Methods and effects of a complainant's expression of intention to revoke complaint;

Articles 239 and 237 of the Criminal Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gong1, 1983Ha, 1383, Counsel for plaintiff-appellant)

Defendant

Prosecutor

Seoul Western District Court Decision 2006No1155 Decided December 26, 2006

The appeal is dismissed.

We examine the grounds of appeal.

The facts charged in violation of the Copyright Act are crimes falling under Article 97-5 of the Copyright Act and can be prosecuted only when the copyright holder, etc. has filed a complaint pursuant to Article 102 of the Copyright Act. According to Article 232 of the Criminal Procedure Act, a complaint may be withdrawn before the judgment of the court of first instance is rendered, but the person who has withdrawn the complaint may not file a new complaint. Meanwhile, the withdrawal of the complaint is sufficient if the complainant expresses his/her intention to seek punishment to an investigation agency or a court in writing or orally pursuant to Articles 239 and 237 of the Criminal Procedure Act. Thus, unless the complainant appears to have expressed his/her intention to revoke the complaint in writing or orally, it shall be deemed that the complaint has been lawfully revoked, and even if the complainant had again expressed his/her intention to revoke the complaint, it shall not be effective (see Supreme Court Decision 83Do1431, Jul. 26, 1983).

According to the reasoning of the judgment below, the court below acknowledged that the non-indicted, based on the employment evidence, responded to the question of "I will not want punishment" of the prosecutor "I would like to punish the suspect." The non-indicted, who is the complainant, stated in the court of first instance after being investigated by the prosecutor, and stated in the court of first instance that the defendant would not be punished because the fact itself would be completely revealed rather than completely punishing the defendant as a religious person, rather than completely punishing the defendant. Even according to the prosecutor's grounds for appeal itself, the non-indicted, who is the complainant, expressed his/her intention to withdraw his/her intention to punish the defendant as to the violation of the Copyright Act, which is a crime subject to victim's complaint, prior to the prosecution of this case, even if there was a genuine intention in the court prior to the prosecution of this case, the withdrawal of his/her declaration of intention to seek punishment in the crime subject to victim's complaint, is not allowed as conditional declaration of intention in the investigation agency or the court. Thus, it is justified in the misapprehension of legal principles as to the above facts charged prior to the cancellation of the indictment.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)