Whether an indictment requirement is amended in cases where a petition for divorce was dismissed and a new petition was filed (negative)

Even if a request for divorce has been filed at the time of notification of the request for divorce, if the request for divorce has been rejected, the request for divorce has not been filed from the first time, and even if a request for divorce has been filed again for the same reason after the above dismissal, the deficiency which occurred in the requirements for indictment of an offense subject to prosecution (com

Article 241 of the Criminal Act, Articles 229 and 327 of the Criminal Procedure Act

Supreme Court Decision 75Do1489 delivered on October 7, 1975, Supreme Court Decision 74Do2577 delivered on November 25, 1975

Defendant 1 and one other

Prosecutor

Seoul Criminal Court Decision 80No6082 delivered on June 3, 1981

The appeal is dismissed.

The prosecutor's grounds of appeal are examined.

According to Article 229 (1) of the Criminal Procedure Act, a complaint shall be filed only after the marriage is terminated or divorce is requested. Thus, it is clear that the absence of a marital relationship or the continuation of a request for adjudication for divorce is valid. This condition shall be met from the time of the institution of public prosecution until the trial is completed. Therefore, a complaint which does not meet the above condition may be filed in violation of the above Article. Even if a request for adjudication is dismissed at the time of the above complaint, it shall be identical to the first request for adjudication to divorce. Even if a request for adjudication is filed again for a divorce for the same reason after the above request for adjudication has been rejected, it shall not be corrected (see Supreme Court Decisions 75Do1489, Oct. 7, 1975; 74Do2577, Nov. 25, 1975). As recognized by the record, the victim again raised a request for adjudication against the Defendants on March 10, 1980, the judgment below which rejected the above request for adjudication by the public prosecutor.

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

Justices Lee Chang-chul (Presiding Justice)