[1] The case where a divorce is invalidated by agreement

[2] Whether the crime of false entry in the original notarial deed constitutes a crime of false entry in the original notarial deed in a case where the other party deceivings the other party and reports it upon confirmation

[1] In order for a divorce to be recognized as null and void as a divorce by agreement, there should be special circumstances to be recognized by anyone. If so, it is reasonable in light of the legal and substantial importance of the divorce declaration and the fact that there was an intention to temporarily divorce between the parties to divorce by law.

[2] Even if the declaration of intention of divorce by agreement was made by deception, it exists until it is revoked. Thus, if the declaration of intention of divorce was made by agreement and the fact of divorce was entered in the family register by agreement according to the agreement of the intention of divorce, it does not constitute a false fact as stipulated in the crime of false entry in the authentic copy of the authentic deed.

[1] Articles 815, 834, and 836(1) of the Civil Act / [2] Articles 834 and 836(1) of the Civil Act, Article 228 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[1] Supreme Court Decision 93Meu171 delivered on June 11, 1993 (Gong1993Ha, 2021), Supreme Court Decision 96Do2049 delivered on November 22, 1996 (Gong1997Sang, 142) / [2] Supreme Court Decision 93Do698 delivered on September 10, 1993 (Gong1993Ha, 2835), Supreme Court Decision 96Do233 delivered on June 11, 1996 (Gong196Ha, 2262)

Defendant

Prosecutor

Seoul Criminal District Court Decision 94No4154 delivered on January 26, 1995

The appeal is dismissed.

The grounds of appeal are examined.

According to Article 836(1) of the Civil Act, Articles 79 and 79-2 of the Family Register Act, and Article 87(1) of the Enforcement Rule of the Family Register Act, the divorce by agreement shall take effect upon confirmation by the family court about the existence of intention of divorce under the conditions as prescribed by the Family Register Act. Thus, in order to recognize a divorce by agreement as null and void, special circumstances that anyone can pay should be recognized, and if so, it is reasonable to deem that there exists an intention of temporary divorce between the parties to divorce under the law and the substantial importance of the divorce report (see, e.g., Supreme Court Decision 96Do2049, Nov. 22, 1996).

In addition, even if the declaration of intention of divorce by agreement was made by deception, it is effective until it is revoked. Thus, if the declaration of intention of divorce was made by agreement and the fact of divorce was entered in the family register by agreement, it does not constitute a false fact as provided for in the crime of false entry in the authentic copy of the authentic deed (see Supreme Court Decisions 93Do698 delivered on September 10, 1993; 96Do233 delivered on June 11, 1996).

In this case, when the evidence admitted by the court below was recorded, comparison and examination, the fact finding by the court below is deemed legitimate, and there is no error of finding any error in the facts contrary to the rules of evidence such as the theory of lawsuit. According to the facts established by the court below, it is difficult to view that the defendant unilaterally reported a divorce without consultation with the non-indicted, or in collusion with the above non-indicted, even though the defendant did not intend to make a divorce, it is difficult to view that a divorce has been made only formally through consultation. Rather, the defendant and the above non-indicted, by temporarily reporting a divorce on the family register, have the intention to resolve the legal marital relationship. Therefore

Therefore, the judgment of the court of first instance which dismissed the prosecutor's appeal against the judgment of the court of first instance which acquitted the defendant about the crime of false entry in the authentic copy of the authentic deed and the crime of exercising the same, is just, and there is no error of law such as violation of the rules of evidence, misunderstanding of facts or

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)