[2] In a case where both parties display their intention of provisional, temporary, and conditional divorce without agreement with the intention of divorce, whether it constitutes a cross-conceptic paper (negative)

[3] The meaning, method, and requirements for recognition in the crime of adultery

[4] Characteristics and degree of proof of adultery in the crime of adultery

[2] In a case where the parties to a marriage have no intention to continue the marriage and there exists a mutual agreement with the intention of divorce, even if the marital relationship remains legally, the declaration of intention corresponding to the end of the agreement, which is the prior consent to the adultery, is included in the agreement. However, in the absence of such an agreement, the provisional, temporary, and conditional declaration of intention of divorce does not constitute the cross-section use even if the intention of divorce is expressed by both parties.

[3] In the crime of adultery, one’s spouse’s act of expressing his/her intention to renounce a bad faith and not to hold the other party liable for the act with the other party’s knowledge of the other party’s marital relation, and it does not include any restriction on the method. However, in order to recognize a certain behavior or expression of intention to express an appraisal as a document, first, it should be done voluntarily with the other party’s awareness of the inter-party marital relation, and second, it should be expressed in such a way that the true will to continue a marital relation is apparent and reliable regardless of the other party’s communication.

[4] In the case of a crime of adultery between men and women, it is difficult to expect the existence of direct physical evidence or witness since the act is conducted under the circumstances in which it is difficult to identify the existence of secret or external evidence between the parties, and thus, it is difficult to expect the existence of a witness. Therefore, if it is deemed that the crime was proved by comprehensively taking account of all kinds of indirect evidence as to

1. According to the reasoning of the lower judgment, the lower court determined that: (a) on June 23, 2005, the complainant issued a divorce lawsuit document and a written complaint to the police officer dispatched after reporting at the Maroccoel on 112 on June 23, 2005; (b) the police officers belonging to the Seoul Song-gu Police Station who received the complaint transferred the instant case to the investigation department by voluntarily acting together with the Defendants; (c) Nonindicted Party 1, a police officer on duty of the dispatching Police Station, heard that “I would decide whether to accept a written complaint by reporting to the Defendants. I would like to agree with the Defendants; (d) Nonindicted Party 2 sent the written complaint to the complainant on June 23, 2005, Nonindicted Party 2, a police officer on duty, who notified the Defendant of the fact that he/she would not have been subject to punishment by submitting the written statement to the police officer on June 23, 2005, stating that he/she could not have received the written complaint to the Defendants.”

A complaint refers to an expression of intent to prosecute a criminal by reporting a criminal fact to an investigation agency by the victim of a crime and other persons having authority to file a complaint. It is not a complaint because a report on a simple damage is not an expression of intent to prosecute or punish. In addition, if a complaint is not withdrawn after the victim clearly expresses his/her wish to punish by submitting a complaint, the complaint filed by the victim is valid even if the victim did not wish to punish before the complaint (see Supreme Court Decision 93Do1620, Oct. 22, 1993, etc.).

In light of the above legal principles, even if the complainant delivered a written complaint to the police officer dispatched to the scene while reporting the criminal facts on the day of the instant case, if the complainant arrives at the Song Police Station and received the final written complaint and return of the written complaint, it cannot be deemed that the written complaint is legally accepted by the investigative agency and the criminal complaint becomes effective. Furthermore, even if the complainant expressed the Defendants at the time of the accusation, insofar as there was no legitimate complaint, unless there was a legitimate complaint, it cannot be deemed that the instant complaint filed for three months thereafter contravenes Article 232(2) of the Criminal Procedure Act, which provides for the prohibition of inventory.

Although this part of the judgment of the court below is not proper, it is justified in the conclusion that the complaint of this case is lawful. There is no error in the misapprehension of legal principles as to the validity of complaint and revocation of complaint as otherwise alleged in the ground of appeal.

2. Where the parties to a marriage have no intention to continue the marriage and there exists a mutual agreement with the intention of divorce, even though the marital relationship remains legally, the declaration of intention corresponding to the end-of-life, 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 of divorce is expressed by both parties on a provisional, interim, and conditional basis, it does not fall under the case of inter-livering use (see Supreme Court Decision 2000Do868 delivered on July 7, 200, etc.).

Examining the reasoning of the judgment below in light of the above legal principles, the court below, citing the reasoning of the judgment of the court of first instance, acknowledged facts as stated in its holding, and, on the condition that the complainant is liable for the failure of marriage, expressed his intention of divorce on the condition that he is recognized as Defendant 1, it is justifiable to conclude that there was a mutual agreement between the complainant and Defendant 1 with the intention of divorce, which includes an implied intention, even if there exists a relationship between the complainant and Defendant 1 with a different interest. In so doing, there is no error of law by misapprehending the legal principles

3. In the crime of adultery, one’s spouse’s act, knowing that he/she would waive a malicious sentiment with the intention to continue the marriage and will not be held responsible for the other party’s act with the knowledge of the other party’s communication, is not a way to restrict the method, since it may not be explicitly or implicitly. However, in order to recognize a certain behavior or expression of intent expressing an appraisal as a document, first, it should be voluntarily performed with the awareness of the other party’s communication, and second, regardless of the fact of communication, it should be expressed in such a way that the true will to continue the marriage is apparent and reliable (see Supreme Court Decision 200Do868, Jul. 7, 200, etc.).

According to the reasoning of the first instance judgment cited by the court below, the circumstance immediately following the instant case is that the complainant requested the police officer on duty to change the time to talk with the Defendants on the day of the instant case and received the written complaint, and then he went to a nearby lot hotel with Defendant 1, but the business hours are terminated, again, Defendant 2 and Defendant 1 were returned back as they were, while three persons come to talk and talk at the wind sway under the sway swayfing place, and Defendant 2 got home as they first come to the wind. It is difficult to view the circumstance before and after the complainant reached the instant complaint even if it was added to such facts, it is difficult to view that the complainant was negligent in the Defendant 1’s instant intercompeting act.

The judgment of the court below in the same purport is just, and there is no error in the misapprehension of legal principles as to the adultery.

4. The conviction in a criminal trial ought to be based on evidence with probative value which can lead a judge to feel true beyond a reasonable doubt. If there is no evidence to form a conviction, the defendant’s interest should be determined as a result of the defendant’s conviction even if there is doubt that the defendant is guilty. However, such conviction does not necessarily have to be formed by direct evidence, unless it violates the empirical and logical rules, and even if indirect evidence does not have full probative value as to the crime individually, if it is deemed that there exists a comprehensive probative value as to the whole evidence, if it is deemed that there is a comprehensive probative value as a result of mutual examination, even if it does not exist under mutual relation, even if indirect evidence does not have full probative value as to the crime (see Supreme Court Decision 2001Do4392, Nov. 27, 2001). Meanwhile, in a crime between men and women, the act is difficult to identify secrets or external identity between the parties, and thus, it is difficult to expect the existence of a witness’s indirect evidence or physical evidence before and after the judgment.

The court below, after compiling the adopted evidence, found facts as stated in its holding, and found Defendant 2 guilty of the facts charged in this case against the Defendants on the premise that Defendant 1 was aware that he was his spouse. In light of the above legal principles and records, the court below did not err by misapprehending the legal principles as to the establishment of a crime of adultery or by violating the rules of evidence as otherwise alleged in the ground of appeal.

5. 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)