The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

1. The decision of the court below on the gist of the grounds for appeal is too unreasonable.

2. We examine ex officio the judgment on the grounds for appeal by the defendant for ex officio judgment on the ground of appeal by the court below.

A. At around 02:00 on April 3, 2020, the Defendant: (a) committed assault against the victim’s head at a time when he/she was requested to pay a taxi fee from the victim I (Nam, 67 years of age) who driven a taxi that he/she was aboard and return home at the underground parking lot of Songpa-gu Seoul Metropolitan Government H Apartment apartment; and (b) he/she received a request to return home.

B. Article 260(3) of the Criminal Act provides that “The crime of paragraphs (1) and (2) shall not be prosecuted against the victim’s express intent.” Thus, the crime of violating Article 260(1) of the Criminal Act constitutes the crime of non-prosecution.

On the other hand, a declaration of wishing not to withdraw or punish an expression of wishing to punish in a crime of non-violation of will may be made before the judgment of the court of first instance is rendered (Article 232(1) and (3) of the Criminal Procedure Act). Since the absence of an expression of wishing not to punish is a passive litigation condition, the absence of an expression of intent not to punish is subject to ex officio investigation and determination, even if the parties

(See Supreme Court Decision 2019Do10678 Decided December 13, 2019 (see, e.g., Supreme Court Decision 2019Do10678, Dec. 13, 2019). However, according to the records of this case, a victim I’s written application for non-prosecution of punishment stating that “the victim does not want the punishment of the defendant under the agreement with the defendant” was submitted on August 26, 2020, prior to the pronouncement of the lower judgment. Accordingly, the victim I voluntarily withdrawn his/her wish to punish the defendant. Accordingly, the judgment dismissing the prosecution pursuant to Article

Nevertheless, the judgment of the court below which found this part of the facts charged guilty is erroneous in the misapprehension of legal principles as to the crime of non-compliance with opinion, which affected the conclusion of the judgment.

3. Conclusion.