Offence subject to complaint

An offence subject to complaint (친고죄/親告罪) refers to the crime that the public prosecutor shall indict the criminal subject to the complaint of the victim and other legally qualified person.

In case of the offence subject to complaint, the complaint is an expression of the qualified person to report the fact of criminal conduct and demand the punishment of such criminal to the law enforcement official in writing or orally. Oral report shall be written down on a police/prosecutor report.

To combat sex crimes, on November 22, 2012, the National Assembly passed the amendment to the Criminal Act by deleting the provisions which require victim's complaint for public prosecution (Articles 296 and 306). The newly amended Criminal Act comes into force six months after its promulgation. The said provisions were initially legislated for the protection of the privacy and reputation of the victim. But the victim allegedly became the target of the second crime of improper appeasement and intimidation staged by the culprit.

Key words
offence subject to complaint, Offence unpunishable over objection, Sex crimes, victim, culprit

Applicable Crimes
The Criminal Act stipulates such crimes as could damage the privacy, honor and reputation of the victim (Type I), or affect little the public interest (Type II) in the name of offence subject to complaint.

Type I
After the entry into force of the newly amended Criminal Act in the middle of 2013, only adultery remains as offence subject to complaint. But the adultery is argued as contrary to prevailing sexual self-determinism.
 * Adultery (Art. 241)
 * Kidnapping and custody for the purpose of sexual intercourse or indecent act (Arts. 288 (1) 292(1) and 293 (2)) or Kidnapping for marriage (Art. 291)
 * Rape (Art. 297)
 * Indecent Act by Compulsion (Art. 298)
 * Quasi-Rape, Quasi-Indecent Conduct by Compulsion (Art. 299)
 * Attempts to commit the above crimes (Art. 300)
 * Sexual Intercourse by Abuse of Occupational Authority, etc. (Art. 303)
 * Sexual Intercourse with Minor, etc. (Art. 302), Sexual Intercourse or Indecent Act with Minor (Art. 305)

Type II

 * Defamation of the Dead (Art. 308)
 * Insult (Art. 311)
 * Theft against Relatives (Arts. 344, 329)

Procedure and Effect
The crimes of Articles 297 through 300 and 302 through 305 shall be prosecuted only upon complaint. (Art. 306 of the Criminal Act)

Same to the crimes of Articles 308, 311 and 344. (Arts. 328 and 344 of the Criminal Act)

Compare the crimes, which shall not be prosecuted over the express objection of the victim,(반의사불론죄/反意思不論罪) with these offences subject to complaint.

Where the procedure for instituting public prosecution is void by reason of its having been contrary to the provisions of the Criminal Act, which require the complaint of the victim, such public prosecution whall be dismissed by judgment (Art. 327 ii of the Criminal Procedure Act) The limitation of complaint shall be six months from the date of recognition of the culprit. The period shall be extended to one year in case of the offence subject to complaint prescribed in the Act on the Prevention of Sexual Assault and Protection, etc. of Victims thereof (성폭력범죄 방지 및 피해자 보호 등에 관한 법률).

Why Lift the Complaint Condition?
Recently sex violence criminals may be accused without the complaint of victims.

Since April 2010, Sexual intercourse with the Disabled or Minor under 13 under Article 16 (Intention of the Victim) of the Act on the Protection of Children and Juveniles from Sexual Abuse (아동.청소년의 성보호에 관한 법률) amended in April 2010 and Fubruary 2012, respectively.

Exception to Crimes against Minors
Notwithstanding Article 306 of the Criminal Act and Article 15 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Violence Crimes (성폭력범죄의 처벌 등에 관한 특례법), the crimes against children and juveniles stated in any of the following Subparagraphs may be prosecuted without the complaint of the victim;
 * 1. Crime under Article 7 (Rape and Indecent Act by Compulsion, etc. against Children and Juveniles);
 * 2. Articles 297 through 300, 302, 303 and 305 of the Criminal Act as mentioned above; or
 * 3. Article 10 (1) (Indecent Act by Abuse of Occupational Authority, etc.) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Violence Crimes.

[Offence unpunishable over Objection] Provided, however, that the crimes against children and juveniles under Articles 11 (Indecent Act in Public Crowded Places) and 12 (Obscene Act via Communications Media) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Violence Crimes (성폭력범죄의 처벌 등에 관한 특례법) shall not be prosecuted over explicit objection of the victim. 