Settlement with the victim in Korean criminal cases can have very different legal effects depending on the alleged offense. For certain offenses, a valid withdrawal of the criminal complaint or an express statement that the victim does not wish punishment can prevent or terminate prosecution. For other offenses, settlement may influence the charging decision or sentence but does not automatically end the case.
This guide explains the distinction between offenses that cannot be prosecuted against the victim’s express wishes (반의사불벌죄) and offenses prosecutable only upon a valid complaint (친고죄), with particular attention to foreign suspects and victims navigating the Korean criminal process.
1. Offenses Not Prosecutable Against the Victim’s Express Wishes (반의사불벌죄)
These are crimes where prosecutors can begin a case without the victim’s initial complaint, but if the victim validly expresses that they do not wish the accused to be punished before the first-instance judgment is pronounced, prosecution of that offense can no longer be maintained.
Common Examples
For a crime to fall into this category, it must be explicitly provided for in the law. Common examples include assault, intimidation/threat, and defamation.
Current-law note: Stalking was formerly treated as an offense not prosecutable against the victim’s wishes. That provision was deleted by the 2023 amendment, so a victim’s settlement or non-punishment statement no longer automatically prevents prosecution of a stalking offense.
How It Works
Police or prosecutors can begin an investigation without the victim’s complaint. However, if the victim submits a “statement of non-punishment,” the case must be closed. Timing is key: the victim must submit this statement before the first-instance trial is finalized.
2. Complaint-Dependent Offenses (친고죄)
These are crimes where the legal process cannot begin without a complaint from the victim. A valid complaint from the victim or another legally authorized complainant is required before public prosecution may be instituted. Although investigative steps may sometimes occur before a complaint is filed, the case generally cannot proceed to a valid prosecution without one.
Common Examples
For a crime to fall into this category, it must also be explicitly provided for in the law. Common examples include the crime of insult, defamation of dead person, and violation of secrecy.
Note: Legislative reforms have reduced the number of these crimes in recent years, especially in sexual offense laws, so updated legal advice is crucial.
How It Works
A victim (or a person to file a complaint) must file a criminal complaint. There is a strict deadline: the complaint must be filed within six months of the victim identifying the offender. If this deadline passes, the right to file a criminal complaint is lost and prosecution becomes permanently barred.
3. The Key Differences at a Glance
Who can start the case?
In the case of “crimes not punishable against the victim’s will” (e.g., crime of assault) the prosecutor can begin an investigation and prosecution even without the victim filing a complaint. By contrast, for “crimes punishable only with the victim’s complaint” (e.g., crime of insult), the case cannot begin unless the victim actively files a formal complaint with the authorities.
Who can stop the punishment?
For “crimes not punishable against the victim’s will,” the victim may stop the case at any time before the first-instance judgment by submitting a statement that they do not wish the offender to be punished. Similarly, for “crimes punishable only with the victim’s complaint,” the complainant also has the right to withdraw the complaint before the judgment at the first instance trial. Once the complaint is withdrawn, the prosecution can no longer continue with the case.
Therefore, the core difference is that for “crimes punishable only with the victim’s complaint,” the filing of the complaint is a prerequisite for starting the case, while for “crimes not punishable against the victim’s will,” the case can begin without the victim’s initial complaint, but the victim can also end it.
4. Why Timing and Settlement Documents Matter
If you are a victim, understanding these rules helps you recognize your leverage. Do you need to file a formal complaint to get things started, or do you have the power to stop a case that has already begun.
If you are the accused, and you are not contesting the alleged acts, negotiating a settlement with the victim may be the most effective way to achieve dismissal. Misunderstanding these procedures could lead to a criminal record that might otherwise have been avoided.
5. Criminal Law Assistance for Foreigners in Korea
Because the legal effect of a settlement depends on the precise offense and procedural stage, obtaining advice from a criminal defense lawyer in Korea can be important before signing an agreement or submitting a complaint withdrawal or statement of non-punishment.
Kang & Shin provides bilingual representation for foreign suspects and victims. Those seeking an English-speaking lawyer in Korea may contact Kang & Shin to discuss their matter.
