고소의 객관적 불가분 원칙의 적용 범위 재검토-서울서부지방법원 2017. 9. 28. 선고 2017노818 판결

Abstract

With the prohibition of private revenge, the era of the monopoly of the state penalty has begun. Under the monopoly of the state penalty, the state exercised the right to punishment formally in proportion to the guilt without being influenced by the victim. Under the monopoly of the state penalty, all crimes were set as offences prosecutable without a complaint, and criminals were punished unconditionally even if the victim expressed his or her intention not to be punished. To a certain extent that the will of the victim may be respected, an offence prosecutable upon a complaint was set as an exception to the monopoly of the state penalty, but according to the objective indivisibility principle of the crime complaint, the victim’s right to sue was restricted. Under the objective indivisibility principle of the crime complaint, the victim can merely decide whether to punish the whole of the crime but cannot file a complaint seeking punishment only for the part of the crime. Even if such a complaint is made, the complaint will affect the whole of the crime. However, the objective indivisibility principle of the crime complaint was merely created at the request of the formal exercise of the state penalty, and there is no basis for it under the legal provisions. There is no reason to mechanically apply the objective indivisibility principle of the crime complaint to today’s spirit of reflecting the victim’s intentions more in criminal proceedings. Rather, further reflecting the victim’s intention in criminal proceedings by weakening the formalization of the exercise of the state penalty is reasonable.