[1] The meaning of the statements in the crime of adultery and the requirements for recognizing any behavior or expression of intention that expresses an appraisal as a document

[2] The case affirming the judgment below which held that the complainant cannot be deemed to have committed adultery solely on the ground that the complainant was living together with his spouse even after having been aware of the adultery

[1] Article 241 (2) of the Criminal Code / [2] Article 241 (2) of the Criminal Code

[1] Supreme Court Decision 2000Do868 decided Jul. 7, 200 (Gong2000Ha, 1909) Supreme Court Decision 2007Do4977 decided Nov. 27, 2008 (Gong2008Ha, 1828)

Defendant

Defendant

Seoul Central District Court Decision 2010Reno8 Decided July 27, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion that no divorce was established between the complainant and his wife

The court below rejected the defendant's assertion that the divorce was not established due to the withdrawal of the divorce lawsuit between the complainant and his wife, etc., on the grounds of the reasoning of the judgment below. However, the court below rejected the defendant's assertion by recognizing the fact that the divorce was established between the complainant and the non-indicted since the complainant filed a claim for judicial divorce against the non-indicted on July 8, 1998 (the decision of commencing a retrial that stated on May 28, 1998) through the decision of commencing a retrial, and the decision of divorce mediation was made on May 28, 1999. According to the records, the fact-finding and the decision of the court below are deemed legitimate, and there is no error of violating the rules of evidence or omitting the judgment, etc., as alleged in

2. As to the assertion that the term of filing a complaint is illegal or unreasonable

The court below acknowledged the facts as stated in its reasoning based on the evidence of employment, and found that the complainant was aware of the correspondence from the defendant on January 8, 1998 and received it from the non-indicted on January 16, 1998, and when the complainant stated the circumstance where the defendant's husband and the non-indicted's physical relation was met at the court of the case subject to review, despite the fact that the complainant stated the physical relation between the defendant and the non-indicted by telephone, even though it was not appropriate until January 8, 1998, in light of the fact that the non-indicted denied the communication between the defendant and the non-indicted, and because there was no evidence to acknowledge it, it was difficult for the complainant to find that the complainant was aware of the physical relation between the non-indicted and the non-indicted on the phone and the non-indicted on September 12, 1997.

According to the records, the above fact-finding and judgment of the court below are justified and acceptable, and there is no error in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to the period of filing a complaint.

3. As to the assertion that an accusation is illegal and not specified

The court below held that the defendant and the non-indicted (which appears to be a clerical error in the judgment of the court below on July 8, 1998) stated the specific time and place of the crime as stated in the facts of the charge through the supplementary statement of August 20, 1998, when the defendant and the non-indicted (which stated in July 9, 1998 in the judgment of the court below on the same time as the defendant and the non-indicted in the same workplace) stated the specific time and place of the crime as stated in the facts of the crime. In light of the records, the court below's decision is just and acceptable, and there is no error in the misapprehension of legal principles as to the specification of the facts of the complaint, as alleged in the grounds

4. As to the assertion that the complainant had expressed livers

In the crime of adultery, one-party act expressing his/her intention to renounce a bad faith with the other party's intention to continue a matrimonial relationship and not to hold the other party liable for such an act upon the other party's knowledge of the other party's communication. Although there is no restriction on the method, it is not easy to explicitly or explicitly, but it is not limited to the method. In order to recognize a certain behavior or expression of intention to express an appraisal as a document, first one must be voluntarily performed with the awareness of the other party's communication, and second, regardless of the other party's communication, it should be expressed in such a way that the true intention to continue a matrimonial relationship is apparent and reliable (see Supreme Court Decision 2007Do4977, Nov. 27, 2008, etc.).

The court below, based on the evidence of employment, acknowledged that the complainant continued to work with the non-indicted 2's prior work and the non-indicted 3's non-indicted 1's non-indicted 2's act on January 16, 1998, taking into account the social difficulties of the complainants suffered when the complainants filed a complaint against the defendant and the non-indicted 2's work, and the future of his children, but did not file a complaint on July 4, 1998, while the complainant filed a divorce lawsuit on July 8, 1999, the non-indicted 2's act without misunderstanding the legal principles as to the non-indicted 2's appearance after the non-indicted 3's death, the complainant's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 3's non-indicted 4.

5. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)