[1] The standards for determining whether an agreement has been reached by an intention of divorce corresponding to the use of adulterys

[2] The case affirming the judgment of the court below which dismissed the prosecution on the ground that the complainant's use of the adultery was the end of the adultery since both the complainant and his spouse agreed to divorce with the intention to continue the marital relationship

[1] Article 241 of the Criminal Act / [2] Article 241 of the Criminal Act, Article 327 of the Criminal Procedure Act

[1] Supreme Court Decision 95Do2819 decided Feb. 25, 1997 (Gong1997Sang, 1018)

Defendant 1 and one other

Prosecutor

Suwon District Court Decision 2005No3357 decided Feb. 16, 2006

The appeal is dismissed.

In a case where the parties have no longer intent to continue a matrimonial relationship and there is an obvious agreement with the intention of divorce, even if the marital relationship continues legally, it shall be deemed that the agreement is included in the agreement, even if the other party's prior consent to the divorce exists. Whether or not there was an obvious agreement of the intention of divorce has been made or not, it is recognized that the parties to the marriage have no intention to maintain a matrimonial relationship in light of not only the written agreement has been made but also the various circumstances such as the parties' speech and behavior, and that there was such agreement even in a case where it is deemed that the other party's desire to respond to the request for divorce by a certain party appears to be genuine (see Supreme Court Decision 95Do2819, Feb. 25, 1997, etc.).

After finding the facts as stated in its holding, the court below dismissed the prosecution of this case on the ground that the non-indicted 2 and the non-indicted 2 have agreed to divorce with the intention to continue the marital relationship any more, and thereafter, the non-indicted 2 should be deemed to have employed the non-indicted. In light of the above legal principles and records, the court below's measures are just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles on the use of the common sense.

The Supreme Court precedents cited in the grounds of appeal are different from the instant case, and it is inappropriate to invoke the instant case.

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)