[2] The case holding that in a case where the complainant filed a divorce lawsuit against the defendant and the defendant filed a complaint for a concurrent crime, but the defendant was married again with the defendant during the appellate trial, the indictment procedure for a concurrent crime constitutes a case where it is null and void in violation of the statutory provisions

[2] The case reversing the judgment of the court below and rendering a judgment dismissing the prosecution directly on the ground that the complainant filed a divorce lawsuit against the defendant, filed a complaint against the defendant as a crime of adultery, filed a divorce report following the agreement divorce, and married again with the defendant during the appellate trial, and the prosecution procedure for the crime of adultery constitutes null and void in violation of the legal provisions

1. Article 229(1) of the Criminal Procedure Act provides that “A complaint shall not be filed unless the marriage is annulled or a divorce lawsuit is instituted” with respect to a crime of adultery which can be prosecuted only upon a complaint filed by the spouse under Article 241(2) of the Criminal Act. Such conditions shall be maintained from the time of prosecution to the time of the conclusion of trial (see, e.g., Supreme Court en banc Decision 75Do1449, Jun. 24, 1975; Supreme Court Decision 2008Do5335, Aug. 21, 2008; etc.). In the event a complainant who was divorced against the defendant and the defendant again married before the trial for the crime of adultery against the defendant is concluded, the notification suit between the defendant loses the valid condition that there is no marital relationship, and thus, constitutes a case where a prosecution procedure becomes null and void in violation of the provisions of the Act.

2. The summary of the facts charged of this case is as follows: "At around 00:30 on February 22, 2008, the defendant has been a spouse who has reported the marriage with the complainant, who has been sexual intercourse with Co-defendant 2 of the first instance court at around 815, 30 on March 18, 2008, and who had been sexual intercourse with the defendant at around 01:0 on June 18, 2008, the first instance court had been sexual intercourse with Co-defendant 2 of the first instance court at around 305, Seocheon-gu, Seoul, Seoul, and at around 01:0 on June 18, 2008, the defendant and the defendant had been sexual intercourse with the defendant at the first instance court at around 305, respectively. In light of the reasoning of the judgment below and the record, the defendant's indictment procedure was null and void by violating the legal principles as seen earlier.

In contrast, the court below affirmed the judgment of the court of first instance which found the defendant guilty of the charges of this case by deeming that the indictment of this case is lawful. In so determining, the court below erred by misapprehending the legal principles as to the validity condition of a simple notification suit, which affected the conclusion of the judgment. The ground of appeal pointing this out

3. Therefore, the judgment of the court below is reversed, but this case is deemed sufficient to be judged based on the records of trial and the evidence examined up to the court below, and thus, it is decided directly by Article 396 of the Criminal Procedure Act.

The summary of the facts charged in this case is as seen earlier. Since the procedure of prosecution in this case is invalid in violation of the provisions of law, the part against the defendant in the judgment of the court of first instance is reversed and the prosecution in this case is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating

Justices Yang Sung-tae (Presiding Justice)