The defendant shall be innocent.

1. The Defendant is a spouse who has completed a marriage report with E on August 13, 1983. A.

On December 10, 2013, at around 20:00, the Defendant 101, the F apartment 101 Dong 406, the Defendant’s residence, was sent to the intersection with B one time.

B. At around 22:00 on December 10, 2013, the Defendant sent to the same place as the above paragraph (a) one time with sexual intercourse.

2. Determination

A. The prosecutor prosecuted the above charged facts by applying Article 241(1) of the Criminal Act (amended by Act No. 293, Sept. 18, 1953) and the judgment subject to a retrial that found him/her guilty was finalized on September 12, 2014.

B. On February 26, 2015, the Constitutional Court declared that Article 241 of the Criminal Act, including the above applicable provisions, is unconstitutional.

[The Constitutional Court Decision 209Hun-Ba17,205, 2010Hun-Ba194, 2011Hun-Ba4, 2012Hun-Ba4, 2012Hun-Ba5, 255, 411, 2013Hun-Ba139, 161, 267, 276, 342, 365, 2014Hun-Ba53, 464, 201Hun-Ba31, 2011Hun-Ba31, 2014Hun-Ga4, 2014Hun-Ga4, which was decided as unconstitutional on February 26, 2015] The Constitutional Court Decision 201Hun-Ba (see Article 47(3) of the Constitutional Court Act), which retroactively loses its effect on the day following the date on which the previous decision was made (see Article 241 of the Criminal Act). Thus, the Constitutional Court Decision 2008Hun-Ba107, 308,207.

In light of the contents of the facts charged in the instant case and the time of confirmation of the judgment subject to a retrial, it is evident that the instant case is within the scope of retroactive effect.

C. On the other hand, in a case where the legal provision on punishment becomes retroactively effective due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the pertinent legal provision becomes a crime.