Defendant

Defendant

Mawalton

Law Firm Rated Law Office, Attorney transferred-type

Chuncheon District Court Decision 2005Ra906 Decided March 14, 2006

The defendant's appeal is dismissed.

The thirty-two days under confinement prior to the pronouncement of this judgment shall be included in the penalty of the original judgment.

1. Summary of grounds for appeal;

A. Judgment dismissing public prosecution

Since the complainant of the instant simple notification suit withdraws the divorce lawsuit against the Nonindicted Party after the decision of the court below, the dismissal of the prosecution against the Defendant should be sentenced.

B. Grounds for mistake of fact

Although the Defendant did not commit a crime identical to the facts charged in the instant case, the lower court convicted the Defendant of all of the facts charged.

2. Determination

A. Judgment on the rejection of prosecution

A complaint under Article 229(1) of the Criminal Procedure Act cannot be filed unless a marriage is annulled or a divorce lawsuit is instituted. As such, the complaint is an effective requirement from the time of institution of public prosecution to the time the trial on divorce is concluded. Even if a divorce lawsuit is instituted at the time of filing of a complaint, notification shall be the same as the first one in a case where the lawsuit on divorce is withdrawn, and the withdrawal of a divorce lawsuit shall retroactively lose its effect, and the same shall also apply even if the lawsuit on divorce is withdrawn after the first instance judgment is rendered (see Supreme Court en banc Decision 75Do1449, Jun. 24, 1975, etc.). Meanwhile, the effect of criminal punishment for a divorce of a spouse without the final intention to resolve the marital relationship is unreasonable in light of the purport of Article 229(2) of the Criminal Procedure Act, and thus, it shall be deemed that there is no special reason to deem that a divorce lawsuit has been withdrawn prior to the absence of a marital relationship or withdrawal of a divorce lawsuit, and thus, it shall be deemed that the divorce lawsuit still remains void or withdrawal of a divorce lawsuit becomes void.

According to the statement of withdrawal of a complaint filed by the complainant and the fact-finding on the family register of the early branch of the Chuncheon District Court, the complainant, the husband of the non-indicted, was confirmed on April 4, 2006 by the court, and the non-indicted, reported the divorce at around 14:55 on which the non-indicted, was filed at his domicile, and then, at around 16:45 on the same day, submitted to this court a letter of withdrawal of the lawsuit to withdraw the divorce lawsuit against the non-indicted who was filed at the time of the instant simple notification. Thus, the complaint of each of the crimes of this case still remains valid without satisfying the requirements that the non-existence of a marital relationship, which is a valid requirement for selective relation, is a valid one.

Therefore, the defendant's argument that the dismissal of prosecution against the defendant should be sentenced as to the facts charged in the cross-section of this case is without merit, since the divorce lawsuit is withdrawn on different premise and the simple notification lawsuit becomes retroactively null and void.

B. Judgment on mistake of fact

According to the evidence duly examined and adopted by the court below, the facts constituting the crime in the judgment of the court below can be sufficiently recognized. Therefore, the defendant's assertion of mistake is without merit.

3. Conclusion

Therefore, in accordance with Article 364 (4) of the Criminal Procedure Act, the defendant's appeal shall be dismissed, and 32 days of confinement in the trial prior to the pronouncement of this decision shall be included in the sentence of the original judgment in accordance with Article 57 of the Criminal Act, and it is so decided

Judges Kim Hong-do (Presiding Judge) Kim Yang-hun et al.