준강간
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
except that, for a period of four years from the date this judgment becomes final and conclusive.
The decision of the court below on the grounds of appeal (three years of imprisonment) is too unreasonable.
The grounds for appeal by authority shall be examined ex officio prior to the judgment.
If it is impossible or considerably difficult to resist due to the same assault and intimidation and sexual intercourse over several occasions, it shall be deemed that the act constitutes a single continuous act, not a substantive concurrent act, inasmuch as it can be seen as a single continuous act by deeming the offender’s intent, criminal time, and place for the crime (see, e.g., Supreme Court Decisions 70Do1516, Sept. 29, 1970; 2002Do2581, Sept. 4, 2002). The lower court determined that “The Defendant, while engaging in on-the-spot education of the victims who are new members, had the victim first frightened while drinking together, had the victim under the influence of drinking alcohol in Gangnam-gu Seoul, and had been raped once after suppressing another victim’s resistance on the body of the victim, and had the victim frightd due to the said rape and rape continued to have been raped by the victim.
“In recognition of the charge of rape” as guilty, each of the above rapes was deemed as substantive concurrent crimes, and the applicable punishment was determined.
However, as stated in the above facts charged, in case where the defendant has prevented the victim's resistance at the same place and has committed three-time sexual intercourses with the victim, each act of sexual intercourse can be deemed as one continuous act. Therefore, it is reasonable to view that it constitutes a simple one crime rather than a substantive concurrent act.
Nevertheless, there is a substantive concurrent relationship between the three-time sexual intercourses by the defendant 37 of the Criminal Code.
The judgment of the court below is erroneous in the misapprehension of legal principles as to the number of crimes.
Therefore, the judgment of the court below should be reversed ex officio.