성폭력범죄의처벌등에관한특례법위반(특수강간)
The judgment of the court below is reversed.
Defendants shall be punished by imprisonment for three years.
However, each of the four years against the Defendants.
1. Summary of grounds for appeal;
A. Defendant A1 did not rape the victim first, but Defendant B raped the victim first, and Defendant A raped the victim.
2) The crime of rape in this case constitutes an impossible crime, since the victim was not in an impossible state to resist at the time of the crime of rape in this case.
3) The sentence of the lower court’s unfair sentencing (a long-term three years of imprisonment, a short-term two years and six months, and an order to complete a sexual assault treatment program at 120 hours) is too unreasonable.
B. Defendant B (1) misunderstanding the legal doctrine, and thus, the victim was not at the time of committing the crime of rape, and thus constitutes an impossible crime.
2) The sentence of the lower court’s unfair sentencing (a 3 years of imprisonment, 120 hours of sexual assault treatment program program program program) is too unreasonable.
2. Determination:
A. Examining the evidence duly adopted and examined by the court below as to Defendant A’s assertion of mistake of facts, the court below’s determination that this part of the facts charged is legitimate, and there is no error of law such as misconception of facts as alleged in the grounds for appeal.
B. As to the Defendants’ misapprehension of the legal principles and the Defendants’ wrongful assertion of sentencing, first of all, the Defendants’ assertion of misunderstanding of the legal principles is asserted only after the submission period, and it is not a legitimate ground for appeal.
B) In addition, Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of a person’s mental or physical loss or resistance impossible condition shall be punished as such with the crime of rape or forced indecent act under Articles 297 and 298 of the Criminal Act. Here, the term “a state of resistance impossibility” means a case where psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than the loss of mind and body under Articles 297 and 298 of the Criminal Act (see, e.g., Supreme Court Decisions 98Do3257, May 26, 2000; 2009Do2001, Apr. 23, 2009); and records.