A. Before August 2012, the Defendants’ assertion of mistake of facts or misapprehension of legal principles, the Defendants’ assertion of the crime of this case, there was an obvious agreement between Defendant A and his spouse with the intention of divorce, and thus, the adultery ought to be deemed to have been used.

Therefore, the judgment of the court below which pronounced guilty is erroneous in the misapprehension of legal principles.

B. The lower court’s sentence on Defendant B’s assertion of unfair sentencing (two years of suspended sentence in six months of imprisonment) is too unreasonable.

2. Determination

A. If the parties to the judgment on the assertion of mistake of facts or misapprehension of legal principles have no intention to continue the marriage and there exists a mutual agreement with the intention of divorce, even if the marital relationship remains legally, it shall be deemed that the agreement is included in the agreement. However, in the absence of such agreement, even if the intention of divorce is expressed by both parties on a provisional and temporary basis, it does not constitute a case of inter-concepting, even if the intention of divorce is expressed by both parties (see Supreme Court Decision 2008Do984, Jul. 9, 2009). The following circumstances acknowledged by the court below and the evidence duly adopted and investigated by this court (see Supreme Court Decision 2008Do984, Jul. 9, 2009). In other words, Defendant A’s spouse D returned property to the lower court prior to the Defendant’s act of inter-concepting. However, the lower court did not agree with the objective intention of Defendant A, stating that the Defendant A had no intention to proceed with the agreement between the two parties.