Whether the withdrawal of a divorce action after the declaration of divorce shall be considered as the withdrawal of a complaint for the crime of adultery (negative)

The withdrawal of a divorce lawsuit which is deemed to have been cancelled under Article 229(2) of the Criminal Procedure Act refers to a case where the intention to resolve the marriage is withdrawn and the marital relationship remains effective as a result, and it cannot be deemed that it means a case where the spouse has withdrawn the divorce lawsuit because it has no practical benefit to maintain the divorce lawsuit since the spouse has achieved the purpose of resolving the marriage by means of consultation, divorce, etc. after having brought a divorce lawsuit outside of the lawsuit. In such a case, the simple notification suit satisfies the valid condition of the complaint, “non-existence of a marital relationship,” which is a selective relation with the “Continuance of a divorce lawsuit,” and still continues

Article 229(1) and (2) of the Criminal Procedure Act, Article 241(2) of the Criminal Act

Defendant

Defendant

Chuncheon District Court Decision 2006No116 decided October 26, 2006

The appeal is dismissed.

Article 229 of the Criminal Procedure Act provides that a complaint shall not be filed unless the marriage is annulled or a divorce lawsuit is instituted (paragraph (1)), and a complaint shall be deemed to have been revoked when the marriage is resumed or the divorce lawsuit is withdrawn (paragraph (2)). The above provision provides that a complaint filed by a spouse for a crime of adultery without a final intention to resolve the marriage relationship is unreasonable due to the nature of the marital relationship. In the case where the marriage relationship is terminated through consultation outside a lawsuit for divorce, etc. in the course of a divorce lawsuit, a divorce lawsuit shall be inappropriate and dismissed. In light of the above, taking action for a divorce lawsuit deemed to have been revoked pursuant to Article 229(2) of the Criminal Procedure Act as a result, it refers to a case where the intention to resolve the marriage is withdrawn and the marital relationship remains in existence after the withdrawal of the intention to resolve the marriage. It is reasonable to deem that the agreement between the spouse after the divorce lawsuit has been instituted to achieve the purpose of a divorce lawsuit by means of a divorce, etc., and thus the existence of a valid divorce lawsuit cannot continue to exist.

On April 4, 2006, the court below recognized that the complainant, who is the husband of the non-indicted, filed a divorce report with the court below on April 4, 2006, and submitted a written withdrawal of the lawsuit to the court below at around 14:55 on the same day, and at around 16:45 on the same day, the lawsuit for divorce was withdrawn, and thus the lawsuit for divorce has already become effective prior to the withdrawal of the lawsuit for divorce, so the lawsuit for divorce in this case still remains valid. The judgment of the court below is justified in accordance with the above legal principles, and it does not err by misapprehending the legal principles as to the validity of the lawsuit for divorce

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)