Where only the defendant filed a petition for divorce against the complainant before the institution of public prosecution (negative)

At the time of filing a complaint, only the defendant filed a petition for divorce against the complainant, and as long as the complainant filed a petition for divorce against the defendant only after the public prosecution of this case was instituted, the complainant's complaint did not meet the effective requirements until the prosecution of this case was instituted. Thus, this procedure constitutes invalid in violation of the provisions of law.

Article 241(2) of the Criminal Act; Article 229(1) of the Criminal Procedure Act; Article 327 subparag. 2 of the Criminal Procedure Act

Defendant 1 and one other

Prosecutor

Seoul Criminal Court Decision 82No2183 delivered on July 7, 1982

Each appeal shall be dismissed.

The prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment of the court of first instance maintained by the court below, at the time of the complaint of this case, Defendant 1 filed a request for divorce against the complainant, and the complainant filed a request for divorce only on April 2, 1982 after the prosecution of this case was instituted ( February 24, 1982). Thus, since it is obvious that the above complainant's complaint does not meet the valid requirements until the prosecution of this case was instituted, it is obvious that the above complainant's complaint of this case does not meet the valid requirements. Thus, each of the measures dismissing the prosecution of this case against the defendants pursuant to Article 327 subparagraph 2 of the Criminal Procedure Act is just and it is not erroneous in the misapprehension of legal principles as to the valid requirements for the crime of adultery, which affected the conclusion of the judgment.

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

Justices Lee Jong-soo (Presiding Justice)