Defendant 1 and one other

Prosecutor

Park Ho-sung

Attorney Yoon Man-ju et al.

Seoul Eastern District Court Decision 2006Ra414 Decided January 24, 2007

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for six months.

However, the execution of each of the above punishment against the defendants shall be suspended for one year from the date this judgment becomes final and conclusive.

1. The facts charged in this case and the summary of the judgment below

A. Summary of the facts charged in this case

(1) Defendant 1, who was the spouse of the non-indicted 3 on April 11, 1995 and who was the spouse of the non-indicted 3 on his marriage report, was sent to Defendant 2 on June 23, 2005 at the Morocel Morocel room located in Songpa-gu Seoul Metropolitan Government on the part of the non-indicted 2.

(2) Defendant 2 was aware that Defendant 1 was his spouse, and even at the same time and place, the said time and place had sexual intercourse once with Defendant 1.

B. Summary of the judgment below

The lower court acquitted the Defendants on the following grounds: (a) rejected the Defendants’ assertion that Nonindicted 3, the accuser 3, had used or neglected the adultery of Defendant 1; and (b) on the grounds that there was no evidence to prove there was no evidence to prove there was a crime; and (c) acquitted the Defendants

(1) As to the inter-modal transit

① 2001.경 고소인 공소외 3이 먼저 피고인 1에게 “우리 이혼하자. 그런데 내가 너에게 해줄 것은 없다.”고 말하자 피고인 1이 “그렇다면 애들을 데리고 살 수 있게 대책을 세워 달라.”고 말했고, ② 2005. 4. 말경 고소인이 피고인 1에게 “이번 결심은 확실하지? 너 변함없지? 그럼 합의이혼하기로 하고 이혼서류용지는 네가 가지고 와라. 그런데 난 해 줄 돈이 없다.”고 하자 피고인 1이 “구의동 집이 있질 않느냐.”고 하였고, 이에 고소인이 “그거 내꺼 아니다.”라고 하였으며, ③ 고소인이 피고인 1에게 2005. 5. 22.경 “괴롭다. 이혼도 그렇고. 해 줄 돈도 없고. ○○(피고인 1을 가리킴)이 많이 미안하다.”는 내용의 문자메세지를 보냈고, ④ 같은 해 5. 23.경 “합의이혼은 안 될 것 같고, 소송을 해서 가져갈 수밖에 없는 것 같다”는 내용의, 같은 해 6. 7.경 다시 “관리비, 신문학원비 등 집에 관련된 자동이체 다 풀고 수고스럽지만 적어 달라.”는 내용의, 같은 해 6. 8.경에는 “금요일날 구의동 갈 필요 없다. 괜히 들쑤시지 말고 하던대로 하라.”는 내용의 각 문자메세지를 피고인 1에게 보냈고, ⑤ 피고인 1이 2005. 6. 7.경 이혼으로 인한 위자료 및 재산분할청구권을 피보전권리로 하여 고소인 명의의 서울 광진구 구의동 (지번 생략) 소재 다가구주택에 대하여 처분금지가처분신청을 하여 같은 달 18. 서울동부지방법원에서 가처분결정이 내려졌는데, 가처분결정의 촉탁등기 하루 전인 2005. 6. 21. 위 부동산에 관하여 고소인의 부(부)인 공소외 4 명의로 소유권이전청구권가등기가 마쳐졌으며, ⑥ 고소인이 2005. 6. 21. 서울가정법원에 이혼소송을 제기하여, 피고인 1도 2005. 7. 1. 같은 법원에 반소를 제기하였다는 것인바, 사정이 위와 같다면, 고소인으로서는 혼인관계 파탄의 책임이 피고인 1에게 있음이 인정됨을 조건으로 하여 이혼의 의사를 표명한 적은 있지만, 고소인과 피고인 1 사이에 서로 다른 이성과의 정교 관계가 있어도 묵인한다는 의사가 포함된 이혼의사의 합치가 있었다고 보기는 어렵다 할 것이므로, 고소인이 피고인 1의 간통을 종용하였다고 볼 수 없다.

(2) As to the publication note

According to the Ministry of Labor on June 23, 2005, the Ministry of Labor stated that the case on duty of June 23, 2005 stated the following as "one time to sexual intercourse, voluntary behavior ? the complainant was punished and returned home because the complainant was not punished," but ① Nonindicted 2 and Nonindicted 1, a worker on duty, at the court of the court of the original instance, stated as follows: "The complainant, at the time of the complaint, would decide whether to accept a written complaint to see the defendants." It means that the complainant, "I would like to decide whether to receive a written complaint to see the defendants. I would like to make a simple entry of the above contents in the case on duty, and ② At the court of the original instance, the complainant received a written complaint on June 21, 2005, which is the front day of the case on duty, and there was a difference between the defendant 1 and the party on duty and the party on duty, and the defendant 2 and the party on duty could not be seen as having been reported again by the defendant 1 and the defendant on duty.

