The judgment of the court below is reversed.

Defendants are not guilty.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

A. The Defendants did not engage in sexual intercourse as stated in the facts charged.

B. The Constitutional Court declared that Article 241 of the Criminal Act is unconstitutional, and the Defendants are not guilty.

C. The complainant filed a complaint through the data on illegal information collection. The evidence was collected in an unlawful manner.

2. A summary of the facts charged was married with Nonindicted Party D on June 21, 199, and, around 00:30 on April 18, 2014, the said Defendant was married with Defendant B once sexual intercourses with Defendant B from 305 room located in Seongdong-gu, Soyang-gu E, Seongbuk-gu, Seongbuk-gu, Seoul, and ② Defendant B knew that Defendant A was his spouse, and was sexual intercourses with Defendant A at the same time and at the same place.

3. Determination

A. Before the Defendants’ assertion of mistake of facts, the Constitutional Court rendered a decision of unconstitutionality as to Article 241 of the Criminal Act, which is the applicable provisions for the instant charges, in the case of 2009Hun-Ba17205 (combined) on February 26, 2015.

B. As a result of the decision of unconstitutionality, Article 241 of the Criminal Act, based on the proviso of Article 47(3) of the Constitutional Court Act, lost its effect retroactively on October 31, 2008, following the day when the previous decision of constitutionality was made (the Constitutional Court Decision 2007Hun-Ga17, Oct. 30, 2008).

C. In a case where the penal law or legal provision becomes retroactively null and void due to the decision of unconstitutionality, the Defendant’s case indicted by applying the pertinent provision constitutes a crime (see, e.g., Supreme Court Decision 2009Do949, May 13, 201). As such, the lower judgment convicting this part of the facts charged was no longer maintained.

4. In conclusion, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the defendants' appeal is with merit.

[Ad Hoc] The instant case.