Defendant

Defendant

Red bonds

Seoul Central District Court Decision 2008 Godan7081 Decided March 17, 2009

The defendant's appeal is dismissed.

1. Summary of grounds for appeal - Violation of Acts and subordinate statutes and unreasonable sentencing

(a) Violations of Acts and subordinate statutes;

In the case of the crime of adultery, a complaint shall not be filed unless the marriage is annulled or a divorce lawsuit is instituted. Since the complainant only filed an application for divorce at the time of filing a complaint against the defendant, a divorce lawsuit is instituted or the marriage has not been terminated, the complaint in this case shall be deemed unlawful, and thus, the public prosecution in this case shall be dismissed. However, the court below erred by convicting the defendant in violation of the statutes.

B. Unreasonable sentencing

Taking into account all circumstances, such as the fact that the defendant is deeply against the crime of this case, the fact that there is no previous criminal record, and the intention to protect the family by combining with the complainants, the punishment of the court below (one year of imprisonment with prison labor for six months and one year of suspended execution) is too unreasonable.

2. Determination

A. As to the assertion of violation of law

According to the records, the defendant asserted that the agreement prior to the filing of the complaint of this case only filed an application for divorce and that there was no lawsuit for divorce. However, the complainant filed each complaint against the facts prior to the filing of the complaint of this case on June 18, 2008, around October 8, 2008, on or around February 22, 2008, and filed a divorce lawsuit with the Seoul Family Court on September 18, 2008. On September 26, 2008, the complaint of this case can be acknowledged that the marital relationship has been terminated since consultation reached on December 26, 200, and this part of the defendant's assertion is lawful [On the other hand, since the divorce lawsuit filed by the defendant was withdrawn on March 11, 2009 and the defendant did not have an intention to cancel the divorce lawsuit, it cannot be viewed that the agreement would continue to exist after the revocation of the divorce lawsuit with the defendant's intention to continue to exist in a way other than the agreement of the Supreme Court.

B. As to the assertion of unfair sentencing

In full view of the motive, means and result of the instant crime, the circumstances after the crime was committed, the age, character and conduct, and family environment of the Defendant, etc., even considering all the circumstances alleged by the Defendant, the lower court’s punishment is too unreasonable and unreasonable. Therefore, the Defendant’s assertion is without merit.

3. Conclusion

Therefore, since the defendant's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges dominwon (Presiding Judge) Maximum Young-young Kim Nam