Defendant 1 and one other

Defendants and Prosecutor

Maximum Country of Origin

Law Firm Free Law, Attorney Go Sung-hwan

Seoul Central District Court Decision 2007Ma5620 Decided November 7, 2007

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants’ assertion (as to the part of the charge)

(1) Legal principles

① Defendant 1 and his spouse, who received an application for confirmation of the intention of divorce accompanied by the “written statement on the application for confirmation of the intention of divorce” prepared by each of the parties on December 29, 2006, led to the unity of the parties to the agreement. As such, the Nonindicted Party’s act of communication in this case that was subsequently committed shall be deemed to have been obstructed. Meanwhile, the intention of communication in the middle is one of the unilateral declaration of intention of the other party and cannot be withdrawn after the arrival of the other party. Thus, the Nonindicted Party’s withdrawal of the application for confirmation of the intention of divorce in January 15, 2007 cannot be withdrawn. Therefore, on the premise that the withdrawal of the intention of use in the middle is possible, the lower court erred by misapprehending the legal doctrine that found the Defendant guilty of this part of the facts charged, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

Considering all the circumstances, the sentence of the court below (the defendant 2 years of suspended execution in April) is too unreasonable.

B. Prosecutor's assertion (as to the acquittal part)

Defendant 1, on April 17, 2007, was able to be found not guilty of this part of the facts charged, in full view of the following facts: (a) Defendant 1 was able to be found guilty of this part of the facts charged, despite the fact that he had been able to fully recognize this part of the facts charged, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Determination

A. Judgment on the Defendants’ assertion

(1) Judgment on the misapprehension of legal principles

(A) If the parties to a marriage have no intention to continue the marriage and there is an obvious agreement with the intention of divorce, even if the marital relationship remains legally, the declaration of intention on the paper, which is the prior consent to the adultery, shall be deemed to be included in the agreement. However, in the absence of such an obvious 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 the adultery.

(B) According to the evidence duly adopted and examined by the court below, on December 29, 2006, Defendant 1 and the non-indicted 1’s spouse submitted a “written application for confirmation of divorce agreement” attached with the written application for divorce agreement with the Seoul Family Court (Evidence record No. 169-172). The non-indicted 1 voluntarily withdrawn the above application with his intention to continue marriage on January 15, 2007, when the period of deliberation was in progress. The defendants filed a complaint against the defendants on the 18th day of the same month, and the non-indicted 1 known of this fact on the 23th day of the same month, filed a claim suit, such as divorce and consolation money, against the defendants (the Seoul Family Court Decision 2007hap859, the next day after the Seoul Family Court Decision 2007hap859, the non-indicted 1 submitted a written statement to revoke the divorce agreement, but the non-indicted 1 submitted the above written statement to the effect that the withdrawal of the divorce agreement.

According to the above facts, since the non-indicteds withdrawn the application for divorce during the period of deliberation prior to the so-called divorce, even if they submitted the application for confirmation of divorce intention of this case, it is difficult to deem that there was an obvious agreement with the intention of implied intention, including the intention of implied intention, even in a relationship with other different outcomes. As seen earlier, it is reasonable to deem that the non-indicteds withdrawn the application for confirmation of divorce intention as well as the subsequent withdrawal of the application for confirmation of divorce with the intention of continuing the marriage, and that if they submitted the written withdrawal, it cannot be said that there was a good faith as to the adultery act of this case. The defendant's above assertion cannot be accepted.

(2) Determination on the assertion of unreasonable sentencing

In light of various circumstances, including the Defendants’ age, character and conduct, background of the crime and circumstances after the crime, etc., the lower court’s sentence sentenced to the suspension of the execution of the period of four months to the Defendants cannot be deemed to be excessively unreasonable, and thus, the Defendants’ assertion on this part is without merit, in light of the following: (a) even though the Defendants had already committed one and several acts prior to the instant case and had been subject to complaint from the Nonindicted Party; (b) the Defendants again committed the instant crime; and (c) the Defendants’ punishment, which sentenced the suspension of the execution of two years to the Defendant for four months to the Defendant, was too unreasonable.

B. Determination of the Prosecutor’s argument

(1) Summary of the facts charged

Defendant 1 is a person who is the spouse of the non-indicted on April 18, 1989, and around April 17, 2007, the defendant 1 was a spouse who has reported the marriage with the non-indicted on the non-indicted 1, and the defendant 2 and the non-indicted 1 was sent to the non-indicted 10-dong Office Officetel (detailed number omitted) of the Gwanak-gu, Seoul Special Metropolitan City. The defendant 2 was sent to the non-indicted 1, even though the defendant 1 was aware of his spouse's death.

(2) The judgment of the court below

The court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act on the ground that the evidence submitted by the prosecutor submitted by the prosecutor that he could not be directly recognized as evidence to prove the correspondence between the defendants. The court below found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act on the ground that he did not have any other evidence to prove this differently.

(3) Judgment of the court below

In this case, the Defendants completely denied this part of the facts charged by asserting that they were not sexually and at the above time and place from the police to the trial of the party. The burden of proof for the facts charged in a criminal trial exists with the prosecutor, and the recognition of guilt ought to be based on the probative evidence with the probative value that leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt by the judge. Therefore, if there is no such evidence, even if there is no doubt about the Defendant’s guilt, it is inevitable to determine the Defendant’s

Although there are some doubtful circumstances, such as Defendant 2’s mass reaction in this case, it is insufficient to recognize the Defendants’ sexual intercourse at the time and place indicated in the facts charged, and there is no other evidence to acknowledge it differently, according to all evidence submitted by the prosecutor.

Therefore, the judgment of the court below that acquitted the defendant under the latter part of Article 325 of the Criminal Procedure Act because this part of the facts charged constitutes a case where there is no proof of crime, is correct, and there is no error of law that affected the conclusion of the judgment

5. Conclusion

Therefore, the appeal by the Defendants and the public prosecutor is without merit, and all of them are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Noh Tae (Presiding Judge) Kim Jong-Un Trademark