[1] Whether a de facto both division constitutes a relative with a de facto relationship under Article 7(5) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (affirmative)

[2] The validity of adoption in a case where a person with a wife has filed a report on the adoption under the names of both spouses with the intention of only the married couple

[3] The case holding that where the defendant was in the intent of adoption of the victim with the victim's biological consent but without the victim's biological consent, reported the birth of the victim as the father's father and wife's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's father'

[1] A person who is not recognized as legally in existence due to the non-performance of statutory procedure, such as reporting, is a relative of a de facto relationship under Article 7(5) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof.

[2] If a wife accepts a report of adoption made in the name of both husband and wife with the intention of only the married couple in making the adoption, the adoption becomes null and void as there is no agreement between the parties, one of the general requirements of adoption between the wife and the prospective adoptee. However, even if the wife and the prospective adoptee fail to meet all the general requirements of adoption, the wife may claim the revocation of the adoption. However, unless the revocation is made, the adoption remains null and void, and if the parties fail to establish the adoptive relationship, the report of birth of the natural father with the intent of creating the adoptive relationship, and if the actual requirements of the adoption are satisfied, the adoption becomes null and void, and the adoptive relationship becomes null and void by law, except when it is resolved by the dissolution of the adoptive relationship. Therefore, a false natural parent in this case can perform the function of reporting the adoption of the adoptive parent-child relationship under the law of the adoptive parent-child relationship.

[3] The case holding that where the defendant was in the intent of adoption of the victim with the victim's biological consent but without the victim's consent, reported the birth of the victim as the father's father and wife, the defendant constitutes a "relative in a de facto relationship" under Article 7 (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof before the report of birth of the father's father's father's father's father's father's father's mother's father's father's father's mother's father

[1] Article 7 (1) and (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof / [2] Articles 874 (1), 878, subparagraph 1 of Article 883, and subparagraph 1 of Article 884 of the Civil Act / [3] Article 7 (1) and (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

[1] Supreme Court Decision 95Do2914 delivered on February 23, 1996 (Gong1996Sang, 1179) / [2] Supreme Court en banc Decision 77Da492 delivered on July 26, 197 (Gong197, 10219), Supreme Court Decision 85Meu86 delivered on February 23, 198 (Gong198, 593), Supreme Court Decision 97Meu25 delivered on May 26, 1998 (Gong198Ha, 1760), Supreme Court Decision 9Meu230 delivered on August 21, 201 (Gong201Ha, 2073)

Defendant

Defendant

Attorney Kim Jae-sik

Seoul High Court Decision 2005No1333 delivered on October 18, 2005

The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence.

1. The court below held that although the victim of this case is the age of 1988, the contents of the statement are very specific and detailed, consistent with the explanation of the situation, the attitude of the statement is strong, and there is no director in the expression, and the evidence adopted including each statement in the investigation agency of the victim and the court of first instance can be sufficiently recognized in light of the records. In light of the records, the above judgment of the court below is correct, and there is no error of law such as misunderstanding of facts against the rules of evidence, etc. due to the violation of the rules of evidence.

2. Article 7(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (hereinafter “Act”) provides that when a person who is a blood relative commits a crime under Article 297(1) of the Criminal Act, he/she shall be punished by imprisonment for a limited term of not more than five years. Article 7(5) of the Act provides that a blood relative under paragraph (1) includes a de facto blood relative. Article 7(5) of the Act provides that a person who is a blood relative shall have both de facto marital relationship, such as the agreement of the intention to establish a legal blood relationship, and the person who is not deemed to continue to exist as a result of the non-performance of legal procedure, such as a report, is a de facto relative (see Supreme Court Decision 95Do2914, Feb. 23, 1996, etc.).

In addition, in cases where a wife accepts a report of adoption made in the name of both husband and wife with the intention of only the married couple in making the adoption, the adoption becomes null and void as there is no agreement between the parties, one of the general requirements for adoption between the wife and the prospective adoptee. However, even if the wife and the prospective adoptee fail to meet all the general requirements for adoption, the wife is entitled to file a claim for annulment of the adoption. However, unless the adoption is revoked, the adoption remains effective (see Supreme Court Decision 97Meu25, May 26, 1998, etc.) unless it is revoked, and if the parties have agreed to establish a adoptive relationship, the birth report becomes effective even if it is somewhat erroneous in its form, and the adoption relationship can be resolved by the dissolution of the adoptive relationship, and thus, it is also identical to the opinion of the Supreme Court en banc Decision 97Meu286, Jul. 26, 197, 197.

According to the records, on April 11, 200, the defendant supported the education of the victim by the defendant between the victim who is a captain of the ship on April 11, 200 and the victim. The victim lives together with the defendant from the time of his marriage to the time of his death, and the defendant agreed to give 30% of the property at the time of his death to the victim. According to the above agreement, the defendant transferred the victim from China to the Republic of Korea on September 16, 200 to the defendant's home, and provided the victim with living expenses and education expenses. On April 9, 200, the victim was reported to the birth as the natural father between himself and the wife and the non-indicted 1, the victim's mother as his legal representative. In light of the above facts, it appears that the defendant and the victim met the substantial requirements for adoption including the above agreement and the adoption. However, the defendant's birth report by only the non-indicted 1's natural father or the victim's adoption without the father's consent is revoked.

Therefore, it is proper that the court below's decision that the defendant's actual father at the time of committing each crime under paragraphs (1) and (2) of Article 7 of the Act as the "relative in a de facto relationship" under paragraph (5) of Article 7 of the Act, and that the victim's two father at the time of committing each crime under paragraph (3) of Article 7 of the Act constituted "relative" under paragraph (1) of Article 7 of the Act is correct in accordance with the above legal principles, and there is no error of law such as misunderstanding of

3. Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)