancellation of a complaint in an offense subject to prosecution on complaint shall be permitted only before the judgment of the court of first instance is rendered, and in case the complaint is revoked after the judgment of the court of first instance, the withdrawal thereof does not have any effect, and thus, a judgment dismissing the public prosecution pursuant to Article 327 (5) of

Articles 232(1) and 327 subparag. 5 of the Criminal Procedure Act

Supreme Court Decision 83Do1399, 83Do263 Decided July 26, 1983

Defendant

Prosecutor

Attorney Lee In-bok

Seoul High Court Decision 84No1933 delivered on October 11, 1984

The part of the judgment below dismissing the public prosecution is reversed, and that part of the case is remanded to the Seoul High Court.

The prosecutor's grounds of appeal are examined.

Article 232(1) of the Criminal Procedure Act provides that cancellation of a complaint in a case subject to victim's complaint, such as rape, can only be made before the judgment of the court of first instance is rendered, and such cancellation is not effective when the complaint is revoked after the judgment of the court of first instance. Thus, it is impossible to render a judgment of dismissal of prosecution pursuant to Article 327 subparag. 5

However, the court below dismissed a public prosecution under the above law on September 11, 1984 on the ground that the facts charged with rape can be sufficiently recognized, and ex officio the above public prosecution was revoked by the complainant.

However, according to the records, it is clear that the cancellation of the above complaint in this case is during the appellate trial after June 8, 1984, which was sentenced by the first instance court, and therefore, it is evident that the cancellation of the above complaint does not constitute a ground for dismissal of prosecution.

Nevertheless, the decision of the court below as above has affected the conclusion of the judgment by misunderstanding the legal principles of revocation of complaint. Therefore, the appeal pointing this out is justified.

Therefore, it is so decided as per Disposition by the assent of all participating judges who decide to reverse and return the dismissed part of the judgment below.

Justices Jeong Jong-tae (Presiding Justice)