The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (the mistake of facts or misapprehension of legal principles, and unreasonable sentencing)

A. Before the mistake of facts or misapprehension of legal principles, there was a mutual agreement between A and his spouse before the instant case, and therefore D constitutes a case where D uses the adultery. Therefore, D’s complaint constitutes a complaint against the proviso of Article 241(2) of the Criminal Code providing that “the spouse may not file a complaint when her spouse ends the adultery.” Thus, D’s complaint constitutes a complaint against the proviso of Article 241(2) of the Criminal Code, which provides that “A cannot file a complaint

In addition, although the defendant did not know that he was a spouse A, the court below found him guilty of the facts charged of August 6, 201 among the facts charged of this case. The court below erred by misapprehending the legal principles of use for adultery or by misunderstanding facts, which affected the conclusion of the judgment.

B. The sentence imposed by the court below on the defendant (six months of imprisonment and two years of suspended execution) is too unreasonable.

2. Determination:

A. 1) Determination on the assertion of mistake of facts or misapprehension of legal principles as to whether a married party has expressed an intention to end up the marriage and there is no intention to continue the marriage, even if the marital relationship remains legally, it shall be deemed that the expression of intent corresponding to end-of-life, which is the prior consent to the adultery, is included in the agreement. In the absence of such agreement, even if the intention of divorce is expressed by both parties on a provisional and temporary basis, it shall not be deemed as a simple use, and even if the intention of divorce is expressed by both parties, it shall not be deemed that either of the husband and wife filed a petition for divorce against the other spouse, and thereafter the other spouse has melted or neglected the adultery (see, e.g., Supreme Court Decisions 2008Do984, Jul. 9, 2009; 89Do501, Sept. 12, 1989).