Of the facts charged in the instant case, the court below rendered a judgment dismissing the prosecution on the ground that the delegation of the passage between the parties causing the abortion as charged does not bring about a serious obstacle to the Defendant’s rational exercise of the Defendant’s right of defense, since it is clear in light of the purport of the entire pleadings, and the overall specific nature of the case is inevitable. However, the court below erred by misapprehending the legal principles on the specification of the facts charged, thereby adversely affecting the conclusion of the judgment.

2. Ex officio determination

Before the judgment on the grounds for appeal was made ex officio, the prosecutor applied for changes in the indictment with the content that "inwards" changed from among the facts charged as to the issue of adulterys to "in the Republic of Korea", and the subject of the judgment was changed by this court's permission, so this part of the judgment of the court below was no longer maintained.

3. Conclusion

Therefore, since the dismissal part of the judgment below is based on the ex officio reversal as seen above, without examining the prosecutor's assertion of misapprehension of the legal principles, the part of the judgment below's dismissal pursuant to Article 364 (2) of the Criminal Procedure Act is reversed and it is again decided as follows.

(c) sound;

1. Summary of the facts charged as to the adultery

The defendant is a person who is a spouse who has completed a marriage report with F on May 18, 199.

On April 2009, the defendant sent to the defendant's name in the Republic of Korea on the last day and the first sex in the past.

2. Determination

A. The purport of Article 254(4) of the Criminal Procedure Act provides, "The facts charged shall be stated clearly by specifying the time, place, and method of a crime." The purpose of Article 254(4) of the Criminal Procedure Act is to avoid trial efficiency and swiftness by limiting the object of the trial, at the same time, to facilitate the exercise of the defendant's right to defense by specifying the scope of defense. As such, the prosecutor's time and time goes against double prosecution or prescription, as to whether the time and time is in conflict with territorial jurisdiction, as to the place, and as to whether the method falls under territorial jurisdiction, the specific facts constituting the elements of the crime shall be stated in order to distinguish the facts from the other facts. However, some of the elements for the specific purpose are somewhat unclear.

Even if it can be specified by other matters mentioned above, the effect of prosecution does not affect the validity of the indictment. However, even in such a case, it should not seriously interfere with the defendant's reasonable exercise of the defendant's right of defense in light of the basic purport of the indictment specified in the facts charged. Meanwhile, since the crime of adultery under Article 241 of the Criminal Act is established by each sexual intercourse, one of the crimes of adultery is established by specifying the date, time, place, and method mentioned in the facts charged to make it distinguishable from other facts (see, e.g., Supreme Court Decision 2005Do1014, Jun. 24, 2005).

B. According to the records, the defendant's abortion by undergoing an artificial abortion surgery on May 7, 2009, and the fetus can be acknowledged that it was a pregnant six weeks' fetus between a male and a female other than her husband. According to the above facts, even if it can be presumed that there was a sexual intercourse, which is a cause of pregnancy and a male other than her husband, six weeks before the time of the abortion, from the time of the abortion, the above facts charged cannot be viewed as having a specific place of crime so that it can identify whether it falls under territorial jurisdiction, and it is not specified as the other party of the adultery. In light of the basic purport and legal principles of the facts charged as mentioned above, and the contents and circumstances of this part of the facts charged, in light of the above facts charged, it cannot be deemed that this part of the facts charged is limited to the court or it does not interfere with the defendant's exercise of his right to defense.

Therefore, this part of the facts charged constitutes a case where the indictment procedure is null and void in violation of the provisions of law because there is no specific statement of crime as a prison crime, and thus, the prosecution is dismissed pursuant to subparagraph 2 of Article 327 of the

Judges Doese

Judges Kim Gin-young