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The judgment below
The part against the defendant shall be reversed.
The prosecution against the defendant is dismissed.
Reasons
1. Since C, the spouse of the defendant, withdraws a divorce lawsuit against the defendant, there was a ground to dismiss the prosecution against the defendant.
2. The summary of the facts charged in the instant case is the person who has a spouse who reported marriage with C on April 16, 1997.
Around September 14, 2011, the Defendant sent B and once sexual intercourse at B’s house located D 301, and sent B and once sexual intercourse at the same place as a policeman on March 2012. On May 1, 2012, the Defendant sent sexual intercourse with B and once sexual intercourse at the same place as a policeman on early May 1, 201. On July 1, 2012, the Defendant sent sexual intercourse with B one time with B at the same place on the same date, respectively.
3. According to Article 241(2) of the Criminal Act, the crime of adultery can be discussed only when the spouse files a complaint. Article 229(1) of the Criminal Procedure Act provides that a complaint may not be filed unless the marriage is annulled or a divorce lawsuit is instituted in the case of a crime of adultery. Thus, it is clear that a complaint is valid for the absence of a marital relationship or the continuation of a divorce lawsuit. This condition is that the complaint must be met from the time of prosecution to the time the judgment is concluded. Thus, a complaint which does not meet the above condition is a complaint in violation of the above provision of the Criminal Procedure Act.
According to the records, C filed a divorce suit against the Defendant on July 3, 2012 by the Suwon District Court Branch 2012ddan9264, but revoked after the lower judgment was declared on December 6, 2012.
Thus, as the above divorce lawsuit was not brought from the beginning due to the retroactive effect of withdrawal, the complaint of this case is retroactively null and void. Therefore, since the indictment of this case is also null and void in violation of the provisions of law, the judgment of the court below which convicted the facts charged of this case can no longer be maintained as it is unlawful.
4. In conclusion, the defendant's appeal is justified.