Crime Requiring Complaint vs Crime Not Punishable Against Will in Korea

If you are involved in a criminal investigation in South Korea, it is not enough to know what happened. You also need to know whether the case can be prosecuted procedurally. In Korean criminal procedure, certain offenses require specific conditions for prosecution (소추조건). If those conditions are missing, or if they are later removed, your case may end without a conviction, even if the case looks “criminal” on the facts. As an English speaking lawyer in Korea, I emphasize to my clients that leveraging these legal categories is the most effective way to avoid a criminal record in Korea and secure a formal dismissal, effectively protecting your visa status and your professional future.

Summary Comparison

What are Prosecution Conditions (소추조건)?

Even if a crime has been committed, the state cannot always proceed with a trial. Prosecution conditions are the legal requirements that must be met for a prosecution to be valid. If these conditions are missing (for example, a complaint is withdrawn regarding a crime requiring complaint), the court must dismiss the case through a “Dismissal of Public Prosecution” (공소기각), regardless of the defendant’s guilt or innocence.

These conditions exist to respect the victim’s wishes and to maintain social harmony in specific types of offenses.

1. Crime Requiring Complaint (친고죄)

A Crime Requiring Complaint is an offense where the prosecution can only be initiated if the victim or a person with the right to complain files a formal complaint. In these cases, the victim’s willingness to proceed is the “on-off switch” for the entire legal process.

• Absolute Crime Requiring Complaint: These offenses always require a complaint to be prosecuted. Common examples include Insult (모욕죄) and Defamation of a Deceased Person (사자명예훼손죄).
• Relative Crime Requiring Complaint: Certain crimes (mostly property-related, such as theft or fraud) become “crimes requiring complaint” only when they occur between specific relatives. This is known as the “Relativity of Property Crimes” (친족상도례).

The Principle of Indivisibility

Pursuant to Article 233 of the Criminal Procedure Act, if there are multiple accomplices in a crime requiring complaint, a complaint filed against one (or the withdrawal of a complaint against one) automatically applies to all accomplices.

Strategic Note: If you reach a settlement and the victim withdraws their complaint against you before the first-instance judgment, the case against all your co-defendants must also be dismissed. This legal “all-or-nothing” rule is a powerful tool in multi-defendant defense strategies.

2. Crime Not Punishable Against Will (반의사불벌죄)

A Crime Not Punishable Against Will is an offense where the prosecution can start without a complaint, but it must stop if the victim clearly expresses that they do not want the defendant punished. Unlike a “Crime Requiring Complaint” (which needs a complaint to start), this category allows the state to act immediately, but gives the victim the “veto power” to stop the prosecution.

Common examples include:

• Simple Assault (폭행죄)
• Intimidation (협박죄)
• Defamation (명예훼손죄)
• Negligent Injury (과실치상죄)

Key Strategic Difference: No Indivisibility

This is perhaps the most critical distinction for cases involving multiple people (accomplices). Unlike the previous category, the “Principle of Indivisibility” does not apply to a Crime Not Punishable Against Will.

To illustrate, consider a multi-defendant assault case involving Defendant A and Defendant B:

• Scenario for Defendant A: If Defendant A reaches a settlement and receives a formal “Non-punishment Statement” (처벌불원서) from the victim, the court will dismiss the case against Defendant A.
• The Risk for Defendant B: Defendant B is not automatically protected by Defendant A’s settlement. Unless Defendant B also reaches an agreement or the victim explicitly names them in the non-punishment declaration, the prosecution against Defendant B will continue.

Crucial Rules for Settlement and Withdrawal

An experienced criminal lawyer in Korea representing you will keep these three procedural rules in mind to ensure your efforts lead to a legal dismissal:

a. The Strict Deadline: First-Instance Judgment

Under Article 232 (1) and Article 327 of the Criminal Procedure Act, the withdrawal of a complaint or the expression of “non-punishment” must be submitted to the court before the first-instance judgment is pronounced.

• The Risk: Once the judge reads the sentence in the first trial, a later settlement cannot result in a “Dismissal of Prosecution” (공소기각).
• The Benefit: While a late settlement won’t dismiss the case, it still serves as a powerful mitigating factor that can significantly reduce your final sentence.

b. Irrevocability: No Second Chances

Once a victim formally withdraws their complaint or files a “Non-punishment Statement” (처벌불원서), the decision is final and irrevocable. Pursuant to Article 232 (2) of the Criminal Procedure Act, a victim who has withdrawn their complaint loses the legal right to file a complaint for the same criminal facts again. This provides the defendant with “legal finality,” ensuring the case cannot be reopened later.

c. The Proper Method: Filing with the Authorities

A common mistake foreigners make is assuming a signed private agreement is enough to stop a case. In Korean law, the intent to withdraw must be formally expressed to the investigative authorities (Police or Prosecution) or the Court.

• Private Agreement: This is merely a civil contract between parties and does not automatically bind the state’s power to prosecute.
• Legal Withdrawal: This is a formal procedural act. To close your case, your attorney must ensure the proper documents are filed directly into the official case record to be legally recognized.

Strategic Defense for Foreigners in Korea

For foreign residents in South Korea, a criminal conviction is about much more than just a fine or a penalty; it can trigger severe immigration consequences, ranging from visa extension denials to mandatory deportation. This is why working with a skilled English speaking criminal lawyer in Korea is essential for protecting your rights. A lawyer who is intimately familiar with the specific “pain points” and unique challenges faced by the expat community can make all the difference.

At Kang & Shin, we prioritize defense strategies that focus on prosecution conditions. We specialize in “bridge-building” negotiations between victims and defendants, ensuring that the precise legal documents required for a favorable outcome are secured and properly filed.

About the Author:   Won Sang Kang is a dual-qualified attorney licensed in Korea and California (USA). He holds a law degree from Northwestern Pritzker School of Law and a Master’s degree from KAIST. His distinguished career includes serving as a Court-Appointed Defense Counsel for the Supreme Court of Korea and the Seoul Central District Court, as well as a Managing Attorney for an international law firm. With a focus on the unique legal needs of the international community in Korea, he provides strategic representation in criminal defense, divorce and family matters, inheritance, and contract disputes.