[1] The standard for determining whether there was an agreement of the intention of divorce corresponding to the use of adulterys

[2] The case holding that there was an agreement between the parties on divorce equivalent to a final divorce between the parties at the time of a decision to recommend a compromise based on the premise of divorce by submitting a written answer to the effect that divorce is inevitable for the other party to the divorce lawsuit filed by one of the parties to the divorce

[1] The crime of adultery is an offense subject to victim's complaint which can be prosecuted only upon the complaint of the spouse, where the spouse uses the adultery. If the spouse has no intention to continue the marriage and there is an obvious agreement by the intention of divorce, even if the marital relationship remains legally, it shall be deemed that the agreement is included in the agreement as to the specific use of the other party's consent. Whether there was an obvious agreement of divorce intention shall be deemed not only in the case where a written agreement is made, but also in the case where it is recognized that both parties to the marriage have no intention to maintain the marital relationship any more due to various circumstances, such as the parties' speech and behavior, and it may be recognized that there was such agreement by the other party to the divorce request even if it is deemed that there is a circumstance where the other party to the divorce request appears to respond to the agreement.

[2] The case holding that there was an agreement between the parties on divorce equivalent to a final divorce between the two parties at the time of a decision to recommend a compromise based on the premise of divorce by submitting a written answer to the effect that divorce is inevitable for the other party to the divorce lawsuit filed by one of the parties to the divorce

[1] Article 241 of the Criminal Code / [2] Article 241 of the Criminal Code, Article 327 subparagraph 2 of the Criminal Procedure Act

[1] Supreme Court Decision 95Do2819 delivered on February 25, 1997 (Gong1997Sang, 1018), Supreme Court Decision 97Do2245 delivered on November 11, 1997 (Gong1997Ha, 3913), Supreme Court Decision 2000Do868 delivered on July 7, 200 (Gong200Ha, 1909)

Defendant 1 and one other

Defendants

J. H. L.S. Only

Attorney Choi Byung-il

Busan District Court Decision 2006Da5174 Decided April 13, 2007

The judgment of the court below is reversed.

All of the prosecutions of this case are dismissed.

1. Summary of grounds for appeal;

First, even if the defendants committed the crime as stated in the judgment of the court below, there was a clear agreement between the defendant 1 and the non-indicted 1, who is his husband, before that agreement, and the agreement included the express intent of the intention of divorce as to the adultery of this case. Thus, the non-indicted 1's complaint is inappropriate, and the court below erred in the misapprehension of legal principles as to the complaint of the adultery of this case, which affected the conclusion of the judgment.

Second, even if Non-Indicted 1's complaint is lawful, the court below found the defendants guilty of the facts of the crime as stated in the judgment of the court below, since the defendants did not have any access to the date and place as stated in the judgment of the court below.

2. Determination:

First, as to the argument, the public health and the crime of adultery is an offense subject to victim's complaint which can be discussed only when the spouse files a complaint. If the spouse has no intention to continue the marriage and there is an obvious agreement with the intention of divorce, even if the marital relationship remains in force, it shall be deemed that the declaration of intention as to the end of the other party's prior consent is included in the agreement. Whether there was an obvious agreement with the intention of divorce shall be deemed as not only the case where a written agreement has been made in writing but also the case where there is no intention of both parties to maintain the marital relationship in light of various circumstances, such as the parties' speech and behavior, and it may be recognized that there was such agreement with the other party even if the other party appears to respond to the request for divorce (see Supreme Court Decision 2003Do6102, Dec. 11, 2003, etc.).

However, according to the records of this case, Defendant 1 reported to Nonindicted 1 on June 13, 198 the marriage with Nonindicted 2, 200, and reported to Nonindicted 1 on May 8, 2005, Defendant 1 was threatened with knife knife by Nonindicted 1, but Defendant 1 was also subject to a decision of temporary measures against Nonindicted 1 on May 10, 2005 to order 10 meters away from 6th of the place of residence to 6th of the court’s temporary measures, and Defendant 1 did not have any further claim against Nonindicted 2, 600, to the effect that it was difficult for Nonindicted 1 to file a divorce claim against Nonindicted 1, 600, Busan District Court 205da31367, and that it was difficult for Nonindicted 2 to continue to marry the marriage with Defendant 1 on December 20, 205.

If the circumstances before and after the complaint of this case are the same as above, in light of the above legal principles, the complaint of this case was submitted by Nonindicted Party 1, who is the complainant, to the effect that the divorce between Defendant 1 and Defendant 1 is inevitable, and around March 23, 2006, when the court made a decision to recommend reconciliation pursuant to the mediation clause prepared by Nonindicted Party 1, the complainant, it appears that he had no intention to maintain the marriage any longer by mutual agreement as to the claim for divorce between them. Thus, the criminal facts of the judgment of the court below, which constitute the subsequent adultery, constitute a case where Nonindicted Party 1 et al. al. al. spons the adultery between Defendant 1 and Defendant 1. Thus, the complaint of this case cannot be deemed a legitimate complaint.

Therefore, although the court below should dismiss all public prosecutions against the defendants under Article 327 subparagraph 2 of the Criminal Procedure Act, it is necessary to dismiss all the public prosecutions against the defendants as stated in the court below's decision, it is erroneous in the misapprehension of the legal principles as to complaint in the crime of adultery, thereby affecting the conclusion of the judgment. Thus, the first defense of the defendants

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendants' appeal is well-grounded, and it is again decided as follows.

The facts charged of this case are the persons who were married with the non-indicted 1 on June 13, 1989. At around 23:00 on July 3, 2006, the defendant 1 was a spouse who was parked in the children's substitute park parking lot located in the Seocho-gu Busan Metropolitan City, Busan Metropolitan City. At around 23:0 on July 3, 2006, the defendant 2 and a single sexual intercourse with the defendant 2, and the defendant 2 was even aware of the defendant 1's spouse, and the defendant 1 and a single sexual intercourse with the defendant 1 as above. As seen above, this constitutes a case where the prosecution procedure becomes null and void in violation of the provisions of the Criminal Procedure Act, and the prosecution of this case against the defendants is dismissed. It is so decided as per Disposition by the assent of all Justices.

Judges Park Jong-hee (Presiding Judge)