Whether a relative by marriage formed by a so-called so-called "relative in a de facto marital relationship" under Article 7 (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof constitutes "relative in a de facto relationship" (affirmative)

The substance of a marriage prescribed by the Act is all the forms prescribed by the Act, i.e., a marriage report, which is formed by a so-called de facto marriage not recognized as a legal marriage, also constitutes a relative under the de facto relationship as provided by Article 7(5) of the Act on the Punishment of Sexual Crimes and Protection of Victims. Although our legal system has a provision prohibiting a double marriage by adopting a partial wife system, the time of violation does not provide for the grounds for nullity of marriage, but only by prescribing only the grounds for annulment of marriage, it remains effective until the revocation of a marriage, and thus, it does not change from the so-called de facto marriage.

Article 7 (1), (4), and (5) of the Act on the Punishment of Sexual Crimes and the Protection of Victims Thereof

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Attorney Lee Sang-soo (Korean)

Seoul High Court Decision 2000No3180 delivered on September 5, 2001

The appeal is dismissed.

Article 7 (1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof provides that if a person who has a relative commits a crime under Article 297 of the Criminal Act, he/she shall be punished by imprisonment for not more than five years, and Article 7 (4) of the same Act provides that the scope of the relative under paragraph (1) shall be the relative within the fourth degree and the relative by marriage within the second degree, and Article 7 (5) of the same Act provides that the relative shall include the relative by de facto relationship.

Although the substance of a marriage prescribed by law has both the forms prescribed by law, i.e., marriage report, and so-called marriage formed by a so-called de facto marriage, which is not recognized as a legal marriage, constitutes a relative under the de facto relationship provided by Article 7(5) of the same Act (see Supreme Court Decision 9Do5395, Feb. 8, 2000). Although our legal system has a provision prohibiting a double marriage by adopting a partial one-day principle, the time of violation does not stipulate the grounds for nullity of marriage, but only by prescribing only the grounds for annulment of marriage, the same remains effective until the revocation of a marriage, and thus, it does not change by a de facto marriage.

Nevertheless, the court below erred in holding that even if a de facto marital relationship with a substance of marriage is a de facto marital relationship, it does not constitute a relative in a de facto relationship as provided by Article 7(5) of the above Act on the ground that one of the parties to a de facto marital relationship is not entitled to legal protection equivalent to a de facto marital relationship established by a party to a de facto marital relationship with a third party, barring special circumstances.

However, in comparison with the records, it is reasonable to find out facts as stated in the judgment of the court below based on the evidence adopted by the court below, and determine that the defendant and the non-indicted did not constitute a substance of the marital life under social norms with the intention of marriage in light of the circumstance where the defendant and the non-indicted were living together, the period and contents of living together, the relationship between family members, the existence of the intention of marriage between the two persons, etc. In addition, it is reasonable to find that the defendant and the non-indicted did not constitute a de facto marital relationship, and as long as the court below's fact-finding and judgment are justified, the judgment below'

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

Justices Son Ji-yol (Presiding Justice)