[2] The case affirming the judgment of the court below which held that a husband Gap's complaint filed by the mother Byung against the adultery of the spouse Eul who became a guardian upon the declaration of incompetency due to the husband Gap's status as a plant Gap was lawful as an indictment requirement for the crime of adultery

Article 241 of the Criminal Act is not in violation of the Constitution (see, e.g., Constitutional Court en banc Order 2007HunGa17, 21, 2008HunGa7, 26, 208HunBa21, 47, Oct. 30, 2008). Thus, the ground of appeal on the premise that the above provision is null and void because it violates the Constitution is not acceptable.

On the other hand, Article 241 (2) of the Criminal Code provides that the crime of adultery shall be prosecuted only upon the complaint of the spouse. The purpose of the crime of adultery is to infringe upon the other spouse's right to the other spouse's emotional harm and to discuss the crime only upon the victim's complaint. Article 226 of the Criminal Procedure Act provides that where the legal representative of the victim or relative of the legal representative is the suspect, a relative of the victim may file a complaint independently (see Supreme Court Decision 67Do878, Aug. 29, 1967).

According to the reasoning of the judgment below, the defendant's spouse, non-indicted 1 was declared incompetent as a plant, and the defendant was appointed as a guardian, and the non-indicted 2, the mother of non-indicted 1, filed the complaint of this case. According to the above legal principles, the complaint filed by non-indicted 2 is lawful as an indictment requirement for the crime of adultery. Thus, the judgment of the court below to the same effect is just and there is no error in the misapprehension of legal principles as to the right to file

In addition, according to Article 229(1) of the Criminal Procedure Act, a complaint shall not be filed unless the marriage is annulled or a divorce lawsuit is instituted. Thus, the complaint shall be deemed as valid, and such conditions shall be met from the time of the institution of public prosecution to the time of the conclusion of trial. Thus, the complaint which does not meet the above conditions shall be deemed as a complaint in violation of the above provisions, as pointed out in the grounds of appeal. However, as long as the judgment accepting the claim by filing a divorce lawsuit against the defendant on behalf of the non-indicted 1 as a special representative, the argument in the grounds of appeal that the above complaint will be unlawful due to the extinction of the divorce lawsuit cannot be accepted.

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

Justices Cha Han-sung (Presiding Justice)