Whether “one year from the date on which he/she becomes aware of the criminal fact” is in accordance with the main sentence of Article 18(1) of the former Act (wholly amended by Act No. 11556, Dec. 18, 2012; or Article 19(1) of the former Act (wholly amended by Act No. 11729, Apr. 5, 2013; hereinafter “Special Act on the Punishment, etc. of Sexual Crimes”), which was committed before the enforcement date of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (affirmative)

The main text of Article 230(1) of the Criminal Procedure Act stipulates that six months have passed from the date on which a person becomes aware of the period for filing a complaint against a crime subject to victim's complaint. Article 306 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; hereinafter "former Criminal Act") stipulates that a crime of indecent act by compulsion under Article 298 of the Criminal Act was committed as an offense subject to victim's complaint. However, Article 306 of the former Criminal Act was deleted through the foregoing amendment, and Article 2 of the Addenda of the amended Criminal Act provides that "the amended provisions of Article 306 of the former Criminal Act shall apply from the crime first committed after the enforcement of the said amendment."

Article 2(1)3 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) provides that “one year from the date on which a person becomes aware of an offender, notwithstanding the provisions of Article 230(1) of the Criminal Procedure Act” in the main text of Article 18(1) of the same Act provides that the period of filing a complaint against a crime subject to victim’s complaint among sexual crimes is “one year from the date on which the person becomes aware of an offender” (hereinafter “special provision”). The Special Provision was completely amended by Act No. 11729, Apr. 5, 2013 (wholly amended by Act No. 11729).

However, since the amended Sexual Violence Punishment Act does not have any transitional provision related to the deletion of the Special Provision, it is problematic whether the Special Provision applies to the period of filing a complaint against a sexual crime subject to victim's complaint committed prior to the enforcement date.

The deletion of Article 306 of the former Criminal Act was aimed at resolving the problem that punishment for sexual crimes caused by a crime subject to victim’s complaint was not reasonable and that secondary damage caused by agreement with victims was caused. As a result of the deletion of Article 306 of the former Criminal Act, the Special Provision was no practical benefit to maintain the Special Provision. Considering the aforementioned developments and purpose of the amendment, it is reasonable to regard the period for filing a sexual crime subject to victim’s complaint, which was committed prior to the enforcement date of the amended Sexual Violence Punishment Act, as “one year from the date on which he/she becomes aware of the offender” in accordance with the Special Provision.

Article 306 of the former Criminal Act (Amended by Act No. 11574, Dec. 18, 2012); Article 298 of the Criminal Act; Article 2 of the Addenda (Amended by Act No. 11574, Dec. 18, 2012); Articles 2(1)3 and 18(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012); Articles 2(1)3 and 19(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11729, Apr. 5, 2013); Article 230(1) of the Criminal Procedure Act

Defendant

Defendant and Prosecutor

Incheon District Court Decision 2014No1194 decided September 26, 2014

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court is justifiable to have convicted the victim Nonindicted 1 of the charge of indecent act by compulsion. In so determining, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the principle of evidence trial

2. As to the Prosecutor’s ground of appeal

A. The main text of Article 230(1) of the Criminal Procedure Act provides that six months from the date on which a person becomes aware of the period for filing a complaint against a crime subject to victim’s complaint. Article 306 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; hereinafter “former Criminal Act”) stipulates that a crime under Article 298 of the Criminal Act was subject to victim’s complaint. However, Article 306 of the former Criminal Act was deleted due to the foregoing amendment, and Article 2 of the Addenda of the amended Criminal Act provides that “The provisions of Article 306 of the former Criminal Act apply from the crime first committed after the enforcement of the said amendment.”

Article 2(1)3 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) provides that “one year from the date on which an offender becomes aware of a crime subject to victim’s complaint, notwithstanding Article 230(1) of the Criminal Procedure Act,” among sexual crimes, Article 18(1) of the same Act provides that the period of filing a complaint against a crime subject to victim’s complaint is “one year from the date on which the offender becomes aware of a crime” (hereinafter “Special Provision”). The Special Provision was wholly amended by Act No. 19(1) and was deleted by Act No. 11729, Apr. 5, 2013 (wholly amended by Act No. 11729, Jun. 19, 2013).

However, since the amended Sexual Violence Punishment Act does not have any transitional provision related to the deletion of the Special Provision, it is problematic whether the Special Provision applies to the period of filing a complaint against a sexual crime subject to victim's complaint, which was committed prior to the enforcement date.

The deletion of Article 306 of the former Criminal Act was aimed at resolving the problem that punishment for sexual crimes caused by a crime subject to victim’s complaint was not reasonable and that secondary damage caused by the agreement with the victim was caused. As a result of the deletion of Article 306 of the former Criminal Act, the Special Provision was no practical benefit to maintain the Special Provision, and the same was deleted under the amended Sexual Violence Punishment Act. Considering the aforementioned developments and purport of the amendment, it is reasonable to deem the period for filing a complaint against a sexual crime subject to victim’s complaint, which was committed prior to the enforcement date of the amended Sexual Violence Punishment Act, to be “one year from the date on which he/she became aware of the criminal”

B. Of the instant facts charged, the lower court: (a) filed a complaint on August 27, 2013, which was six months after the filing period of the complaint under Article 230(1) of the Criminal Procedure Act, on the part of the part of the Defendant Nonindicted 2’s indecent act by force against the victim Nonindicted 2; (b) determined that the indictment procedure was null and void on the ground that the indictment was filed on the ground that it was unlawful accusation; and (c) the prosecution procedure was invalid in violation of the provisions of the Act.

C. However, according to the foregoing legal doctrine, since the crime described in this part of the facts charged was committed before the enforcement date of the Act on the Punishment of Sexual Crimes, the period of the complaint is one year from the date on which the victim Nonindicted 2 became aware that he/she was a criminal according to the Special Provision. Therefore, the complaint filed on August 27, 2013 by the victim Nonindicted 2 was lawful since it was filed before the lapse of one year from the police officer on September 2012.

On the contrary, the lower court’s judgment that the victim Nonindicted 2’s complaint was filed after the expiration of the period for filing a complaint, which is unlawful, erred by misapprehending the legal doctrine on the period for filing a sexual crime subject to victim’s complaint, thereby affecting the conclusion of the judgment.

3. Scope of reversal

The part of the judgment of the court below on indecent act by compulsion against the victim non-indicted 2 should be reversed, and this part of the judgment of the court below should be sentenced to a single punishment on the whole because it is in a concurrent relationship with the part on indecent act by compulsion against the victim non-indicted 1, which the court below found guilty, under the former part of

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)