피고인과의 재혼과 간통고소의 효력

Abstract

The aim of this paper is to examine the Supreme Court decision on December 10, 2009, 2009Do7681. Specifically, this adultery case agree that Supreme Court Decision on June 24, 1975(No. 75Do1449Unanimously Agreed Verdict) previously sentenced rejection of the statute,when the divorce suit is withdrew or the accuser remarry with the accused again. It is covered in Article 229, Section 1, 2, of the Criminal Procedure Act. 'Rescission' in criminal law, however, differentiates from the 'Rescission' in civil law, that is, 'Revocation' in civil law. Accordingly,'Rescission' in criminal law will not admit retroactive punishment such as our civil law. It must admit, especially when it obviously violates Principle of subjective indivisibility of a complaint, for the crime indictable upon a complaint(Article 233) and rescission period of a complaint(Article 232, Section 1). From this point of view, I think that the judgment of Korean Supreme Court is unjust. Therefore, I examined measures to extenuate unfair punishment,although adultery is provided in the criminal law as a crime of dual punishment(Article 241, Section 1). I reviewed the various remedy in criminal procedure act for the other party of this adultery case, that is,grounds to appeal the court's decision, but I found that there is no remedy in either case. It, of course, is very important to keep the final ruling from legal stability of view. But it seems like that the Supreme Court lost its opportunity to reconsider the resolute ruling which have been hold since 1975(No. 75Do1449 Unanimously Agreed Verdict). The Supreme Court has to fully understand a goal of the criminal justice system and then they should be anticipate what the precedent's effect on actual work. For this reason, this judgment is lack of considerations about a highly sophisticated theory and reality situations. In connection with the criminal law amendment, it's a good thing that an active discussion about the deletion of adultery, in every ways of iniquity of real work and the theoretical problems of adultery.