(3) As to whether there was a adultery

① Nonindicted 3, who was the accused, appeared to have been completely off by the investigative agency, but the Defendants did not have been present at the scene of the act of sexual intercourse. It was the same that the Defendants did not have been present at the time, and the police officers did not have been present at the scene because there was no yellow dust. However, the Defendants brought about several cases at the scene to collect fixed amount, and stated that they did not present white water contained in vinyl, and they did not appear to have been present as evidence, and ② the Defendants did not go out of the police station to the court and did not appear to have been present at the scene of the crime, ② the Defendants did not appear to have been asked for any suspicion of adultery since they got out of the police station, but did not come out of the police station to have been present at the scene of the crime. However, the Defendants did not appear to have been present at the scene of the investigation, and the Defendants did not appear to have been able to have been present at the scene of the investigation, and the Defendants did not appear to have been able to have been present at the scene of the investigation.

2. Summary of grounds for appeal;

In full view of the indirect facts admitted by the prosecutor based on the evidence submitted by the prosecutor, the court below found the Defendants not guilty on the ground that there was no proof of crime. The court below erred by misapprehending the facts.

3. Judgment of party members

(a) Facts of recognition;

The following facts can be acknowledged according to the evidence duly examined and adopted by the court below and the court below, in particular, the defendants' some statements in the court of the court of the court below, the witness non-indicted 1 and 5's statements in the court of the court of the court of the court below, the witness non-indicted 2 and 3's statements in the court of the court below, the prosecutor's protocol against the non-indicted 3, and the police interrogation protocol against the defendant 2.

(1) From March 2004, the Defendants knew to be a teacher working in the same school from around the same school, and began to be so close as to make one another's personal talks from May 2005.

(2) From May 2005, Nonindicted 3 started with Defendant 1’s external rating, who was a wife, and started with Defendant 1’s external rating, and started to go to Defendant 1 in front of the school in which Defendant 1 was working. On June 19, 2005, Defendant 2 went to the Morocco in Songpa-gu, Songpa-gu, Seoul on the same day and started to go to the Morocco on the part of Defendant 2, and came to the Morocco in the Morocco in Songpa-gu, Songpa-gu, Seoul on the same day at around 18:30.

(3) From June 23, 2005, Nonindicted 3 went to the Defendants from around 14:00 on June 23, 2005. At around 20:30 on the same day, the Defendants came to the above Marocco, and then contact Nonindicted 3’s family members, and reported only 112, and entered the above Marocco’s room at around 21:50.

(4) At the same time, Defendants 1, 3, his family members, and police officers went to the above guest room by opening a guest room in Masky’s Turkey because there was no reaction with the above guest room more than two times. At the time, Defendants 1 exceeded all clothes, and Defendant 3 was covered by the burged, furged, furged, furged, and furged with Non-Party 3, etc., and furged to the burg by playing, and Defendant 2 was farged to play.

(5) On the part of Nonindicted 3, Nonindicted 5 asked Nonindicted 2 of the facts that the police officer, upon entering the above guest room, asked Nonindicted 3 to the Defendant 2. Defendant 2 was denied the act of communication at first, and Defendant 2 did not speak of the above police officer when he asked him to refer to the number of the toilets in the toilet, and Defendant 2 did not speak. In addition, the Defendants asked the above police officer to accompany him to the Twit Police Station, and responded to this order.

(6) The police officers in charge following the arrival of the Defendants and the complainants at the Songpa Police Station received the written self-written statement from the Defendants and received the written statement to receive the written statement to supplement the complaint from Nonindicted 3, the complainant, and Nonindicted 3, who received the written statement to decide whether to file the complaint after communicating with the Defendants.

B. Determination

In full view of the following facts: (a) the relationship between the Defendants, the age and health conditions of the Defendants; (b) the time when the Defendants were discovered by the complainants, etc.; (c) the attitude of the Defendants on the day of the instant case at the conference room and the police station; and (d) the Defendants went to the same telecom on June 19, 2005, which was four days before the end of the instant case, it can be sufficiently ratified that the Defendants engaged in sexual intercourse during the period in which they were in the said telecom.

4. Conclusion

Since the prosecutor's appeal of this case is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The above 1.a. The same shall apply to the entry in paragraph (1).

