The crime of false entry in the original copy of a notarial deed is committed when a disguised marriage is made for the purpose of emigration and such marriage is reported (affirmative)

"When there is no agreement between the parties on marriage" under Article 815 subparagraph 1 of the Civil Act refers to the case where the parties have no intention to create a mental or physical combination which is recognized as a couple under the social concept of the parties. Thus, even if the parties have agreed on the withdrawal of marriage itself and there is an intention to establish a family relationship which is a married couple under the law of the parties, it is merely a means to achieve another purpose, and if there is no intention to establish a marital relationship between them, the marriage is null and void because it is a disguised marriage for the purpose of emigration and a report of marriage is entered in the family register, and if it is entered in the family register, the crime of false entry in the original copy of a authentic deed is established.

Article 228 of the Criminal Act

Supreme Court Decision 76Do107 Delivered on September 14, 1976

Defendant

Prosecutor

Suwon District Court Decision 85No323 delivered on May 30, 1985

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The prosecutor's grounds of appeal are examined.

(1) According to the reasoning of the judgment below, the court below held that, of the facts charged in this case, even though Non-Indicted 1 and U.S. Non-Indicted 2 decided to marry for the purpose of the state of origin of Non-Indicted 1, they would make the employee enter false facts as if they were married, and immediately keep them in the family register as if they were married to the same person on the original copy of the authentic deed, they would make the employee enter the fact of the marriage into a temporary or legal marital relationship with the two persons, and even if they were married for a certain purpose, if it is evident that there was a mutual agreement between the two persons to establish a marital relationship with the U.S. for the purpose of moving to the U.S., and even if they were married for a certain purpose, if there was a mutual agreement with the intention to make the marriage report itself, the marriage report under our model principle under which our marriage report is valid, and thus, it does not constitute a false report in the original deed.

(2) However, Article 815 subparag. 1 of the Civil Act, "when there is no agreement between the parties to marry" means the case where the parties do not have any intent to create a mental or physical combination which is recognized as a couple in light of social norms. Therefore, even in a case where the parties agree with respect to the marriage itself and there is an intention to establish a family relationship between the parties, even if it is acknowledged that there was an intention to establish a family relationship between the parties as a couple under the law of the parties, it is merely a means to achieve other purposes, and the marriage is null and void if there is no intention to establish a family relationship between them.

According to the court below's finding in this case, between the non-indicted 1 and the non-indicted 2 who are the United States in the course of the marriage of this case, there was an agreement between the intention to move to the marriage in a manner for the interest of the United States, but it is recognized that there was no intention to establish the marital relationship, so the above marriage has no effect.

Nevertheless, the judgment of the court below that acquitted the above facts charged on the ground that the above marriage is valid is clearly affected by the misapprehension of the legal principles as to the grounds for nullity of marriage under the above provision of the law, and therefore, the argument that points

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)