간통
The defendant is innocent. The summary of this judgment shall be notified publicly.
1. On March 31, 2012, the Defendant knew that he/she is a spouse of A, the summary of the facts charged was sexual intercourse with the above A at his/her own house located in Gyeyang-gu Incheon, Incheon, E apartment 522 Dong 2010 Dong, 522 Dong, and 2010.
2. The prosecutor charged a public prosecution with regard to the facts charged in the instant case by applying Article 241(1) of the Criminal Act, and the judgment subject to a retrial, which was found guilty, became final and conclusive on April 25, 2013.
On February 26, 2015, the Constitutional Court declared that Article 241 of the Criminal Act, including the applicable provisions, is unconstitutional.
[The Constitutional Court Decision 209Hun-Ba17,205, 2010Hun-Ba194, 2011Hun-Ba4, 2012Hun-Ba4, 2012Hun-Ba5, 255, 411, 2013Hun-Ba139, 161, 267, 276, 342, 365, 2014Hun-Ba53, 464, 201Hun-Ba31, 2011Hun-Ba31, 2014Hun-Ga4, 2014Hun-Ga4, which was decided as unconstitutional on February 26, 2015] The Constitutional Court Decision 201Hun-Ba (see Article 47(3) of the Constitutional Court Act), which retroactively loses its effect on the day following the date on which the previous decision was made (see Article 241 of the Criminal Act). Thus, the Constitutional Court Decision 2008Hun-Ba107, 308,207.
In a case where the provision of the penal law becomes retroactively null and void due to the decision of unconstitutionality, the case charged by applying the pertinent provision constitutes a crime not committed (see, e.g., Supreme Court Decisions 91Do2825, May 8, 1992; 2005Do8317, Jun. 28, 2007) and thus, the applicable provision of the facts charged in this case retroactively lost its validity.
3. In conclusion, the facts charged in this case constitute a case that does not constitute a crime, and thus, they are acquitted under the former part of Article 325 of the Criminal Procedure Act.