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

The grounds of appeal are examined.

1. The appellate court shall investigate and determine ex officio the absence of the intention of non-existence of punishment in the crime of non-violation of intention as a passive litigation condition, and even if a party did not assert it as a reason for appeal, the appellate court shall ex officio

Article 260(3) of the Criminal Act provides that a crime of assault may not be prosecuted against the express intent of the victim. Article 232(3) and (1) of the Criminal Procedure Act provides that the withdrawal of declaration of intent desired to punish may be made before the pronouncement of the first instance judgment in a case in which the crime of assault cannot be prosecuted against the express intent of the victim.

In order to recognize that the victim has expressed his wish not to punish or withdrawn his wishing to punish for a crime of non-violation of will, it should be expressed in such a way that the victim's true will is obvious and reliable.

(1) In light of the aforementioned legal principles, whether the legal representative of the victim’s minor is included in the intent of the victim himself/herself should be determined by comprehensively taking into account the type and content of the subject case, the age of the victim, the actual subject and content of the agreement, the circumstances before and after the agreement, the attitude of the legal representative and the victim, etc.

(2) In full view of the following circumstances acknowledged by the health care unit and the record as to the instant case in accordance with such legal doctrine on May 13, 2010 (see, e.g., Supreme Court Decision 2009Do5658, May 13, 2010).

A prosecutor shall provide the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.