[1] Whether a crime of non-compliance with punishment is subject to strict proof or its validity (negative)

[2] The case affirming the court below's use of each investigation report as evidence to determine the validity of the victims' withdrawal of their wishes to punish the victims, although each investigation report including the contents of telephone conversations with the victims is not admissible as evidence

[3] Whether a juvenile with mental capacity can independently express his/her intent not to punish himself/herself in the case of a crime of a crime of a non-violation of will under Article 16 of the former Act on the Protection of Juveniles against Sexual Abuse (affirmative), the meaning of his/her capacity and the requirements for expression

[4] The case holding that the court below erred in the misapprehension of legal principles or incomplete hearing in holding that the withdrawal of the victim's wish to punish the defendant's witness shall be invalidated on the grounds that the defendant's application for witness is rejected and the written investigation report

[1] Article 307 of the Criminal Procedure Act / [2] Articles 307 and 313 (1) of the Criminal Procedure Act / [3] Article 16 of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 9765 of Jun. 9, 2009) / [4] Articles 7 (1), (2), and (4) (wholly amended by Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765 of Jun. 9, 2009) of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 9765 of Jun. 9, 2009), Articles 16 and 297 and 298 of the Criminal Act, Articles 307 and 232 (3) of the Criminal Procedure Act

[1] [3] Supreme Court Decision 98Do2074 delivered on February 9, 199 (Gong1999Sang, 510) / [1] Supreme Court Decision 99Do947 delivered on May 14, 1999 / [2] Supreme Court Decision 98Do2742 delivered on February 26, 199 (Gong199Sang, 692) Supreme Court Decision 2007Do4105 Delivered on September 20, 2007 / [3] Supreme Court Decision 2007Do4962 Delivered on October 11, 2007 (Gong2007Ha, 1790), Supreme Court en banc Decision 2009Do6058 Delivered on November 19, 2009 (Gong209Do60589 delivered on September 26, 2012)

Defendant

Defendant and the respondent for attachment order

Attorneys Kim Jae-won et al.

Seoul High Court Decision 2010No358, 2010No17 decided April 22, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Part of the defendant's case

Each investigation report of this case constitutes hearsay evidence as a document stating the contents of telephone conversations with the victim non-indicted 1 and 2, who is a witness. However, the prosecutor does not have the signature or seal of the person who made the statement and did not prove the authenticity of the formation by the statement made by the person who made the statement at the preparatory hearing or the trial date, and thus, it is not admissible (see, e.g., Supreme Court Decisions 98Do2742, Feb. 26, 199; 2007Do4105, Sept. 20, 2007).

However, in the crime of non-compliance with an intention to punish a criminal defendant or a criminal suspect, or the facts as to whether the wish to punish the criminal defendant or the criminal suspect has been withdrawn or whether it is valid are not subject to strict proof, but subject to so-called free proof by evidence which is not admissible evidence or evidence which has not gone through evidence examination methods provided in the law (see Supreme Court Decisions 98Do2074 delivered on February 9, 199; 9Do947 delivered on May 14, 199, etc.).

The court below's use of each investigation report of this case without admissibility as evidence to determine the validity of the victims' withdrawal of their wishes to punish them as evidence is just in accordance with the above legal principles, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles

On the other hand, the crime of non-compliance with the intent to punish a juvenile under Article 16 of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 9765 of Jun. 9, 2009), as in other crimes of non-compliance with the intent to punish a juvenile, may independently express his/her wish not to punish the defendant or the suspect or withdraw his/her wish to punish the juvenile so long as the juvenile who is the victim has the capacity to express his/her intent to punish, and does not require the consent of his/her legal representative. However, the victim's ability to express his/her intent refers to the ability to understand, understand, and identify the meaning, circumstances damaged, the expression of desire not to punish the juvenile, or the meaning, content, and effect of his/her wish to punish him/her, and therefore, the court must carefully investigate and determine whether the victim's ability to express his/her intent to punish him/her and whether such expression of intent is true (see Supreme Court en banc Decision 2009Do989, Oct. 6, 19, 2009).

According to the reasoning of the lower judgment and the reasoning of the first instance judgment maintained by the lower court, the victim Nonindicted 2 was raped by the Defendant on December 29, 1998, 14, at the time of 2009, when Nonindicted 1 and Nonindicted 2 wished to be punished by the Defendant on March 25, 1995, and the Defendant’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1 and non-indicted 2’s non-indicted 2’s non-indicted 9’s non-indicted 2’s non-indicted 1 and non-indicted 2’s non-indicted 2’s non-indicted 1 and non-indicted 2’s non-indicted 2’s non-indicted 1 and his non-indicted 2’s non-indicted 2’s non-indicted 1 and the defendant’s non-indicted 2’s non-indicted 1 and the defendant’s non-indicted 2’s non-indicted 2’s non-indicted.

However, we cannot accept the above decision of the court below for the following reasons.

In light of the above victims’ age, intelligence, intellectual level, developmental well-being and social adaptation capabilities, etc., the above victims appears to have been well aware of the meaning or effect of the withdrawal of their wish to punish, and at least it is difficult to deem that there was assault, intimidation, or coercion to the extent that it would make free decision from the defendant's side at the time the agreement of this case and the written application of coal, etc. were made, even if considering the aforementioned circumstances, it is difficult to readily conclude that the withdrawal of the wish to punish the above victims was null and void. Furthermore, where the defendant contests that the withdrawal of the wish to punish is valid by the method of a witness application, etc., the court below should clearly investigate and determine the validity of the withdrawal of the wish to punish through the method of directly questioning the above victims as witnesses, rather than by the written investigation report prepared by the prosecutor.

Nevertheless, the court below rejected the defendant's application for witness without taking such measures and judged that the withdrawal of the defendant's wish to punish the above victims was null and void based on the statement of each investigation report of this case. The court below erred in the misapprehension of legal principles as to the effect of withdrawal of the wish to punish the victims or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out

2. Part of the attachment order case

Article 9(6) of the Act on the Electronic Monitoring of Specific Sexual Offenders provides that when an appeal is filed against the judgment on the accused case of a sexual crime, the judgment on the attachment order case shall also be deemed to have been filed. Article 9(2)2 of the same Act provides that the request for the attachment order shall be dismissed by the judgment when the accused case is acquitted, acquitted, or dismissed. Thus, the illegality of the part at issue in the above Article 9(1) of the Defendant case shall also apply to the facts constituting the cause of the attachment order case.

3. Conclusion

Therefore, among the defendant's case against the defendant against the defendant in the judgment of the court below, the part of the judgment below as to the defendant's non-indicted 2's each rape in the winter of 2008 and spring of 2009 and each indecent act by force on August 2009 against the victim non-indicted 1 should be reversed. Since this part of the judgment of the court below is sentenced to a concurrent crime against the defendant in the remaining crimes against the defendant and the former part of Article 37 of the Criminal Code, it shall be reversed in its entirety and the part of the attachment order case against the defendant must be reversed. Accordingly, without examining the remaining grounds of appeal by the defendant, the part of the judgment of the court below as to the defendant is reversed and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)