(영문) 수원지방법원 2014.06.19 2014노1392 | 리걸엔진

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(영문) 수원지방법원 2014.06.19 2014노1392

간통

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The judgment below

The part against the defendant shall be reversed.

A defendant shall be punished by imprisonment for four months.

except that this judgment.

Reasons

1. The defendant asserts to the effect that the decision of the court below is unfair since the complaint is revoked by agreement with the complainant after the decision of the court below.

2. According to Article 241(2) of the Criminal Act, a crime of adultery is an offense subject to complaint which may be punished only when a spouse files a complaint. According to Article 229(1) of the Criminal Procedure Act, a complaint may be filed after the marriage is terminated or a divorce lawsuit is instituted. According to Article 241(2) of the same Act, a complaint shall be deemed to have been revoked when a marriage is re-Marriage or a divorce

However, according to Article 232 (1) of the Criminal Procedure Act, cancellation of a complaint in an offense subject to victim's complaint can only be made before the judgment of the court of first instance is rendered. Thus, in a case where a complaint is revoked after a judgment of the court of first instance is rendered, the cancellation is invalid, and the complaint still remains effective, and it cannot be tried to dismiss public prosecution

According to the records, the judgment of the court below was pronounced on February 20, 2014, and the complainant revoked the complaint against the defendant on February 24, 2014, and the defendant and the complainant reached a judicial compromise on March 28, 2014 with the content that "the complainant and the defendant are divorced." The cancellation of the complaint by the complainant is made after the judgment of the court of first instance, which is the judgment of the court of first instance, and there is no evidence to deem that the complainant revoked the complaint concerning the facts charged in this case and withdrawn the intention of punishment before the judgment of the court of first instance, and since the legal marital relationship has been terminated by judicial divorce, the complaint against the complainant and the defendant meet the requirements for the complaint in the crime of adultery is still valid.

However, the defendant agreed as above with the complainant, and the complainant did not want to punish the defendant.

참조조문

유사 판례

-대법원 1986. 6. 24. 선고 86도482 판결

-서울중앙지방법원 2009.05.20 2008노825

-서울중앙지방법원 2009. 7. 23. 선고 2009노931 판결

-대구지방법원 2007.12.7.선고 2007고단4356 판결

-대법원 1985. 8. 20. 선고 85도1171 판결