(영문) 서울중앙지방법원 2009.05.20 2008노825



The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four months.

except that the ruling shall be made for one year from the date of the final judgment.


1. Summary of grounds for appeal;

A. In light of the illegality of the indictment (1) and the attitude that the complainant and A sent to the defendant, the complainant and A conspired to commit embezzlement against I, etc., it is reasonable to view that the complainant used the adultery between the defendant and A.

In addition, in light of the circumstances leading up to which the complainant filed the instant complaint and the relationship between the complainant and A after the instant complaint were filed, the complainant may be deemed to have filed the instant complaint with the intention to punish A without the intention to punish A, and it is not so.

Even if there is a reasonable ground to view that there was an ex post facto mistake between A and the defendant.

Therefore, the accusation of this case by the complainant is not effective as it is an accusation against the proviso of Article 241(2) of the Criminal Code providing that "no complaint shall be filed in the event that the spouse has used or lost the adultery."

(2) On October 13, 2004, the complainant sent to the defendant a note containing a serious desire for the defendant on the top of a police officer A, and on November 13, 2004, the complainant called "on the part of the husband while she is slick with the driver A and she was her husband while she was slick with the driver while she was slick with the driver." It is reasonable to view that the complainant was aware of the defendant's communication with the defendant around November 13, 2004, which was about the number of physical parts and the frequency of communication between the defendant and the defendant.

Nevertheless, on May 17, 2005, the complainant filed a complaint with the defendant and A on May 17, 2005. The complaint in this case is illegal complaint with the lapse of the period of filing the complaint.

(3) In the end, the prosecution of this case constitutes a ground for dismissing a public prosecution in violation of the provisions of the Act (Article 327 subparag. 2 of the Criminal Procedure Act) and thus constitutes a ground for a judgment dismissing a public prosecution, the lower court convicted the Defendant of the facts charged, thereby adversely affecting the conclusion of the judgment by misapprehending the legal principles or by misapprehending the legal principles.

B. Unreasonable sentencing.