[간통][집17(3)형,051]
Notwithstanding the fact that the spouse is unable to file a complaint due to the use of livers, when there is a public prosecution due to such complaint, a judgment dismissing the public prosecution shall be rendered.
If a criminal complaint was filed in spite of the fact that a spouse was unable to file a criminal complaint due to the use of livers, such criminal complaint does not have effect, and the public prosecution due to such criminal complaint is null and void in violation of the provisions of the law, and thus the public prosecution should
Article 327 of the Criminal Procedure Act
Defendant 1 and one other
Prosecutor
Seoul Criminal Area of the first instance, Seoul Criminal Area of the second instance, Seoul Criminal Area of the second instance, June 11, 1969
The original judgment shall be reversed, and
The case shall be remanded to the Seoul Criminal Court ( single judge).
The Prosecutor’s Grounds of Appeal No. 1
The summary of the facts charged against the defendant, etc. is that the defendant 1 is a father of the non-indicted, and the defendant 2 was aware that the defendant 1 was a legally married spouse, and around January 12, 1969, at around March 12, 1969, the defendant 1 had a single sexual intercourse from the Olimp hotel located in Incheon Metropolitan City, Gyeonggi-do, and up to March 13 of the same year with an average of about 20 times per annum and about 100 times per 3 days per average of the 7 103 Gao-dong Hongdong Culture Village, Seodaemun-gu, Seoul.
According to each evidence admitted by the original judgment, the defendant 1 and the non-indicted 1's spouse agree to divorce between them on December 1968, and prepare a divorce statement and receive it to the competent authority, but they did not receive it at the expense of the documents. In such a case, even if the divorce did not take effect thereafter, they shall be deemed to include the intention of implied consent in relation to the relation between the parties with others. Therefore, it shall not be accused of a complaint because it constitutes the use of the adultery as referred to in the proviso of Article 241 (2) of the Criminal Act. Thus, the complaint shall not be effective, and it shall not be deemed that the defendant et al. was illegal at the time of the act, and thus, it shall not be deemed that the defendant et al. was not guilty.
However, in spite of the fact that a defendant cannot file a complaint by taking advantage of livers, if the complaint was filed, it shall not be effective. Accordingly, the prosecution procedure due to the complaint constitutes null and void because it constitutes a violation of the provisions of law and thus, the prosecution procedure should be dismissed pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act. However, there is an error in the application of the law as to the facts recognized by the original judgment that found the defendant not guilty. Therefore, the arguments are reasonable, and the original judgment shall not be dismissed.
Therefore, the case shall be remanded to the Seoul District Court ( single judge) which is the original judgment. It is so decided as per Disposition by all participating judges.
Justices of the Supreme Court (Presiding Judge) Dog-Jak Kim Kim-nam Kim Young-gu