In a case where a wife filed a complaint against the husband living together with another woman and a divorce lawsuit against the husband, but the husband agreed to re-explosion and withdrawal of the complaint, even if the husband had sexual intercourse with the wife by force, the crime of rape is not established.

Although the wife filed a complaint and divorce lawsuit against the husband living together with another woman, if the husband agreed to take a new place again, and the husband withdrawn the complaint, it cannot be readily concluded that there is no substantial marital relationship between the husband and the husband. Therefore, even if the husband forced sexual intercourse with the wife, the crime of rape is not established.

Article 297 of the Criminal Act

Defendant

Seoul High Court Decision 69No482 delivered on December 11, 1969

The original judgment shall be reversed, and

The case is remanded to the Daegu High Court.

The grounds of appeal by the defense counsel are as follows;

According to the reasoning of the judgment of the court of first instance supported by the court below, a woman who has sexual intercourse with the defendant is the non-indicted 1, whose legal status has not been resolved at the time of sexual intercourse, but has already filed a divorce lawsuit with his wife. In addition, the defendant and non-indicted 1 in substance living with another woman in non-indicted 2 were in the state of withdrawing the consent of the other party or withdrawing the consent of the other party to sexual intercourse, so long as the defendant and the non-indicted 1 were in the state of withdrawing the consent of the other party to sexual intercourse, they are judged to constitute a crime of rape.

However, according to the records, even if the defendant filed a divorce suit at the same time as the defendant filed a complaint for a crime of adultery, it is evident that the court of first instance stated that the defendant had the defendant sent the non-indicted 2 to the non-indicted 2 and withdrawn the complaint after consultation with the non-indicted 1 before the occurrence of the instant sexual intercourse case. Thus, it is difficult to conclude that there is no marital relationship between the defendant and the non-indicted 1, and therefore, it is difficult to conclude that the defendant had been in a state of withdrawal of his/her intention to accept the parties or to waive the rights of the parties. However, even though it is difficult to conclude that the defendant had a state of withdrawal of his/her intention to accept the parties or to waive the rights of the parties, the fact that the defendant was sexual intercourse with the defendant on the premise that there is no right of the parties to the parties, the fact that the defendant had been sexual intercourse

It is so decided as per Disposition by the assent of all participating judges.

Supreme Court Judges Kim Young-chul (Presiding Judge) (Presiding Justice) Mag-gim Kim, Kim Jong-dae and Yang-Namng