CONTENTS
- 1. Sentencing for Assault | How the Case Began
- - Marital Conflict Leading to a Complaint
- 2. Sentencing for Assault | The Attorney's Response Strategy
- - Reconstructing the Situation at the Time Based on the Client's Statement
- - A Full Rebuttal of the Assault Charge
- - Emphasizing the Lack of Evidence for the Child Abuse Charge
- - A Statement of Wish Not to Have the Offender Punished Achieved through Settlement Assistance
- 3. Sentencing for Assault | The Court's Determination Was 'Dismissal of Prosecution'
- 4. Sentencing for Assault | Points to Note
- - Sentencing for Assault and the Meaning of a Statement of Wish Not to Have the Offender Punished
- - The Importance of Settlement in a Crime Not Punishable Against the Victim's Will
1. Sentencing for Assault | How the Case Began
The client who inquired about sentencing for assault stated that, in a situation he had taken lightly as a minor marital conflict, his wife had filed a complaint of assault against him.
Because the possibility of criminal punishment grows once a conflict within the family escalates into a charge of assault or child abuse, requiring consideration of the sentencing for assault, the assault specialist attorney began a detailed consultation with the client.
Marital Conflict Leading to a Complaint
The client, who had frequent marital conflicts, was subjected to a complaint of assault on the ground that he had thrown objects on several occasions whenever a conflict arose.
The wife asserted that the client had cursed at her and thrown objects, and that, because the conduct had taken place in front of their minor child, it had adversely affected the child's emotional development and therefore also constituted a violation of the Child Welfare Act (child abuse).
2. Sentencing for Assault | The Attorney's Response Strategy
The attorney noted that, if the “act of throwing objects” stated in the complaint were true, the client could face criminal punishment, and that if a child abuse charge were also applied, he would become subject to even heavier punishment.
This is because assault is not necessarily established only where there is direct physical contact with the body, and it may also be established where physical force is exerted against the other party so as to cause fear.
Reconstructing the Situation at the Time Based on the Client's Statement
First, the attorney reconstructed the specific situation at the time of the incident in the course of a detailed consultation with the client about the sentencing for assault.
As a result, the client was able to recall that some of the facts in the complaint had been exaggerated or distorted.
He consistently stated that he had not thrown an object toward his wife, but had merely set an object down roughly in another location while emotionally agitated.
A Full Rebuttal of the Assault Charge
Based on the facts the client recalled, the attorney pursued a response strategy of fully rebutting the assault charge stated in the complaint.
The attorney further argued that it is unjust for emotional conduct that commonly occurs in the course of a marital conflict to lead to criminal punishment, and that the intent or exertion of force required for assault was difficult to recognize.
Emphasizing the Lack of Evidence for the Child Abuse Charge
As to the child abuse charge that the wife asserted on the ground that he had engaged in such conduct in front of the child, the attorney also emphasized that objective evidence was lacking.
The attorney's argument was accepted, and the client received a non-disposition decision on the child abuse charge on the ground of insufficient evidence.
A Statement of Wish Not to Have the Offender Punished Achieved through Settlement Assistance
On the other hand, taking into account that the client and his wife were in fact in a marital relationship, the attorney determined that concluding the case through an amicable settlement, rather than carrying it through to a court judgment, would be the most realistic and positive resolution for the client.
Accordingly, the attorney actively provided assistance so that the emotional confrontation between the two sides could be eased and a reasonable settlement could be reached.
Although the client and his wife were spouses, given the concern that a face-to-face meeting could worsen the emotional conflict, the assault specialist attorney proceeded with the settlement by conveying and explaining the content of the mediation in detail.
As a result, the client decided to pay settlement money to his wife, and the wife accepted it and submitted a statement of her wish not to have him punished.
3. Sentencing for Assault | The Court's Determination Was 'Dismissal of Prosecution'
When the settlement agreement containing the wife's wish not to have the offender punished was submitted to the court, the court determined that prosecution could not be maintained against the victim's will, and it rendered a judgment of “dismissal of prosecution.”
A dismissal of prosecution is when the court terminates the trial, before determining whether the offense is established, on the ground that the prosecution lacks lawfulness or that a requirement for the proceedings is missing.
Legal Basis | Grounds for Dismissal of Prosecution |
| Article 327 of the Criminal Procedure Act | In the following cases, a judgment dismissing the prosecution shall be pronounced.
1. Where there is no jurisdiction to try the defendant |
Having escaped the risk of a high sentence for assault, the client conveyed his thanks to the attorney, stating that he and his wife had agreed, through conversation, to make efforts together to maintain a harmonious marital relationship.
4. Sentencing for Assault | Points to Note
If the charge of assault is recognized, it is subject to imprisonment for not more than two years, a fine not exceeding 5 million won, detention, or a minor fine.
However, because assault is a crime not punishable against the victim's will, where the victim does not wish to have the offender punished, the offender may be excluded from criminal punishment.
Sentencing for Assault and the Meaning of a Statement of Wish Not to Have the Offender Punished
A statement of wish not to have the offender punished is a document in which the victim expresses in writing the intent that the offender not be subjected to criminal punishment.
The victim may submit it to the investigative authorities to make a legal expression of the intent that the offender not be subjected to criminal punishment.
In this way, where a statement of wish not to have the offender punished is submitted, the offender is not punished for assault, and thus escapes the risk of having to worry about the sentencing for assault.
The Importance of Settlement in a Crime Not Punishable Against the Victim's Will
A crime not punishable against the victim's will is an offense for which the offender cannot be punished if the victim does not wish to have the offender punished.
For that reason, the submission of a statement of wish not to have the offender punished through a settlement is a very important factor in an assault case.
In this way, in the case of a crime not punishable against the victim's will, the offender is not punished where a settlement is reached, whereas if no settlement proceeds, the possibility of criminal punishment increases even for minor harm.
Even where one was on close terms with the victim, conducting the settlement directly can worsen matters emotionally, and considerable risk follows.
If you are placed in a related situation in which you must proceed with a settlement, we encourage you to obtain the mediation and assistance of a specialist through a 🔗legal consultation reservation.
This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
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