Where a divorce lawsuit was instituted at the time of the written notification but the complaint was dismissed, the validity of the complaint.

According to Article 229(1) of the Criminal Procedure Act, a complaint shall not be filed unless the marriage is annulled or a divorce lawsuit is instituted. Thus, the complaint shall be deemed valid under the condition that the absence of a matrimonial relationship or the continuation of a divorce lawsuit is a valid condition, and such condition shall be met from the time the public prosecution is instituted to the time the trial is concluded. Therefore, a complaint which does not meet the above conditions shall be deemed to be a complaint which violates the above provisions, and even if the complaint was instituted at the time of the complaint at the time of the above complaint, if the complaint is dismissed in the procedure, the complaint shall be deemed to have not

Article 241 of the Criminal Act, Article 229(1) of the Criminal Procedure Act

Supreme Court Decision 75Do1489 delivered on October 7, 1975 (Gong1975, 8703) 81Do2391 delivered on December 8, 1981 (Gong1982, 147) 85Do1744 delivered on September 24, 1985 (Gong1985, 1466)

Defendant

Defendant

Attorney Rent

Incheon District Court Decision 93No808 delivered on February 3, 1994

All the judgment of the court below and the judgment of the court of first instance are reversed. The prosecution of this case is dismissed.

We examine the grounds of appeal.

According to Article 229 (1) of the Criminal Procedure Act, a complaint shall not be filed unless the marriage is annulled or a divorce lawsuit is instituted. Thus, the complaint shall be valid as the non-existence of a matrimonial relationship or the continuation of a divorce lawsuit, and such conditions shall be met from the time of the institution of public prosecution until the conclusion of the trial. Therefore, a complaint which does not meet the above conditions may be filed in violation of the above provisions, and even if a suit for divorce was instituted at the time of the complaint, it shall be deemed that the complaint does not institute a divorce lawsuit from the first time (see Supreme Court Decision 81Do2391, Dec. 8, 1981).

In light of the records, the complainant filed a divorce lawsuit against his wife on September 21, 1992 against the Incheon District Court on the 19th of that month, but on December 24 of that year, the above complaint was dismissed by the presiding judge's order (see, e.g., Supreme Court records No. 160 of the trial record). In addition, the prosecutor filed a public prosecution against the defendant on March 17, 1993. In this case, it is evident that the above complainant's complaint of this case does not have a valid condition. Thus, the indictment of this case based on such complaint constitutes a case where the procedure of this case is null and void in violation of the provisions of the law. The arguments on this point are with merit.

Therefore, the judgment of the court below is reversed, and the case is sufficient to be decided at the party members. As seen above, the judgment of the court of first instance which reversed the defect in the indictment procedure and rendered a substantive judgment, and the prosecution of this case is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Jong-chul (Presiding Justice)