Text
The defendant shall be innocent.
Reasons
1. On October 15, 2008, the Defendant was aware that he was a spouse of A, and was sexual intercourse with A on the mutual infinites located in the synthetic Dong in Masan-si, Masan-si. On November 2008, the Defendant sent A and once sexual intercourse with A on the mutual infinites located in the Busan East-dong, Busan-dong, on December 8, 2008. On December 15, 2008, the Defendant 405 of the E- building, the head of the Defendant’s house located in Fundong-gu, Busan, Busan, was sexual intercourse with A on December 15, 2008.
As above, the Defendant had sexual intercourse with A four times.
2. As to the above charged facts, the judgment subject to a retrial, which was found guilty by applying Article 241(1) of the Criminal Act (amended by Act No. 293 of September 18, 1953), became final and conclusive on March 18, 2009.
On February 26, 2015, the Constitutional Court declared on February 26, 2015 that the above provision is unconstitutional.
(2011Hun-Ga31, etc.). The provisions of the Act on Punishment decided as unconstitutional shall retroactively lose its effect on the day following the day on which the previous decision is made (Article 47(3) of the Constitutional Court Act). Since the Constitutional Court rendered a decision that the above provisions of the Act do not violate the Constitution on October 30, 2008 (Article 2007Hun-Ga17, etc.). Thus, the above provisions of the Act retroactively lose its effect on October 31, 2008, which is next day.
Where the provisions of the penal law are retroactively invalidated due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the relevant provisions of the law shall be deemed not to constitute a crime.
(See Supreme Court Decisions 91Do2825 delivered on May 8, 1992, and 2005Do8317 delivered on June 28, 2007, etc.). In light of the content of the instant facts charged and the point at which the judgment subject to a retrial becomes final and conclusive prior to the determination of the judgment subject to a retrial, this case’s retroactive effect is within the scope to which the aforementioned case affects.
3. According to the conclusion, the facts charged in this case constitute a case that does not constitute a crime, and thus, the defendant is under the former part of Article 325 of the Criminal Procedure