Effect where a complainant withdraws his/her claim for a divorce after the judgment of the court of first instance on the crime of adultery.

If a complainant withdraws a request for divorce after the judgment of the court of first instance on the crime of adultery, due to the retroactive effect of withdrawal, the written notice becomes retroactively null and void. As such, the prosecution for the crime of adultery also becomes void in violation of the provisions of the Acts and subordinate statutes.

Articles 229, 232, 327, and 241 of the Criminal Procedure Act

Supreme Court Decision 75Do1449 delivered on October 7, 1975

The defendant's defense attorney Park Jae-ho

Busan District Court Decision 81No1325 delivered on June 5, 1981

The judgment of the court below and the judgment of the court of first instance shall be reversed.

The prosecution of this case is dismissed.

The defendant's defense counsel's grounds of appeal are examined.

According to Article 229 (1) of the Criminal Procedure Act, in the case of adultery, a complaint cannot be filed unless marriage is annulled or divorce lawsuit is instituted. Thus, it is clear that the simple notice suit has a valid condition. This condition must be satisfied from the time of prosecution to the time of termination of trial, and a complaint which does not meet the above condition is a complaint in violation of the above provisions. According to the records, the complainant filed a complaint on January 22, 1981 with Busan District Court for a divorce trial and then withdrawn it on June 10 of the same year after the judgment of the court below was made to the Busan District Court. Thus, even if the withdrawal date is the same as the judgment of the court below of this case after the issuance of the judgment of the court of this case, the complaint of this case is retroactively void, and therefore, in this case, the complaint of this case is also subject to prosecution, and thus, it constitutes a violation of the provisions of the Acts and subordinate statutes, and thus, the complaint of this case becomes null and void.

Therefore, the judgment of the court below and the judgment of the court of first instance are reversed, and this case is sufficient for the direct judgment of the party members, and therefore, the party members will be able to get self-employed in accordance with Article

The summary of the facts charged of this case is as follows: "The defendant, who has a spouse, was sent twice from the room above the room above the room above the room above the room above the room above the room above the room above the above in the room above the room around January 4, 1981, at around 20:30 on December 31, 1980 with Co-defendant 21:30 on December 31, 1980 with the court below's decision that "the prosecution of this case is null and void due to the violation of the provisions of law", and the prosecution of this case is dismissed by applying Article 327 subparagraph 2 of the Criminal Procedure Act by applying Article 327 subparagraph 2 of the Criminal Procedure Act.

Therefore, this decision is delivered with the assent of all Justices who reviewed the appeal.

Justices Lee Jong-woo (Presiding Justice)