[1] Whether a declaration of intention for divorce shall be deemed to include an expression of intention for adultery (affirmative)

[2] The case holding that it is difficult to deem that there was an agreement between the intention of divorce in case where one of the parties to a marriage files a divorce lawsuit and the other party contests that one cannot respond to the principal lawsuit while filing a counterclaim to the same effect

[3] The meaning, method, and requirements for recognition in relation to the crime of adultery

[4] The case holding that the complainant cannot be deemed to have committed an act of adultery between the defendant and the defendant merely because the complainant and the defendant who are the party to the lawsuit of divorce, etc., such as divorce, had been invaded after the complaint was filed after the crime of adultery was committed

[1] In a case where the parties to a marriage have no intention to continue the marriage and there exists a mutual agreement with the intention of divorce, even if the marital relationship remains legally, the declaration of intention corresponding to the end of the agreement, which is the prior consent to the adultery, shall be deemed to be included in the agreement. In the absence of such agreement, even if the intention of divorce is expressed by both parties on a provisional, temporary, and conditional basis, it does not constitute the case of inter-livering use.

[2] The case holding that it is difficult to view that there was an agreement between the complainant and the defendant's intention of divorce, on the condition that if the defendant's plaintiff did not respond to the demand for divorce without the conditions of divorce, but the defendant's intention of divorce is recognized as having been expressed on the condition that it should be recognized that the defendant's failure in the marriage is responsible for the defendant's party, and thus it is difficult to view that there was a mutual agreement between the complainant and the defendant's plaintiff's intention of divorce, which includes an implied relation between the complainant and the defendant's opposite relation with each other, while the complainant filed a lawsuit for divorce as a separate lawsuit, and withdrawal of a separate lawsuit for trial and the counterclaim to the same effect cannot be complied with the claim for divorce

[3] In relation to a crime of adultery, one-way act indicating the other party's intention to renounce a bad faith and not to hold the other party liable for such an act with the knowledge of the other party's common knowledge of the common relation, and the method of common relation is not limited because it can be implicitly or implicitly, and thus, it is not possible to limit the common relation. However, in order to recognize a certain behavior or expression of intention expressing an appraisal as a common relation, first one must be voluntarily performed with the awareness of the common relation of the spouse clearly, and second, regardless of such common relation, it should be expressed in such a way that the true will to continue the marriage is apparent and reliable.

[4] The case holding that the complainant cannot be deemed to have committed an act of adultery by the defendant merely because the complainant and the defendant who are the party to the lawsuit of divorce, etc., such as divorce, have been invaded upon the defendant after the complaint of the crime of adultery was filed

[1] Article 241(2) of the Criminal Act / [2] Article 241(2) of the Criminal Act / [3] Article 241(2) of the Criminal Act / [4] Article 241(2) of the Criminal Act

[1] Supreme Court Decision 71Do2259 decided Jan. 31, 1972 (Gong20-1, 1999) Supreme Court Decision 95Do2819 decided Feb. 25, 1997 (Gong1997Sang, 1018), Supreme Court Decision 97Do2245 decided Nov. 11, 1997 (Gong1997Ha, 3913) / [3] Supreme Court Decision 91Do2049 decided Nov. 26, 199 (Gong192, 366), Supreme Court Decision 9Do826 decided May 14, 199 (Gong199Sang, 1224), Supreme Court Decision 9Do9999 decided Aug. 24, 199 (Gong199Sang, 199)

Defendant

Defendant

Attorney Park Hun-hoon

Seoul District Court Decision 99No10272 delivered on February 2, 2000

The appeal is dismissed.

We examine the grounds of appeal.

Where the parties to a marriage have no longer intent to continue a matrimonial relationship and the parties agree with the intention to divorce, even if the marital relationship remains legally, an expression of intent corresponding to the end, which is the prior consent to the adultery, shall be deemed to be included in the agreement. In the absence of such an agreement, even if the intention to divorce is expressed by both parties on a provisional, temporary, and conditional basis, it does not constitute a simple use (see, e.g., Supreme Court Decision 97Do245, Nov. 11, 1997).

According to the court below's duly confirmed, with respect to a defendant's filing of a lawsuit for divorce, etc. against the complainant on the grounds of religious life and waste walls, the complainant, as a separate suit, filed a lawsuit for a divorce trial on the grounds of the transfer of the case and assault of the defendant, but with the mental convenience of the trial, withdrawn the separate suit and raised a counterclaim to the same effect in the procedure for a divorce trial that the defendant raised, and did not respond to the defendant's claim for divorce, and the defendant did not comply with the defendant's claim for divorce. Such circumstance should be deemed to have expressed his/her intention for divorce on the condition that the complainant did not comply with the defendant's request for divorce without the defendant's request for divorce, but is recognized that the defendant is responsible for the failure of marriage. Thus, it is difficult to deem that the complainant and the defendant have agreed with the intention of divorce

In addition, in the crime of adultery, one-way act indicating that one spouse would waive a malicious sentiment with the intention to continue the marriage and will not hold the other party liable for such an act with the knowledge of the other party's communication. Although there is no restriction on the method, it may be explicitly or explicitly, and thus, it is not limited to the method. However, in order to recognize a certain behavior or expression of intent to express an appraisal as an expression of intent, the first spouse's communication should be voluntarily made with the awareness of the inter-party communication, and the second, regardless of such inter-party communication, it should be expressed in such a way as to clarify and believe the true intent to continue the marriage (see, e.g., Supreme Court Decision 9Do2149, Aug. 24, 199). Thus, even if the complainant had been on the part of the defendant even after the complaint had been lodged, such fact alone cannot be deemed as having committed the act of inter-party communication in this case.

In the same purport, the decision of the court below that the complainant cannot be deemed to have employed or neglected the act of adultery in this case is just, and it cannot be said that there was an error in the misapprehension of legal principles as to the use of the adultery or the oil, or in violation of the rules of evidence.

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

Justices Kim Jong-sik (Presiding Justice)