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

Article 7(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof provides that a relative shall be punished by imprisonment for not more than five years if the person commits a crime under Article 297 of the Criminal Act. Article 7(4) of the same Act provides that the scope of relatives under paragraph (1) shall be relatives within the fourth degree of relationship and relatives within the second degree of relationship within the second degree of relationship. Article 7(5) of the same Act provides that a relative shall include relatives in a de facto relationship. Article 7(5) of the same Act provides that both the substance of marriage prescribed by the Act are all the forms prescribed by the Act, i.e., in a de facto marriage that is formed by a so-called de facto marriage that is not recognized as a legally marital relationship, even if

[Plaintiff-Appellant] Plaintiff 1 and 115 others (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Kim Yong-sik

Seoul High Court Decision 99No2400 delivered on November 23, 1999

The appeal is dismissed.

Article 7(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof (amended by Act No. 5343, Aug. 22, 1997; effective January 1, 1998) provides that when a relative of 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 of paragraph (1) shall be a relative within the fourth degree and a relative within the second degree, and Article 7(5) of the same Act provides that the relative of paragraph (1) shall include a relative of a de facto relationship. Article 7(5) of the same Act provides that the relative of a relative of a relative of a third degree shall be a relative of a relative within the fourth degree and a relative of a second degree. Although the marriage is all the substance of the marriage stipulated by the Act, the marriage is formed by the so-called de facto marital relationship

In this case, as recognized by the court below, even though there was no report of marriage between the defendant and the non-indicted victim, as recognized by the court below, if the so-called de facto marriage relationship was established by satisfying all the substance of the marriage prescribed by law, the defendant constitutes a relative (the relative within the second degree) under the de facto relationship as provided by Article 7 (5) of the above Act with the victim who is a father and is a father of the former husband, and Article 7 (1) of the above Act applies to the act of rape by the defendant. The judgment below to the same purport is just, and there is no error of law

Therefore, since the appeal is without merit, the appeal is dismissed as per Disposition.

Justices Cho Chang-chul (Presiding Justice)