Open Decision Ledger · Family & inheritance law
Theft by a son, the amended complaint-offence rule and withdrawal of complaint
Supreme Court, Feb. 26, 2026, 2026Do354 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 절도
Official text on the National Law Information Center
Question
Where the defendant, the victims' second son, stole a safe and its contents from their home on 10 December 2024, did the amended Article 328(1) of the Criminal Act make the prosecution depend on the victims' complaint, and must the court below have quashed the first-instance judgment and dismissed the prosecution once the victims withdrew their complaint before that judgment was pronounced?
Holding
Yes. The theft was committed on 10 December 2024, after the Constitutional Court's decision of 27 June 2024, so Article 2 of the Supplementary Provisions to the Criminal Act (Act No. 21307 of 31 December 2025) applied the amended Article 328(1), which makes a theft offence against a kin of the victim one prosecutable only on the victim's complaint. The victims withdrew their complaint before the first-instance judgment was pronounced, so the court below should have quashed that judgment and dismissed the prosecution under Article 327(5) of the Criminal Procedure Act; its contrary guilty finding misapprehended the law on the withdrawal of a complaint in a complaint offence and affected the judgment.
Points at issue, verbatim
피고인의 변호인은 제1심판결 선고 전에 제1심법원에 ‘피해자들은 피고인의 처벌을 원하지 않는다.’는 취지가 기재된 피해자들 명의의 합의서와 처벌불원서를 제출한 사정 및 형법 제328조 제1항의 개정 경과와 개정 내용 등을 종합하면 공소사실에는 형법 제328조 개정규정이 적용되어 피해자들의 고소가 있어야 공소를 제기할 수 있는데 피해자들은 고소를 취소하였으므로
Unofficial English translation
Considering the circumstance that before the pronouncement of the judgment of the court of first instance, the defendant's counsel submitted to the court of first instance a written agreement in the names of the victims and a written statement of non-punishment stating in substance that "the victims do not wish the defendant to be punished," as well as the legislative history and the content of the amendment to paragraph (1) of Article 328 of the Criminal Act, the amended provisions of Article 328 of the Criminal Act apply to the facts charged, so that the public prosecution could be instituted only if the victims filed a complaint, and the victims withdrew their complaint, since
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon District Court.
Form of the test
Existing test applied Read from the decision
쟁점 공소사실에 대하여는 형법 부칙(2025. 12. 31. 법률 제21307호) 제2조에 의해 형법 제328조의 개정규정이 적용된다.
Unofficial English translation
As to the facts charged in the point at issue, the amended provisions of Article 328 of the Criminal Act apply pursuant to Article 2 of the Supplementary Provisions of the Criminal Act (Act No. 21307, December 31, 2025).
Factors
- 절도죄를 범한 사람이 피해자의 친족인 경우를 친고죄로 규정하면서
- 피고인은 피해자들의 직계비속(차남)으로 2024. 6. 27. 이후인 2024. 12. 10. 절도 범행을 저질렀고
- 피고인의 변호인은 제1심판결 선고 전에 제1심법원에 ‘피해자들은 피고인의 처벌을 원하지 않는다.’는 취지가 기재된 피해자들 명의의 합의서와 처벌불원서를 제출한 사정 및 형법 제328조 제1항의 개정 경과와 개정 내용 등을 종합하면
- 공소사실에는 형법 제328조 개정규정이 적용되어 피해자들의 고소가 있어야 공소를 제기할 수 있는데 피해자들은 고소를 취소하였으므로
Unofficial English translation
• providing that where a person who commits the crime of theft is a relative of the victim, the offense is subject to a complaint,
• the defendant, a lineal descendant of the victims (second son), committed the theft on December 10, 2024, which is after June 27, 2024,
• considering the circumstance that before the pronouncement of the judgment of the court of first instance, the defendant's counsel submitted to the court of first instance a written agreement in the names of the victims and a written statement of non-punishment stating in substance that "the victims do not wish the defendant to be punished," as well as the legislative history and the content of the amendment to paragraph (1) of Article 328 of the Criminal Act,
• the amended provisions of Article 328 of the Criminal Act apply to the facts charged, so that the public prosecution could be instituted only if the victims filed a complaint, and the victims withdrew their complaint,
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
This decision rested on a complaint withdrawn before the first-instance judgment was pronounced; what is the effect of a withdrawal made after that judgment has been pronounced?
The remand judgment of the Suwon District Court on the charged count will show how the amended provision and the withdrawal are applied in practice. A later Supreme Court decision on the transitional application of the amendment to proceedings already under way, or any amendment to Article 328 of the Criminal Act or its Supplementary Provisions, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “This decision rested on a complaint withdrawn before the first-instance judgment was pronounced; what is the effect of a withdrawal made after that judgment has been pronounced?” vs Independent “How should comparable intrafamilial theft committed before June 27, 2024, be treated?”
The primary reading asks about withdrawal after the first-instance judgment, whereas the independent reading asks about offenses committed before June 27, 2024.
피고인의 변호인은 제1심판결 선고 전에 제1심법원에 ‘피해자들은 피고인의 처벌을 원하지 않는다.’는 취지가 기재된 피해자들 명의의 합의서와 처벌불원서를 제출한 사정 및 형법 제328조 제1항의 개정 경과와 개정 내용 등을 종합하면 공소사실에는 형법 제328조 개정규정이 적용되어 피해자들의 고소가 있어야 공소를 제기할 수 있는데 피해자들은 고소를 취소하였으므로Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon District Court, sitting on appeal, in its judgment of 17 December 2025 (2025No5935), found the defendant guilty on the charged count for the reasons stated in that judgment, as the first-instance court had done. The Supreme Court gives no further detail of how the court below treated the agreement and the non-prosecution request in the victims' names, filed on 19 August 2025 before the first-instance judgment was pronounced.
