Defendants are not guilty

Indictment

1. Defendant A is a spouse who has completed a marriage report with E on May 23, 1998.

At around 18:00 on February 1, 2013, the Defendant sent to B with a single sexual intercourse from a numberless room of Gpenta, located in F, Sinju City.

2. Defendant B, while being aware that he was a spouse of Defendant B, had a sexual intercourse with A at the date, time, and place described in the foregoing paragraph (1).

Judgment

On February 26, 2015, the Constitutional Court declared that Article 241 of the Criminal Act, which is the applicable provisions to the facts charged in this case, is unconstitutional (the Constitutional Court Order 2009Hun-Ba17, Feb. 26, 2015) and Article 241 of the Criminal Act, due to the above unconstitutionality decision, was retroactively invalidated on October 31, 2008, after the previous decision of constitutionality (the Constitutional Court Decision 2007Hun-Ga17, Oct. 30, 2008, etc.) was made pursuant to the proviso of Article 47(3) of the Constitutional Court Act.

In a case where the penal law or legal provision becomes retroactively null and void due to the decision of unconstitutionality by the Constitutional Court, the defendant's case which was prosecuted by applying the relevant provisions shall be limited to a case which does not constitute a crime.

(see, e.g., Supreme Court Decision 2009Do9949, May 13, 201). Therefore, since the instant facts charged constitute a crime, the Defendants are acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act, since it constitutes a case that does not constitute a crime.