The defendant shall be innocent.

1. On September 9, 201, the Defendant knew that he/she is a spouse of A, the Defendant provided the same sexual intercourse with the above A once at the mutual incompetel located in Yangsan-si on September 9, 201. On September 23, 201, the Defendant provided the same sexual intercourse with the said A once at the mutual incompetel located in the same Dong.

2. Determination

A. The prosecutor, applying Article 241(1) of the Criminal Act to the facts charged in the instant case, brought a public prosecution by applying Article 241(1) to the facts charged, and was sentenced to a judgment subject to a retrial that found him guilty, and became final and conclusive

B. However, on February 26, 2015, the Constitutional Court rendered a decision that Article 241 of the above Criminal Act is unconstitutional (the Constitutional Court Decision 2009HunBa17, Feb. 26, 2015, etc.) (the Constitutional Court Decision 2009HunBa17, etc.). Accordingly, the above provision was retroactively invalidated on October 31, 2008, following the date on which the previous decision of constitutionality (the Constitutional Court Decision 2007HunBa17, Oct. 30, 2008, etc.) was made in accordance with the proviso of Article 47(3) of the Constitutional Court Act.

C. Meanwhile, in a case where the provisions of the Punishment Act retroactively lose its effect due to the Constitutional Court’s decision of unconstitutionality, the defendant’s case prosecuted by applying the pertinent provisions constitutes a case where the defendant’s case is not a crime.

(See Supreme Court Decision 2009Do9949 Decided May 13, 201, etc.). 3. Conclusion, 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.