미성년자의 고소능력에 관한 연구 = Study on the capacity for Complaint, Generation and Termination of effect of Minor

다국어 초록 (Multilingual Abstract)

The complaint under the structure of the Criminal Procedure Code providing that the right of criminal prosecution is monopolized by the nation is only the condition of criminal investigation. The reason why the nation allows the victim to make a complaint is because the victim may recover its rights easily through the complaint system. On the other hand, however, there is a tendency that the overuse of complaint caused by the victim’s uncontrolled impulse results the abuse of national punitive power. This paper studies the capacity for complaint and the generation and termination of its effect that there is a concern giving rise to confusion in administering the complaint system based on the judicial precedent.
In case of minor and the mentally handicapped, the capacity for complaint should be allowed considering the physical maturity, intellectual level and other factors depending on the concrete case rather than all cases indiscriminately. Accordingly, if a victim has an intellectual level equivalent to the mental age of an eleven-year-old considering the victim’s age, intellectual level, social efficiency, etc comprehensively, the victim should be deemed to have the capacity for complaint. Additionally if a victim is a mentally retarded people or is lowered in the intellectual level comparing to that of an average man, the time for allowing the capacity for complaint must be extended relatively. This means that if the victim cannot recognize the related harm, a concrete validity should be schemed for protecting the victim by suspending the legal prescription of complaint till the victim recognizes the harm or has help from an assistant.
A complaint shall become effective when a letter of complaint filed in a public prosecutor´s office or a police station is accepted. In case of declaring orally or only harm, the effect of complaint shall not be generated. For the effectuation of complaint, the victim declares his/her intention requiring for the wrongdoer to be punished on the victim’s written statement and the contents of the victim’s intention should be recorded on the police report. In case a complainant makes a complaint orally at a police station, the complainant should be requested to prepare and submit the letter of complaint, if possible. In case the complainant is mentally disabled or illiterate and it is impossible to prepare the letter of complaint, a supplementary letter of complaint should be prepared for the victim. In particular, in case of making a complaint orally at the scene of an offense, it is desirable, upon receiving the victim’s written statement, to take the victim to a police station, if possible. It should be explained in full that the contents stated by the victim may not be recorded in the police report without omission. This is because the investigative agency, the party preparing the supplementary letter of complaint, does not record the contents stated by the victim as the stater but summarizes the outlines.
Even though the parties interested reach an agreement, it does not meet the requirements for withdrawing the related complaint. To withdraw the complaint, the complainant shall file the letter of withdrawal or the content that the complaint shall be withdrawn should be included in the police report. Accordingly if a complainant submits a written agreement only, it should be required to file the letter of withdrawal or make a police report for withdrawing the complaint after confirming the intent of withdrawal.
The complaint is a meaningful system for materializing the conflicting ideas of the fair exercises of national punitive power and the victim’s recovery of rights harmoniously. Therefore the complaint system should be administered appropriately according to the spirit of the system. The police station is the front line of the complaint system. When the complaint system is administrated appropriately at the front lines, the judiciary justice will be realized and a nation will be satisfied with the criminal judicial system. For these reasons, it is necessary for the policemen in the field shall understand the spirit of complaint system and have thorough knowledge of the related laws and regulations and the judicial precedent.