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(영문) 대법원 1990. 9. 28. 선고 90도603 판결
[간통][공1990.11.15.(884),2245]
Main Issues

In a case where a criminal defendant, who illegally withdrawn, was living together with the non-party and the criminal defendant files a criminal complaint for a crime of adultery, whether the criminal defendant can be deemed to have filed a criminal complaint for all adulterys from the time of the withdrawal to the time of his/her living together (affirmative)

Summary of Judgment

In the case of complaint against adultery, unless there are special circumstances to deem that the complainant does not have to punish any criminal act during the period, unless the complainant specified the time and termination period, it shall be deemed that the complainant expressed his/her wish to punish all the criminal acts during that period, and it is reasonable to deem that the complainant has been specified to that it was specified to that extent. Thus, while the complainant found the defendant without permission on December 25, 1986, he/she was found to have been living with the non-party on July 9, 198, 23:00, while the complainant was found, it shall be deemed that the complainant was just to have discovered that the defendant was living with the non-party on July 9, 198, and that if the defendant's act was to be punished, it shall be deemed that the complaint was filed against all the prison acts between December 25, 198 and July 23:00, 198.

[Reference Provisions]

Article 229 of the Criminal Procedure Act, Article 241 of the Criminal Act

Reference Cases

Supreme Court Decision 84Do1704 decided Oct. 23, 1984 (Gong1984, 1871) 84Do1374 decided Mar. 26, 1985 (Gong1985, 652) 85Do1213 decided Jul. 23, 1985 (Gong1985, 122), 87Do114 decided Oct. 25, 198 (Gong198, 1490)

Escopics

Defendant

upper and high-ranking persons

Prosecutor

Judgment of the lower court

Seoul Criminal Court Decision 88No6788 delivered on December 20, 1989

Text

The judgment of the court below and the judgment of the court of first instance are reversed and the case is remanded to the Seoul District Court Southern Branch.

Reasons

As to the Prosecutor’s Grounds of Appeal:

Since the crime of adultery is established by each act of sexual intercourse, it is necessary to confirm which crime is sought for punishment of a criminal even though it is not necessary to specify the crime in detail, even though it is not necessary to specify the time, place, and method of the direct crime. The same is as determined by the court below.

However, since it is common that the contents of the crime cannot be known even if the defendant had committed the crime for non-indicted 1's non-indicted 8's non-indicted 2's act, it shall be deemed that the complainant expressed his/her wish to punish all of the criminal acts during the period unless there are special circumstances to deem that the criminal acts during the period are not punishable, and it shall be reasonable to see that the defendant's act of non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 27's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 16's.

Nevertheless, the court below maintained the judgment of the court of first instance which sentenced the dismissal of prosecution on the charges of this case on the grounds that there is no legitimate complaint as to the charges of this case on the grounds as stated in its holding. Therefore, the appeal pointing this out is justified.

Therefore, pursuant to Article 393 of the Criminal Procedure Act, the original judgment and the first instance judgment are reversed, and the case is remanded to the first instance court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)

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심급 사건
- 서울형사지방법원 1989.12.20.선고 88노6788

따름판례

- 대법원 1999. 4. 23. 선고 99도576 판결 [공1999.6.1.(83),1098]

- 대법원 2000. 2. 11. 선고 99도4123 판결 [공2000.4.1.(103),743]

평석

- 간통죄 고소의 특정방법 가출 배우자 발견 사건 신동운 法文社

- 수사의 개시 @ 간통 @ 강간 @ 강제추행등 @ 강간미수등 @ 준강간 @ 저작권법위반 @ 간통 @ 간통 @ 간통 @ 강간 @ 강간 @ 출판물에의한명예훼손 @ 구 농지의보전및이용에관한법률위반 @ 조세범처벌법위반 @ 농지의보전및이용에관한법률위반 @ 살인 @ 협박 @ 혼인빙자간음등 @ 간통 김희옥 吉安社

관련문헌

- 김희옥 (최신)형사판례해설 수사연구사 1993

- 신동운 간통죄 고소의 특정방법 / 가출 배우자 발견 사건 (판례분석) 신형사소송법 . Ⅱ / 법문사 2012

- 고원석 간통죄의 고소에 필요한 범죄사실의 특정 정도 대법원판례해설 34호 (2000.11) / 법원도서관 2000

- 신이철 형사절차상 이혼소송의 제기와 취하가 간통고소에 미치는 영향 형사정책연구 19권 2호 (2008.06) / 한국형사정책연구원 2008

- 고원석 간통죄의 고소에 필요한 범죄사실의 특정정도 형사재판의 제문제 . 제5권 : 이용우 대법관 퇴임기념 논문집 5권 / 박영사 2005

참조판례

- 대법원 1984.3.27. 선고 84도50 판결

- 1984.10.23. 선고 84도1704 판결(공1984,1871)

- 1985.3.26. 선고 84도1374 판결(공1985,652)

- 1985.7.23. 선고 85도1213 판결(공1985,1222)

- 1988.10.25. 선고 87도1114 판결(공1988,1490)

참조조문

- 형사소송법 제229조 (위헌조문)

- 형법 제241조 (위헌조문)

본문참조판례

당원 1984.3.27. 선고 84도50 판결

1984.10.23. 선고 84도1704 판결

1985.3.26. 선고 84도1374 판결

1985.7.23. 선고 85도1213 판결

1988.10.25.선고 87도1114 판결

본문참조조문

- 형사소송법 제393조

원심판결

- 서울형사지방법원 1989.12.20. 선고 88노6788 판결