The defendant shall be innocent.

1. The summary of the facts charged of the instant case was known to be a spouse A (Marriage with C on February 9, 1995) and the Defendant had sexual intercourse with A around November 2009 at a mutually in and near the Daegu-gu Daegu-gu Incheon Metropolitan Government Industrial Complex, with a view to being a married person.

2. Determination

A. The prosecutor brought a public prosecution against the facts charged in the instant case by applying Article 241(1) of the Criminal Act, and the judgment subject to a retrial that found the Defendant guilty was rendered on November 13, 2014, and became final and conclusive on November 21, 2014.

B. However, on February 26, 2015, the Constitutional Court rendered a decision that Article 241 of the above Criminal Act is unconstitutional (the Constitutional Court Decision 2009HunBa17, Feb. 26, 2015, etc.) (the Constitutional Court Decision 2009HunBa17, etc.). Accordingly, the above provision was retroactively invalidated on October 31, 2008, following the date when the previous decision of constitutionality (the Constitutional Court Decision 2007HunBa17, Oct. 30, 2008, etc.) was made pursuant to the proviso of Article 47(3) of the Constitutional Court Act.

C. Meanwhile, in a case where the provisions of the Punishment Act retroactively lose its effect due to the Constitutional Court’s decision of unconstitutionality, the defendant’s case prosecuted by applying the pertinent provisions constitutes a case where the defendant’s case is not a crime.

(See Supreme Court Decision 2009Do9949 Decided May 13, 201, etc.). 3. Conclusion, the instant facts charged constitute a case that does not constitute a crime, and thus, the Defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.