(영문) 대법원 2015.4.9. 선고 2015도1691 판결

1. According to Article 232 of the Criminal Procedure Act, a complaint may be withdrawn before the pronouncement of judgment in the first instance, but once the person who has withdrawn the complaint does not file another complaint. This legal doctrine likewise applies to the withdrawal of a wish to punish in a case which cannot be prosecuted against the clearly expressed will of the victim. Therefore, in order to recognize that the victim expressed his/her wish not to punish in the crime of non-prosecution penalty, it shall be expressed in a way that is obvious and trustable by the victim. However, even if such intent is explicitly expressed, even if the victim withdraws the declaration of intent and expressed his/her wish not to punish again, the perpetrator cannot be punished (see, e.g., Supreme Court Decision 2008Do10183, Jan. 15, 2009).

In addition, as the absence of the expression of intention of the non-existence of punishment is a passive litigation condition, the court should investigate and determine it ex officio even if the party did not assert it.

2. The record reveals the following facts.

The facts charged of this case affirmed the judgment of the first instance court which convicted the Defendant of the facts charged of this case. However, according to the records, such as reference documents submitted by the Defendant at the lower court, D’s genuine labor authority on February 20, 2010, 33,000,000, and 33,04,640 won unpaid wages in 201, and 3,04,640 won unpaid wages in 2012, and 63,544,640 won, which were paid in 2012, were not paid within 14 days from the date of retirement, which is the date of the occurrence of the cause for payment without agreement between the parties on extension of the due date for payment. It is true that D’s withdrawal from the labor inspector of this case, which was the same as the facts charged of this case, and that D’s withdrawal from the labor inspector of this case.

3. The crime under Articles 109(1) and 36 of the Labor Standards Act, which was prosecuted, is an offense against the victim’s express intent under Article 109(2) of the same Act. According to the above facts, D already withdraws his previous wish to punish the defendant on May 29, 2012, which was prior to the prosecution of this case, and thereafter expressed his previous wish to punish the defendant, there is a lot of room to deem that the prosecution of this case is unlawful as it is brought against D’s will not wish to punish the defendant. Therefore, the lower court should have dismissed the prosecution of this case where it is acknowledged after deliberation. Nevertheless, the lower court affirmed the first instance judgment convicting him of the charges of this case by failing to exhaust all necessary deliberations and by failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment on the withdrawal and the effect of the indictment of this case.

4. 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.