The defendant shall be innocent.

1. A around November 17, 2008, the summary of the facts charged was known that the Defendant was a spouse of A, and around November 17, 2008, the Defendant provided one-time sexual intercourse with A in Yeonsu-gu Incheon Metropolitan City D’E located in D’E, and around December 11, 2008, the Defendant provided one-time sexual intercourse with A in Incheon Gyeyang-gu, Incheon Gyeyang F’s “G” telecom.

2. The prosecutor of the judgment, applying Article 241(1) of the Criminal Act to the above facts charged against the defendant, was prosecuted, and the judgment subject to the judgment that found him guilty became final and conclusive on August 24, 2009.

On February 26, 2015, the Constitutional Court declared that Article 241 of the Criminal Act (amended by Act No. 293 on September 18, 1953) is unconstitutional.

[The Constitutional Court Decision 209Hun-Ba17,205, 2010Hun-Ba194, 2011Hun-Ba4, 2012Hun-Ba4, 2012Hun-Ba5, 255, 411, 2013Hun-Ba139, 161, 267, 276, 342, 365, 2014Hun-Ba53, 464, 201Hun-Ba31, 2011Hun-Ba31, 2014Hun-Ga4, 2014Hun-Ga4, which was decided as unconstitutional on February 26, 2015 [Article 47(3) of the Constitutional Court Act] Where a previous case is decided as unconstitutional, the Constitutional Court rendered a decision that the above provision does not violate the Constitution on October 30, 2008 (Article 207Hun-Ba17).

Where the provisions of the penal law are retroactively invalidated due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the relevant provisions of the law shall be deemed to be a crime.

(2) In light of the above legal principles, the court below erred by misapprehending the legal principles as to the facts charged under Article 325 of the Criminal Procedure Act, as otherwise alleged in the ground of appeal. In so doing, the court below did not err by misapprehending the legal principles as to the facts charged under Article 325 of the Criminal Procedure Act.