[2] The case holding that it cannot be deemed that there was a final usage for the adultery in the case of withdrawal or withdrawal of a divorce lawsuit after filing an application for confirmation of the intention of divorce

[2] The case holding that even if one of the parties to a marriage submitted an application for confirmation of intention of divorce, it is difficult to view that there exists the agreement between the intention of divorce in the event that the party to a marriage withdraws the application during the deliberation period prior to divorce, and if one of the parties thereafter filed a divorce lawsuit and submitted the written withdrawal, it can be deemed that the declaration of intention of divorce has been effectively withdrawn even if the other party responded to the purport that the claim of divorce was previously accepted or consented to withdrawal of the lawsuit, and thus, it cannot be deemed that the application for confirmation of intention of divorce and the filing of the lawsuit for divorce have been final

1. As to the Defendants’ grounds of appeal

In a case where the parties to a marriage have no longer intent to continue a matrimonial relationship and the parties agree with the intention to divorce, even if the marital relationship remains legally, the declaration of intention corresponding to the end, which is the prior consent to the adultery, shall be deemed as included in the agreement. However, in the absence of such agreement, even if the intention to divorce is expressed by both parties on a provisional, temporary, and conditional basis, it does not fall under the case of adultery (see Supreme Court Decision 2000Do868, Jul. 7, 2000, etc.).

According to the reasoning of the judgment below and the records, on December 29, 2006, Defendant 1 and the non-indicted 1’s spouse submitted to the Seoul Family Court a written application for confirmation of the intention of divorce attached to the written application for divorce. The non-indicted 1’s withdrawal of the above application with intent to continue the marriage on January 15, 2007, when the agreement was in progress prior to the so-called divorce, the non-indicted 1 filed a lawsuit claiming divorce and consolation money, etc. against the defendants on January 23, 2007 on the same day when the non-indicted 1 filed a complaint against the defendants on February 22, 2007. However, on March 22, 2007, the non-indicted 1 submitted a written statement to the effect that the above lawsuit for divorce was withdrawn on March 22, 2007 by submitting the above written statement to the effect that the non-indicted 1 revoked the divorce on March 22, 2007.

According to the above facts, even if Defendant 1 and the Nonindicted Party submitted the application for confirmation of the intention of divorce in this case, so long as the application for divorce has been withdrawn with the intention of continuing the marriage during the period of deliberation by the Nonindicted Party, it is difficult to view that there was an obvious agreement with the intention of divorce including the intention of implied consent even in a relation with other different outcomes. If the Nonindicted Party filed a divorce lawsuit against Defendant 1 before and submitted the written withdrawal of the above divorce lawsuit, Defendant 1 responded to the purport that Defendant 1 recognized the non-indicted’s claim for divorce before the submission of the written withdrawal and sent the written withdrawal of the divorce lawsuit, the agreement between the non-indicted 1’s intention of divorce was temporarily withdrawn, and even if the above divorce lawsuit continued with the non-indicted’s withdrawal of the lawsuit, it shall be deemed that the withdrawal of the lawsuit was valid by the submission of the above written withdrawal, and since the above divorce lawsuit continues on the condition that Defendant 1 was responsible for the failure of marriage. Thus, it cannot be deemed that the above agreement was an act of the adultery in this case solely based on the application for confirmation of the intention of divorce.

Therefore, we affirm the judgment of the court below which found the defendants guilty of the facts constituting the crimes in this case, and there is no violation of law as to the violation of the proviso of Article 241 (2) of the Criminal Act or the misapprehension of legal principles as to the withdrawal of the declaration of intention for the adultery.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment of the court below in light of the records, although there are some doubtful circumstances to deem that the Defendants committed the instant simple act among the Defendants, it is not sufficient to acknowledge that the Defendants had sexual intercourse at the time, time, and place indicated in the facts charged, and it is acceptable to maintain the judgment of the court of first instance that acquitted the Defendants on this part on the grounds that there is no other evidence to acknowledge it, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)