Supreme Court: Adult Guardians Cannot Express 'No Intention to Prosecute' Instead

Jeonhap "Even if an adult guardian obtains family court approval, it is the same"
Opposing opinion "It should be considered possible to express a non-prosecution intention after family court approval"

The Supreme Court has ruled that a legal guardian for an adult ward who lacks capacity cannot express a desire not to punish the perpetrator on behalf of the victim.

Supreme Court Grand Bench ruling scene. [Image source=Yonhap News]

The Supreme Court en banc (Presiding Justice Min Yu-sook) on the 17th upheld the lower court's ruling sentencing Mr. A, who was indicted for violating the Special Act on the Treatment of Traffic Accidents, to eight months in prison with a two-year probation.

Mr. A was tried on charges of injuring a pedestrian in his 60s whom he hit while riding a bicycle in Sunnae-dong, Bundang-gu, Seongnam City, in November 2018, when he was a high school student. As a result of the accident, the victim suffered brain damage and fell into a vegetative state. Subsequently, the victim’s wife, acting as his legal guardian, reached a settlement with Mr. A and expressed to the court her intention not to seek punishment.

Under the Special Act on the Treatment of Traffic Accidents, the crime of bodily injury causing harm is a "crime that cannot be prosecuted against the victim’s will" (ban-ui-sa-bul-beol-jwe), meaning that if a statement of non-punishment from the victim’s side is submitted, the court must dismiss the prosecution.

However, both the first and second trials sentenced Mr. A to eight months in prison with a two-year probation on the grounds that even if the victim lacks capacity, the legal guardian cannot express a non-punishment intention on behalf of the victim.

The Supreme Court also agreed with the lower courts’ judgment. The en banc stated, "In crimes that cannot be prosecuted against the victim’s will, unless explicitly provided by law, a legal guardian for an adult ward who lacks capacity cannot decide on or withdraw a non-punishment intention or a desire for punishment regarding the defendant or suspect on behalf of the victim. This applies even if the legal guardian’s authority includes ordinary litigation acts or if the legal guardian has obtained permission from the family court as prescribed by the commencement judgment of adult guardianship."

On the other hand, Justices Park Jung-hwa, Min Yu-sook, Lee Dong-won, Lee Heung-gu, and Oh Kyung-mi dissented, stating, "If the victim lacks capacity, the legal guardian should be allowed to express a non-punishment intention regarding crimes that cannot be prosecuted against the victim’s will, provided they obtain permission from the family court."

This content was produced with the assistance of AI translation services.