친고죄와 반의사불벌죄의 근거와 현행법제의 타당성 연구

A Study on the Bases of Indictment Subject to Complaint and Penalty Subject to Consent, and the Justifiability of the Current Law

Most countries’ criminal systems operate under the principle of the state’s exclusive power over criminal procedure, where the state will exercise its powers of criminal procedure regardless of the victim’s opinion. The rationale is that the public interest in the fair and consistent exercise of the state’s criminal penalty power to indict every crime. However, the Korean Criminal Act and certain special Acts provide for indictment subject to complaint and penalty subject to consent, which serve as exceptions to or limitations on the principle of the state’s exclusive power over criminal procedure. Under the current law, making the indictment of a crime subject to complaint is a matter of legislative policy where its rationality is recognized so long as the public interest in imposing penalties upon crimes is greater than the interest in restraining the criminal penalty power by leaving the choice for its exercise to the person entitled to file a complaint. On this basis, different crimes may have different reasons to have their indictment made subject to complaint. Namely, making indictment subject to complaint is based on varied criminal-policy considerations. Based on the rationale behind such indictment subject to complaint and penalty subject to consent provisions, this paper has reviewed these previsions in the current Criminal Act, Act on Special Cases Concerning the Punishment, Etc., of Sexual Crimes, Act on the Protection of Children and Juveniles from Sexual Abuse, and Copyright Act. Though the Criminal Act and related special Acts made indictment of certain sexually violent crimes subject to complaint to prevent infringement on the victim’s reputation or privacy due to the crime becoming public, there have been arguments that the provision serves more to indemnify sexually violent criminals from punishment rather than to protect victims, voiding both the general and specific deterrent effect of criminal law and encouraging recidivism. Based on such arguments the amendment of the Criminal Act and related special Acts in December 2012 removed provisions making indictment of sexual crimes such as rape subject to victim complaint. Furthermore, affected by the conclusion of the Korea-U.S. FTA, the Copyright Act was amended in 2008 to decrease the scope of crimes whose indictment is subject to complaint. Afterward, through two additional amendments the Copyright Act added new obligatory provisions and made according changes in the penalty provisions. Though some commentators criticize the remaining crimes in the Copyright Act whose indictment is subject to complaint, copyright materials are not exclusively subject to copyright holders’ rights. They have a public goods component in that the general public effect changes in ideas and opinions by using others’ works and fuel new works by such use, making such works and their usage the source of development in human culture. Therefore it is justifiable to make the indictment and punishment of copyright violations subject to the copyright holders’ complaint. Meanwhile, the bill for the partial amendment of the Criminal Act submitted by Assembly Member Park Yeong-seon and ten others on June 12, 2012 proposed amending Article 312 to make the indictment of all crimes against reputation subject to complaint so that these crimes would not be used for political purposes by politically motivated prosecutors. Considering the reality of investigative practice, where investigation on the crime of libel, also listed as a crime whose penalty is subject to complaint, only commences on the complaint of an individual entitled to file a complaint such as the victim, the amendment bill is justified in making the indictment of all crimes against reputation subject to criminal complaint.