1. The Defendants’ partial statements in the first trial records of the court below

1. The legal statement of Non-Indicted 1 and 5 of the witness of the political party;

1. Among the second trial records of the court below, the statement of Nonindicted 3’s witness in the court of the court below, and the statement of Nonindicted 2’s witness in the court of the court below among the fifth trial records

1. The part of the suspect examination protocol against the Defendants in the prosecutor’s preparation (including Nonindicted 3’s statement)

1. Statement of the prosecutor’s statement on Nonindicted 3’s preparation

1. Article applicable to criminal facts;

Article 241 (1) of the Criminal Code

1. Suspension of execution;

Article 62(1) of the Criminal Act (see, e.g., Article 62(1) of the Criminal Act; Article 62(1) of the marriage relationship between Defendant 1 and the complainant was in the process of the failure at the time of the instant adultery; and Article 62(1) of the same Act of the Defendants, even though the Defendants denied the instant adultery,

1. As to the end of the passage

If the parties to a marriage do not intend 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 of the agreement, 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 shall not be deemed to fall under the case of inter-conception.

As recognized by the court below, around May 22, 2001, the complainant first asked Defendant 1 to talk about the divorce, and around April 2005, Defendant 1 demanded the complainant to proceed to divorce, the complainant "whether or not this decision is uncertain? There is no change? The agreement will be mixed, and the paper for the divorce document will be d. A, but there is no money to do so." Since then, the complainant sent a text message on four occasions from May 22, 2005 to June 8, 2005, which appears on the premise of divorce, and the complainant submitted a complaint to the court on June 21, 2005, which is prior to the act of the instant case.

However, as recognized by the court below, Defendant 1 had a right to claim consolation money and property division due to divorce around June 7, 2005, and applied for provisional disposition on the 18th of the same month to the Seoul Eastern District Court on the 19th day of the Seoul Dong-gu Seoul Special Metropolitan City (number omitted), and the her talk as above to Defendant 1 around the end of April 2005 is due to the fact that Defendant 1 was divorced, and that the her opinion was made to Defendant 1 and the her will to receive a divorce suit from the end of May 2005 to the first day of June 1, 2005, it is difficult to view that the her agreement on divorce was reached between Defendant 1 and the her parents, and that the her will to receive a divorce suit should not be understood as having been accepted by the her agreement on divorce. This is the same on the following grounds.

Therefore, since it cannot be deemed that the complainant used the defendant 1's adultery, the defendants' assertion on this part is rejected.

2. As to the statements of publication

In light of the records of this case, it is reasonable that the court below determined that the above 1.B.(2) does not constitute the adultery, and thus, the defendants' assertion on this is not accepted.

3. As to the assertion that the prohibition of inventory after the withdrawal of the complaint was violated

On June 23, 2005, the Defendants filed a complaint with Nonindicted 3 on June 23, 2005, along with the receipt of a written request for divorce and a written request for divorce, and subsequently disclosed the intention of not imposing punishment, and revoked the complaint. The Defendants asserted that the instant complaint filed again on September 27, 2005 is unlawful in accordance with Article 232(1) of the Criminal Procedure Act.

살피건대, 이 사건 기록에 의하면 ㉮ 고소인 공소외 3은 2005. 6. 23. 위 모텔에서 112 신고 후 경찰관에게 이혼소송서류와 고소장을 제출하였고, 이를 제출받은 서울송파경찰서 방이지구대 소속 경찰관들은 피고인들을 임의동행하여 이 사건을 서울송파경찰서 조사계에 인계한 사실(수사기록 36면), ㉯ 위 송파경찰서의 당직 경찰관인 공소외 1은 고소인 공소외 3으로부터 “피고인들과 얘기할 수 있는 시간을 달라. 피고인들과 이야기를 해 보고 고소장을 접수할 것인지를 결정하겠다.”는 취지의 이야기를 듣고서 고소장을 고소인에게 돌려준 사실, ㉰ 당직 경찰관 공소외 2는 송파경찰서 2005. 6. 23.자 당직사건처리부에 “6. 23. 방이동 모로코호텔에서 1회 성교, 임의동행 ⇒ 고소인이 처벌불원하여 귀가조치”로 기재한 사실을 각 인정할 수 있다.

In light of these facts, it is reasonable to view that Nonindicted 3, the complainant, had already filed a complaint by submitting a written complaint to the police officer on June 23, 2005, and accordingly the investigation was initiated.

However, in a case where Nonindicted 3, the complainant, revealed that he would report the conversation with the Defendants and make a decision on whether to receive the written complaint in a regular manner, and collected the written complaint from the police officer, it cannot be deemed as a cancellation of the complaint, since the complainant did not explicitly and definitely withdraw the wish to prosecute the Defendants.

Therefore, we cannot accept this part of the Defendants’ assertion.

Judges Yoon Nam-nam (Presiding Judge)