Defendant 1 and one other

Defendants

Kim Young-young

Attorney Kim Jong-chul

Seoul Central District Court Decision 2007Ma5349 Decided December 27, 2007

The Defendants’ appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

In light of the circumstances such as the Nonindicted Party and Defendant 1 already brought a divorce lawsuit against each other before the instant case, and the Nonindicted Party and Defendant 1 already agreed on divorce on April 3, 2007 on the date of investigation by the family affairs investigator, it is reasonable to deem that the case constitutes a case where the Nonindicted Party, the spouse, had already been in accord with the intention of divorce before the instant case (as of April 22, 2007), and thus, the case constitutes a case where the Nonindicted Party, who is the spouse, has used the adultery. Therefore, the notice suit by the Nonindicted Party constitutes a complaint against the proviso of Article 241(2) of the Criminal Act providing that “if the spouse ceases to use the adultery, it shall not file a complaint.” Accordingly, the indictment of this case constitutes a ground for dismissing prosecution in violation of the provisions of the Act (Article 327 subparag. 2 of the Criminal Procedure Act) and thus, constitutes a judgment of dismissal in violation of the provisions of the Act. Nevertheless, the lower court convicted the Defendants by misapprehending the legal doctrine regarding the use of adultery.

B. Error of mistake

Although the Defendants were in the same room, they did not reach sexual intercourse, the lower court convicted the Defendants by misunderstanding the facts.

2. Determination

A. Judgment on the misapprehension of legal principles

(1) 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 corresponding to the end-of-life, 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, interim, and conditional basis, it does not constitute a case of inter-conception (see Supreme Court Decision 2000Do868, Jul. 7, 2000).

(2) According to the evidence duly admitted by the court below and each investigation report submitted by the court below, the non-indicted and the defendant 1 moved their place of residence on April 30, 1982. The non-indicted and the defendant 1 are the couple who reported the marriage on April 30, 1982. The non-indicted 1 filed a divorce lawsuit against the non-indicted 1 on January 16, 2007 on the grounds of the violent act, unlawful act, etc., and the defendant 1 filed a divorce lawsuit against the non-indicted 1 on January 22, 2007, and currently pending the lawsuit. The non-indicted 2 on April 12, 2007 during the divorce lawsuit, the non-indicted 1 moved to his place of residence on May 25, 207, and the non-indicted 3 did not reach the claim for consolation money as the non-indicted 1 prepared by the second investigator on April 3, 2007, and the second investigator on June 37, 2007.

However, it is deemed that the Nonindicted Party and Defendant 1 filed a divorce lawsuit against each other with respect to each other, and the reason why they reached a separate place is that the Nonindicted Party expressed the intention of divorce on the condition that it is recognized that the other party is responsible for the failure of the marriage rather than having expressed an unconditional intention of divorce against Defendant 1. In addition, the mere fact that the above entries are contained in the investigation report by the family affairs investigator is insufficient to deem that the Nonindicted Party and Defendant 1 had reached an agreement between the intention of divorce, including the intention of temporary, temporary, and conditional divorce, beyond the expression of the intention of provisional, temporary, and conditional divorce before the instant case, and there is no other evidence to acknowledge this ( even according to the above investigation report, the Nonindicted Party and Defendant 1 asserted that they are liable for the failure of marriage between the other parties on the date of the instant investigation

(3) Therefore, we cannot accept the Defendants’ assertion of legal principles.

B. Judgment of mistake of mistake

(1) Defendants’ legal actions

It is true that the Defendants first met the preceding day of the instant case and had been in the room on the day of the instant case. However, during the shower period by Defendant 2, Defendant 1 did not engage in sexual intercourse only when Defendant 1 was in the process of self-defenseing the same adult broadcast, and did not engage in sexual intercourse.

(2) Determination

In light of the objective circumstances at the time of the instant case, including the following facts: (a) the situation within the Moel room where the Defendants were the Defendants at the time of the instant case, the time during which the Defendants stayed in the Moel room; (b) Defendant 1’s sperm was detected; and (c) Defendant 2 rejected Defendant 2’s sperm reaction test without any reasonable reason, contrary to the Defendants’ assertion, the Defendants appears to have met each other from February 2007 at the latest; and (d) the Defendant’s appeal as to the circumstance in which the fixed amount was detected in the suspension is difficult to believe in itself; (b) contrary to the Defendants’ assertion, it can be recognized that the Defendants committed sexual intercourse, and thus, the Defendants’ assertion of mistake of facts is also rejected.

3. Conclusion

Therefore, all appeals by the Defendants are dismissed.

Judges Cho Jong-sung (Presiding Judge)