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If the Father Won’t Press Charges, the Prosecution Can’t Either: Supreme Court Voids Assault Conviction

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A son convicted and fined for assaulting his father has had his conviction voided — because the father told investigators he did not want his son prosecuted, and the law required that wish to be respected. Here are the key points.

Issue

Where a victim of assault by a family member explicitly states before charges are filed that he does not wish the perpetrator to be prosecuted, can the prosecution proceed anyway — and what remedy exists when a final conviction has already been entered in violation of that rule?

Facts

  • In November 2022, A demanded money from his father at a store, was refused, and struck him with fishing equipment on display.
  • Two days later, A’s father told investigators he did not wish to see his son prosecuted.
  • Despite this, the prosecution filed for a summary order against A in October 2023 — approximately a year after the incident.
  • The Cheonan Branch of Daejeon District Court issued a summary conviction and ₩1 million fine for assault of a lineal ascendant in February 2024. A did not request a formal trial, and the conviction became final in March 2024.

The Legal Framework

  • Under Article 260(3) of the Criminal Act, assault of a lineal ascendant is a complaint-required offense — meaning prosecution cannot proceed against the explicit wishes of the victim. This is the same reformed framework that applies to family property crimes following the 2024 Criminal Act amendments.
  • Where the victim expresses a non-punishment wish before charges are filed, any subsequent prosecution is void as a procedural violation.

How the Case Reached the Supreme Court

  • With the conviction already final, the only available remedy was an extraordinary appeal (비상상고) — a mechanism by which the Prosecutor General may petition the Supreme Court to correct a final judgment that violates the law. It is not an ordinary appeal channel and is reserved for cases where a confirmed conviction contains a clear legal error.
  • The Prosecutor General filed exactly such an appeal, acknowledging that the prosecution should not have proceeded against A’s father’s explicit wishes.

Supreme Court Decision

  • The Supreme Court (Criminal Division 2, presiding Justice Eom Sang-pil) granted the extraordinary appeal on April 30, 2026, quashed the original judgment, and dismissed the prosecution entirely.
  • The court held that because A’s father had expressed his non-punishment wish before the summary order was requested, the filing of that order constituted a procedurally invalid prosecution — void from the outset.
  • The original court’s failure to recognize and act on that invalidity constituted a violation of law that was to A’s detriment.
  • Under Article 446(1) of the Criminal Procedure Act, where an extraordinary appeal reveals a legal violation that prejudiced the defendant, the Supreme Court quashes the original judgment and re-decides. Since the prosecution itself was void, the court dismissed the charges under Article 327(2).

Key Takeaways

  • Assault of a lineal ascendant is a complaint-required offense. A victim’s explicit non-punishment statement made before charges are filed bars prosecution entirely — not merely as a mitigating factor, but as a procedural requirement that voids any subsequent charge.
  • The timing of the non-punishment statement matters: it must precede the filing of charges. Here, the father expressed his wish two days after the incident and nearly a year before the prosecution acted — well within the required window.
  • Where a final conviction has been entered in violation of this rule, the extraordinary appeal mechanism allows the Prosecutor General to seek correction before the Supreme Court, even after all ordinary appeal windows have closed.
  • The Supreme Court will quash such a conviction and dismiss the prosecution where the procedural defect is clear and the original judgment was to the defendant’s detriment.

Why This Matters

This case illustrates two important principles operating together. First, the complaint-required nature of family assault offenses creates a genuine and enforceable barrier to prosecution — not a formality that investigators and prosecutors can overlook. Second, the extraordinary appeal mechanism exists precisely to correct these kinds of errors after finality, ensuring that defendants are not permanently burdened by convictions that should never have been entered. For practitioners, it is a reminder to check the victim’s expressed wishes at the earliest stage of any family assault matter — and to raise the issue proactively if a non-punishment statement was given before charges were filed.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=221720

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