반의사불벌죄에서 성년후견인에 의한 처벌불원의사의 법정대리 : 형사소송법 규정의 유추적용 가능성 - 대법원 2023. 7. 17. 선고 2021도11126 전원합의체 판결 -

초록

The Supreme Court held that, in crimes not prosecutable against the victim’s will, an adult guardian is not authorized to represent the victim in expressing an intention not to seek punishment when the victim lacks the legal capacity to make such a decision. The majority relied on statutory silence―a legislative gap on this issue―, the principle that procedural conditions governing the exercise of the Government’s penal authority should be interpreted strictly, and the proposition that the distinction between crimes subject to a complaint and crimes not prosecutable against the victim’s will represents a legislative determination. Nevertheless, the majority’s reasoning raises several concerns. First, Article 25 of the Korean Criminal Procedure Act permits a legal representative to undertake procedural acts on behalf of a defendant or suspect who lacks decisionmaking capacity. In crimes not prosecutable against the victim’s will, where the victim’s intention serves as a condition for prosecution, denying representation even where the victim lacks decision-making capacity is manifestly inconsistent with procedural fairness between the defendant and the victim. Second, crimes subject to a complaint and crimes not prosecutable against the victim’s will are substantively analogous. In both categories, the victim’s intention functions as a condition for prosecution, and both are premised on the legislative objective of according maximum respect to the victim’s wishes. Accordingly, insofar as the Criminal Procedure Act expressly recognizes legal representation with respect to filing and withdrawal of complaints in crimes subject to a complaint, the analogical application of those provisions to the expression of an intention not to seek punishment in crimes not prosecutable against the victim’s will is justified. Such an approach properly supplements a legislative gap through interpretation. Third, the purpose of the adult guardianship system is to provide necessary protection while, to the greatest extent possible, respecting the self-determination and remaining decision-making capacity of persons with impaired capacity. An adult guardian is appointed through rigorous judicial scrutiny, remains subject to ongoing court supervision, and is under a legal duty to act in the best interests of the person under guardianship. Accordingly, allowing an adult guardian, upon obtaining court approval, to represent the victim in expressing an intention not to seek punishment is likely to yield an outcome that more accurately reflects the victim’s authentic wishes. At the same time, it serves to protect the victim’s best interests by affording the victim an opportunity to avoid the burdens of criminal proceedings. In conclusion, where the victim of a crime not prosecutable against the victim’s will lacks decision-making capacity, the analogical application of Article 26 and Article 225 of the Criminal Procedure Act should be recognized. Accordingly, an adult guardian should be authorized, upon obtaining court approval, to express an intention not to seek punishment on behalf of the victim.

키워드