The defendant shall be innocent.

1. On December 2013, the Defendant was aware that he/she was a spouse of A, and even after being aware of his/her spouse, in “E” operated by He/she was sexual intercourse with A on one occasion.

2. Determination:

A. The prosecutor prosecuted the charged facts of this case by applying Article 241 of the Criminal Act, and the judgment subject to a retrial was finalized on January 24, 2009.

B. However, on February 26, 2015, the Constitutional Court decided that Article 241 of the former Criminal Act (amended by Act No. 13719, Jan. 6, 2016) violates the Constitution (amended by Act No. 13719, Feb. 26, 2015) was unconstitutional (the Constitutional Court Decision 2009HunBa17, Feb. 26, 2015) and the above provision of the Act was retroactively invalidated on October 31, 208, following the date when the final constitutional decision (the Constitutional Court Decision 2007HunBa17, Oct. 30, 2008, etc.) was made pursuant to the proviso of Article 47(3) of the Constitutional Court Act.

C. Meanwhile, in a case where the penal law or legal provision becomes retroactively null and void due to the Constitutional Court's decision of unconstitutionality, the defendant's case where the application of the pertinent provision is judged by the court is not a crime.

(See Supreme Court Decision 2009Do9949 Decided May 13, 201, etc.). 3. If so, the instant facts charged constitute a case that does not constitute a crime, and thus, the Defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.