What Is an Offense Not Prosecutable Against the Victim's Will
An offense not prosecutable against the victim's will (반의사불벌죄) refers to a crime that cannot be punished if the victim does not wish the offender to be punished. These are mainly minor cases or crimes in which a settlement between the parties is important. Even if the victim has not filed a criminal complaint, investigative agencies may still punish the offender after an investigation; however, if the victim expresses an intention not to wish punishment, the offender will not be punished.
Points to Be Careful About
The key point to keep in mind with an offense not prosecutable against the victim's will is that the victim must express this intention before the first-instance judgment. Only then does it take effect, and once you have expressed such an intention, you cannot reverse it. Since you cannot go back and request punishment after having said you do not wish it, you must act prudently. However, it is possible to request that punishment not be imposed after having previously asked for it.
Under Article 232(1) of the Korean Criminal Procedure Act, a criminal complaint may be withdrawn before the pronouncement of the first-instance judgment, and paragraph (3) of the same article provides that, in cases where prosecution cannot be brought against the victim's express will, paragraphs (1) and (2) apply mutatis mutandis where the victim withdraws an expressed intention to wish punishment. In addition, the Supreme Court has held that, under Article 232(3) and (1) of the Korean Criminal Procedure Act, in cases where an offense cannot be prosecuted against the victim's express will, the withdrawal of an intention to wish punishment, or the expression of an intention not to wish punishment, may be made up until the pronouncement of the first-instance judgment, and that any such expression made thereafter has no effect. The Court thus ruled that the point in time by which a victim may express an intention not to wish punishment in such an offense is the pronouncement of the first-instance judgment.
Crimes Covered by This Rule
Representative crimes that constitute offenses not prosecutable against the victim's will include defamation, criminal intimidation, assault, and negligent bodily injury. Most of these fall into the category of minor offenses. In addition, such offenses include negligent bodily injury, issuance of bad checks, destruction of property and occupational negligence resulting in bodily injury arising from traffic accidents, violation of the wage-settlement provisions under the Labor Standards Act, the wrongful use of another person's resident registration number, and infringement offenses under the Patent Act.
When the Victim Does Not Wish Punishment
If the victim does not wish the offender to be punished for a crime that constitutes an offense not prosecutable against the victim's will, merely saying so is not enough; a criminal settlement agreement and a statement of no desire for punishment must be submitted to the relevant investigative agency. A criminal settlement agreement is a document setting out the terms of the settlement regarding the harm, such as monetary compensation, while a statement of no desire for punishment is a document expressing the intention not to wish punishment.
For a case to be treated as an offense not prosecutable against the victim's will, a settlement with the victim is most important. Whether or not a settlement is reached determines whether the case proceeds to criminal punishment or ends without punishment as an offense not prosecutable against the victim's will. For this reason, it is important to reach a smooth settlement with the victim while at the same time seeking advice from a criminal defense attorney specializing in the relevant area.
