The defendant shall be innocent.

1. The summary of the facts charged is as follows: (a) around February 20, 208, the Defendant was aware that he is a spouse; (b) around February 20, 2008, at the guest room where the number of the Felurine E located in the Gyeongdong-gun, G 401, and (c) around January 10, 2009, the Defendant provided a single sexual intercourse with A and a single sexual intercourse with A at the home of the Defendant’s head of Gumi-si, Gumi-si, 401; and (d) around May 15, 2009, the Defendant provided a single sexual intercourse with A at the home of the Defendant’s head of Gumi-si, Gumi-si, Ga 401.

2. Determination

A. The prosecutor, applying Article 241(1) of the Criminal Act to the facts charged in the instant case, brought a public prosecution by applying Article 241(1) of the Criminal Act, and the judgment subject to a retrial was pronounced guilty, which became final and conclusive January 29

B. However, on February 26, 2015, the Constitutional Court rendered a decision that “Article 241 of the Criminal Act (amended by Act No. 293, Sep. 18, 1953) is in violation of the Constitution” in the case including the 2009Hun-Ba17, etc., and thereby, the said provision of the Act retroactively loses its effect pursuant to Article 47(3) of the Constitutional Court.

However, the provisions of the Act on Punishment decided as unconstitutional pursuant to the proviso of Article 47 (3) of the Constitutional Court Act, if there are previous cases in which the constitutionality is constitutional, shall retroactively lose its effect on the day following the date on which the decision is made. Since the Constitutional Court rendered a decision on October 30, 2008 that the above provisions of the Act do not violate the Constitution (see, e.g., 2007HunGa17, etc.), the above provisions of the Act retroactively lose its effect on October 31, 2008, which is next day.

C. Meanwhile, in a case where the legal provision on punishment becomes retroactively null and void due to the decision of unconstitutionality, the defendant's case which was prosecuted by applying the pertinent legal provision shall be deemed to constitute a crime.

(See Supreme Court Decision 2005Do8317 delivered on June 28, 2007, etc.). The facts charged in this case were finalized after the date of retroactive effect, and the applicable provisions of the facts charged in this case are retroactively effective in accordance with the decision of unconstitutionality as seen earlier.