Supreme Court standard: The Supreme Court decided the matter of its own motion, holding that the amended Article 328(1) reached this offence because the defendant was the victims' second son and committed the theft on 10 December 2024, after 27 June 2024, so that the victims' complaint was indispensable and their withdrawal before the first-instance judgment required that judgment to be quashed and the prosecution dismissed under Article 327(5) of the Criminal Procedure Act. It held that the contrary judgment below misapprehended the law on the withdrawal of a complaint in a complaint offence and was flawed in a way that affected the judgment. Because the part to be reversed stood in concurrence with the remaining convictions under the opening part of Article 37 of the Criminal Act and one sentence had been imposed, the whole judgment was reversed and the case remanded to the Suwon District Court, the Court omitting any determination of the grounds of appeal.
Distinguishing conditions
- An offence first committed before 27 June 2024, because Article 2 of the Supplementary Provisions applies the amended provision only to offences first committed after that date.
- A theft whose victim is not a kin of the offender, so that the amended Article 328(1) does not make the offence one prosecutable only on complaint.
- A case in which the victims did not withdraw their complaint before the first-instance judgment was pronounced, since this decision turned on a withdrawal made before that judgment, the victims' agreement and non-prosecution request having been filed on 19 August 2025.
Record verification notes
Set the date of the offence first against 27 June 2024 and then against Article 2 of the Supplementary Provisions, because the amended provision reaches only the first offence committed after that date although it was published and brought into force on 31 December 2025. Then establish that the victims are kin within Article 328(1) and that their withdrawal was made before the first-instance judgment was pronounced. Finally, check whether the reversed part stands in concurrence with other convictions carrying one sentence, since that is what made the whole judgment fall rather than part of it.
From the official text
Points at issue
피고인이 직계존속인 피해자들의 주거지 안방에서 금고와 재물을 절취해 갔다는 절도의 공소사실로 기소되었고, 이에 대해서는 형법 제344조에 의해 형법 제328조가 준용되는데, 헌법재판소가 2024. 6. 27. 구 형법 제328조 제1항에 대해 헌법불합치결정을 선고함에 따라 2025. 12. 31. 법률 제21307호로 개정·시행된 형법 제328조 제1항은 절도죄를 범한 사람이 피해자의 친족인 경우를 친고죄로 규정하면서, 그 부칙(2025. 12. 31.) 제2조에서 형법 제328조 개정규정을 2024. 6. 27. 이후에 최초로 지은 범죄부터 적용하도록 정한 사안에서, 피고인은 피해자들의 직계비속(차남)으로 2024. 6. 27. 이후인 2024. 12. 10. 절도 범행을 저질렀고, 피고인의 변호인은 제1심판결 선고 전에 제1심법원에 ‘피해자들은 피고인의 처벌을 원하지 않는다.’는 취지가 기재된 피해자들 명의의 합의서와 처벌불원서를 제출한 사정 및 형법 제328조 제1항의 개정 경과와 개정 내용 등을 종합하면 공소사실에는 형법 제328조 개정규정이 적용되어 피해자들의 고소가 있어야 공소를 제기할 수 있는데 피해자들은 고소를 취소하였으므로, 원심은 제1심판결을 취소하고 공소사실에 대해 공소기각판결을 선고하였어야 한다는 이유로, 이와 달리 제1심판결과 마찬가지로 유죄로 판단한 원심판결에 친고죄에서 ‘고소의 취소’에 관한 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
The defendant was prosecuted on the charge of theft, on the ground that he stole a safe and other valuables from the main room of the residence of the victims, who are his lineal ascendants; Article 328 of the Criminal Act applies mutatis mutandis to such offense under Article 344 of the Criminal Act; after the Constitutional Court, on June 27, 2024, pronounced a decision of nonconformity with the Constitution with respect to the former paragraph (1) of Article 328 of the Criminal Act, paragraph (1) of Article 328 of the Criminal Act, as amended and enforced on December 31, 2025 by Act No. 21307, provides that where a person who commits the crime of theft is a relative of the victim, the offense is subject to a complaint, while Article 2 of its Supplementary Provisions (December 31, 2025) provides that the amended provisions of Article 328 of the Criminal Act shall apply starting from crimes committed for the first time after June 27, 2024; in a case where the defendant, a lineal descendant of the victims (second son), committed the theft on December 10, 2024, which is after June 27, 2024, and where, considering the circumstance that before the pronouncement of the judgment of the court of first instance, the defendant's counsel submitted to the court of first instance a written agreement in the names of the victims and a written statement of non-punishment stating in substance that "the victims do not wish the defendant to be punished," as well as the legislative history and the content of the amendment to paragraph (1) of Article 328 of the Criminal Act, the amended provisions of Article 328 of the Criminal Act apply to the facts charged, so that the public prosecution could be instituted only if the victims filed a complaint, and the victims withdrew their complaint, it was argued that the court below should have vacated the judgment of the court of first instance and pronounced a judgment of dismissal of the prosecution on the facts charged; and in a case where the Supreme Court held that the judgment of the court below, which, contrary to this, found the defendant guilty in the same manner as the judgment of the court of first instance, is in misapprehension of legal principles concerning the "withdrawal of a complaint" in an offense subject to a complaint
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon District Court.
Provisions referred to
구 형법(2025. 12. 31. 법률 제21307호로 개정되기 전의 것) 제328조 제1항, 형법 제328조 제1항, 제329조, 제344조, 부칙(2025. 12. 31.) 제1조, 제2조, 형사소송법 제327조 제5호
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger