간통
All appeals by the Defendants are dismissed.
1. The gist of the grounds of appeal is that prior to the occurrence of the instant case, the marriage life between the Defendant A and the complainant was broken down and the intention of divorce was agreed, and thus, the complainant’s prior consent was made. Therefore, the complainant’s complaint is inappropriate, and thus, the judgment below convicting the Defendants, which erred by misapprehending the legal principles on the inter-Korean usage or by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.
2. Where the judgment party has no intention to continue a matrimonial relationship 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-life, which is the prior consent to the adultery, shall be deemed to be 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 constitute a simple use (see, e.g., Supreme Court Decision 2008Do984, Jul. 9, 2009).