[1] The agreement of divorce and the end of the agreement

[2] The case holding that it does not fall under the cross-sections

[1] In a case where the parties to a marriage have no intention to continue the marriage and there exists a mutual agreement of the intention to 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, shall be deemed to have been included in the agreement. In the absence of such agreement, even if the intention to divorce is expressed by both parties on a provisional, temporary, and conditional basis, it does not constitute a simple use.

[2] The case affirming the judgment of the court below that it is hard to see that there was a mutual agreement between the complainant and the above defendant on the grounds that the complainant could not respond to the claim for divorce on the ground of assault against the complainant, while the complainant could not respond to the claim for divorce on the ground of the defendant's transfer of this case, and if the complainant filed a counterclaim to the claim for divorce on the grounds of the defendant's transfer of this case, it shall be deemed that the complainant did not respond to the above defendant's request for divorce, but on the condition that the defendant's liability for the failure of marriage is recognized as the above defendant, and therefore, it shall not be deemed that there was a mutual agreement between the complainant and the above defendant with the intention to impliedly

[1] Article 241 (2) of the Criminal Code / [2] Article 241 (2) of the Criminal Code

[1] Supreme Court Decision 77Do2701 decided Oct. 11, 1977 (Gong1977, 10366), Supreme Court Decision 90Do1188 decided Mar. 22, 1991 (Gong1991, 1309), Supreme Court Decision 95Do2819 decided Feb. 25, 197 (Gong197, 1018)

Defendant 1 and one other

Defendants

Seoul District Court Decision 97No1907 delivered on August 5, 1997

All appeals are dismissed.

Where the parties to a marriage have no longer intent to continue a matrimonial relationship and the parties agree with the intention of divorce, even if the marital relationship remains legally, the declaration of intention corresponding to the end, which is the prior consent to the adultery, shall be deemed to be included in the agreement. In the absence of such agreement, even if the intention of divorce is expressed by both parties on a provisional, temporary, and conditional basis, it does not constitute the case of inter-livering use (see Supreme Court Decision 90Do1188, Mar. 22, 1991).

As duly determined by the court below, Defendant 1 and the defendant 1 argued that the complainant could not respond to the divorce claim against the complainant on the ground of assault. On the other hand, if the complainant filed a counterclaim to claim a divorce on the ground of the transfer of the above defendant, it shall be deemed that the complainant did not comply with the above defendant's request for divorce, but the complainant expressed the intention of divorce on the condition that the defendant is held liable for the failure of marriage without the above defendant's request for divorce. Therefore, it is difficult to deem that there was a mutual agreement between the complainant and the above defendant on the grounds that there was a relationship between the complainant and the above defendant with a different interest.

In the same purport, the court below determined that the complainant could not be deemed to have committed the above defendant's act of adultery, and there is no error in the misapprehension of legal principles as to the use of the adultery or in the misunderstanding of facts.

The precedents cited in the grounds of appeal are inappropriate to invoke the instant case in different cases.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)