혼인빙자간음
The judgment of the court below is reversed.
The defendant shall be innocent.
1. The summary of the grounds for appeal was determined by the Constitutional Court that Article 304 of the Criminal Act provides that "a person who has sexual intercourse by deceiving a female who does not habitually engage in sexual intercourse under the pretext of marriage" violated the Constitution, and accordingly, the provision of the penal law becomes retroactively null and void. Therefore, the facts charged against the defendant does not constitute a crime.
2. Determination
A. The summary of the facts charged is that the Defendant, from around September 197, 1997, went back on the premise of marriage between the victim C (n, 31 years old, and 31 years old) and the Defendant, from around April 200, he/she had the intention to marry with the victim even though he/she had no intention to marry with his/her female on the condition that he/she promised to marry with the victim on November 2003.
1. On July 21, 2004, at the same time, the victim and the victim once sexual intercourses in the open room where the two sides of the Pyeongtaek-si, Kim Chang-ri are located on the same day;
2. The same year;
8. Around 15:00, the Defendant’s office located in Young-si E had sexual intercourse with the victim one time at the office of the Defendant, thereby having sexual intercourse with the victim, who is a female who has not been habitually engaged in sexual intercourse, under the pretext of each marriage.
B. The lower court found the Defendant guilty of the instant facts charged by comprehensively taking account of the macroscopic evidence.
C. On November 26, 2009, the Constitutional Court rendered a decision that "a person who induces a female who does not habitually engage in sexual intercourse under the pretext of marriage" in Article 304 of the Criminal Act, which is a applicable provision to the facts charged in this case, is in violation of the Constitution (the Constitutional Court Order 2008Hun-Ba58, 2009Hun-Ba191, Nov. 26, 2009). In a case where the penal law or legal provision becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the pertinent provision, constitutes a case that does not constitute a crime (see, e.g., Supreme Court Decision 2001Do3495, Mar. 10, 2005). The above facts charged constitute a case that does not constitute a crime and thus, the defendant shall be acquitted. In this regard, the defendant shall be found guilty.