성폭력범죄의처벌등에관한특례법위반(강간등치상)등
The defendant's appeal is dismissed.
The gist of the grounds for appeal or misunderstanding of the legal principles (related to the injury caused by rape) is not caused by the Defendant’s attempted rape. Thus, the Defendant’s act does not constitute the crime of injury caused by rape, and only constitutes concurrent crimes of attempted rape and injury (the Defendant asserted that he did not have any intent to rape with the reason for appeal). However, the Defendant’s allegation to the effect that there was no intention to commit rape with the victim on the first trial date of the first trial of the trial of the first instance. The aforementioned assertion of mistake cannot be a legitimate ground for appeal, and ex officio review the above facts.
2. A. As seen in paragraph (1), the Defendant’s intent to rape can be fully recognized. Thus, there is an error of law due to mistake of fact as pointed out by the Defendant in the lower judgment.
However, the court below found the Defendant guilty of the injury resulting from rape. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
Mental and physical disorder (related to the injury caused by rape) committed the instant crime, the Defendant was in a state of mental and physical weakness by taking a high blood pressure and drinking alcohol at the time of the instant crime.
In light of the various sentencing conditions in this case, the punishment sentenced by the court below (the completion of imprisonment with prison labor for a period of 5 years and 80 hours) is too unreasonable.
Judgment
In light of the above legal principles, the crime of injury resulting from rape is established when the victim suffered injury, even though the victim was guilty of a simple attempted rape. In the crime of injury resulting from rape includes not only the crime of assault used as a means of rape, but also the case where the act of sexual intercourse itself was committed, or where the act resulting from rape was committed (Supreme Court Decision 2003Do1256 Decided May 30, 2003). In light of the above legal principles, the evidence duly adopted and investigated by the Health Board, the court below, and the court of first instance.