Offenses Prosecutable Only Upon Complaint: Types, Categories, and the Criminal Complaint

What Is an Offense Prosecutable Only Upon Complaint?

An offense prosecutable only upon complaint (친고죄) is a crime for which the prosecutor cannot bring an indictment unless someone entitled to file a criminal complaint, such as the victim or a legal representative, actually does so. Because prosecution can be initiated only when such a person files a complaint, the complaint here refers to the act of the entitled person reporting the crime to the investigative authorities and demanding that the offender be punished.

Even if a crime has been committed, when it qualifies as an offense prosecutable only upon complaint and the other party files no complaint, the prosecution is dismissed in accordance with Article 327, Item 2 of the Korean Criminal Procedure Act.

Types of Offenses Prosecutable Only Upon Complaint

Depending on the relationship between the victim and the offender, these offenses are divided into absolute and relative categories. An absolute offense prosecutable only upon complaint always requires a complaint from an entitled person, whereas a relative one requires a complaint because of a kinship relationship or similar circumstance. When people speak of an offense prosecutable only upon complaint in general terms, they usually mean the absolute type.

Categories of Offenses Prosecutable Only Upon Complaint

In Korea, the crimes that fall into this category are as follows.

① Crimes where allowing investigative authorities to investigate at their own discretion could harm the victim (mainly through invasion of privacy)

- Defamation of the dead

- Criminal insult

- Violation of secrecy

- Disclosure of professional secrets

② Crimes where intervention is discouraged because the matter is one between relatives

- Property crimes committed between relatives who do not live together (except robbery and destruction of property)

③ Other crimes tied to administrative purposes

- Non-commercial infringement under the Copyright Act

The Filing Period for a Criminal Complaint

For an offense prosecutable only upon complaint, the criminal complaint must be filed within six months of the day the victim learns who the offender is. Once this period has passed, prosecution can no longer be initiated.

The Difference From Offenses Not Requiring a Complaint

The opposite concept is an offense that does not require a complaint. Unlike an offense prosecutable only upon complaint, where prosecution cannot proceed without the victim filing a complaint, these crimes can be prosecuted even on a report by an unrelated third party or through the investigative authorities' own initiative. This category was created with serious crimes in mind, where the offense is grave and where the victim might be unable to file a complaint for various reasons, such as intimidation. Most serious crimes that lack any provision making them prosecutable only upon complaint fall into this category, and unlike offenses requiring a complaint, the nature of the crime often makes it impossible to confirm the victim's wishes.

Among offenses that do not require a complaint, an offense not prosecutable against the victim's will (반의사불벌죄) allows the offender to escape punishment if a settlement is reached with the victim. For most crimes, however, which are neither offenses prosecutable only upon complaint nor offenses not prosecutable against the victim's will, avoiding punishment is not easy. If you face an allegation involving an offense that does not require a complaint, it is therefore advisable to seek legal advice from a relevant criminal defense attorney.

The Difference From Offenses Not Prosecutable Against the Victim's Will

As noted above, a concept similar to an offense prosecutable only upon complaint is an offense not prosecutable against the victim's will. While the former is a crime that requires the victim's complaint for prosecution, the latter refers to a situation where the victim does not wish the offender to be punished. The two share the feature that, when they apply, the offender can escape punishment if the victim has not filed a complaint or has withdrawn it. The difference is that with an offense not prosecutable against the victim's will the complaint is withdrawn, whereas with an offense prosecutable only upon complaint no complaint is filed in the first place.

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