A person who has a right to file a complaint where his/her spouse dies;

When a spouse who is a victim of a crime of adultery dies, his/her sibling can be a legitimate complainant unless it is against the clearly expressed will of the victim during his/her lifetime, and the complaint filed by him/her is lawful as a requirement for indictment of a crime of adultery.

Article 241(2) of the Criminal Act; Article 225(2) of the Criminal Procedure Act

Defendant

Prosecutor

Seoul High Court Decision 67No56 delivered on May 18, 1967

The original judgment shall be reversed, and

The case is remanded to the Gwangju High Court.

The gist of the grounds of appeal by the prosecutor of the Gwangju High Public Prosecutor's Office is that the crime of adultery is legitimate only upon the complaint of the spouse, and even if the spouse's relative relationship is dead, the case at issue is deemed unlawful upon the complaint of the spouse. However, in the case where the spouse who is the victim is dead, the victim's sibling may be a legitimate complainant pursuant to Article 225 (2) of the Criminal Procedure Act, and the case at issue is legitimate as the requirement for indictment of adultery. For this reason, Article 241 (2) of the Criminal Act provides that the crime of adultery shall be prosecuted upon the complaint of the spouse. Unlike Article 260 (3) of the former Criminal Procedure Act, the court below held that the victim can exercise the right to file a complaint in the case of adultery and that Article 241 of the Criminal Procedure Act can not be interpreted as an exception to Article 25 (2) of the Criminal Procedure Act where the victim's spouse's relative relationship is no other than the victim's victim's right to file a complaint, and thus, the other spouse's right to file a complaint cannot be excluded.

However, since the victim's explicit intent does not go against the victim's explicit intention, it is reasonable to interpret that the victim in this Article excludes the spouse who is the victim of the crime of adultery and thus, in the case of the crime of adultery, the relative of the victim in this Article shall have the right to file a complaint unless it is against the clearly expressed intention during the existence of the victim's death. In this case, it is reasonable to interpret that the victim's complaint is legitimate pursuant to Article 225 (2) of the Criminal Procedure Act, and therefore, it is reasonable to interpret that the victim's complaint meets the requirements for filing a complaint pursuant to Article 241 (2) of the Criminal Act, and therefore, it is not erroneous in the court below's rejection of a public prosecution on the ground that there is no complaint by the spouse of the crime of adultery.

Therefore, we decide to reverse the original judgment on the above grounds, and without putting any judgment on the Defendant’s grounds of appeal, pursuant to Articles 390, 391, and 397 of the Criminal Procedure Act, we decide to reverse the original judgment on the grounds of the above. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Judgment of the Supreme Court (Presiding Justice) Na-dong, Ma-dong, and Ma-dong, the last Ma-man