[성폭력범죄의처벌및피해자보호등에관한법률위반(특수강간)] 확정〈부부 강간죄 인정 최초 사건〉[각공2009상,460]
In a case where the wife of the Republic of Korea refused a sexual intercourse on the ground that the wife was in the middle of the birth, and the husband threatened the wife with the gas sprayers and the excessive intimidation, and had sexual intercourse once again, the case recognizing the legal wife as the object of the crime of rape.
In a case where the wife of the Republic of Korea refused a sexual intercourse on the ground that the wife was in the middle of the birth, and the husband threatened the wife with gas sprayers and the coercion to suppress the wife’s resistance, the case holding that the wife recognized the legal status as the object of the crime of rape by deeming the “sexual self-determination,” which is not a “sexual self-determination,” which means the protection of the legal interest of the crime of rape, to be an “sexual self
Article 6 (1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and Article 297 of the Criminal Act
Defendant
Jin-sicking
Attorney Park So-young
A defendant shall be punished by imprisonment for not less than two years and six months.
However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.
피고인은 2008. 7. 26. 11:00경 부산 남구 우암2동 194-113에 있는 피고인의 집에서, 처인 피해자(필리핀 국적의 외국인)가 생리기간 중이어서 성관계를 거부하자 위험한 물건인 가스분사기와 과도(칼날길이 12㎝)를 피해자의 머리와 가슴에 겨누고 죽여 버리겠다고 협박하면서 피해자의 유두와 음부를 자르는 시늉을 하여 피해자의 반항을 억압한 후 피해자의 옷을 모두 벗게 하고 1회 간음하여 피해자를 강간하였다.
1. Defendant's legal statement;
1. The prosecutor's office and the police's statement of victims;
1. The part of each victim's statement among the police officers and prosecutor's interrogation protocol against the defendant
1. A complaint filed by the victim;
1. The clothes and photographs of the victim who tear gas sprayers or suspects are placed in liquid form;
1. A report on criminal investigation intelligence and a report on criminal investigation (a photographing, such as an apology and investigation of the situation);
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 6 (1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and Article 297 of the Criminal Act.
1. Discretionary mitigation;
Articles 53 and 55(1)3 of the Criminal Act
1. Suspension of execution;
Article 62(1) of the Criminal Act
Legal grounds to recognize the wife as the object of the crime of rape
1. The prosecutor indicted the Defendant for a special rape under the Special Act on the premise that the crime of rape is established under the Criminal Act with respect to the charge of rape, as in the judgment of the Defendant.
2. On the other hand, the Defendant led to the confession of all crimes, and his defense counsel did not present any special opinion on the legal principles.
3. However, there is a variety of opinions about whether to recognize the forced sexual relationship between husband and wife as the crime of rape under the Criminal Act. Therefore, a party member is in accordance with the application of the law on the case of this case, and the submission of materials about the issue and deliberation thereon, and then presents his opinion about the rape of the married couple as shown in the attached Form.
1. On August 30, 2006, the Defendant married with the victim of the Republic of Korea nationality on August 30, 2006 through a marriage information company, and lived with the victim for four months thereafter. However, since the Defendant did not grant his living expenses, the victim continued to engage in violence, etc. in the state of drinking, and the victim was living while working in the plastic plant located in Kim Jong-hae after leaving home without showing any further awareness. In addition, considering the immigration office's employee as illegal aliens, it was transferred to the Defendant again on July 15, 2008. The degree of five days from that time did not seem to be the problem between two persons due to sexual intercourse by agreement, but since July 21, 2006, the victim refused the sexual intercourse, the Defendant did not participate in his sexual desire, and the victim did not take advantage of his or her ability to take part in his or her computer, and the victim took part in the sexual intercourse in his or her ability to commit the crime of this case by using violent means in its reasoning.
2. In other countries where a person is solely believed and believed to leave the country and his/her family members, the State and his/her family are not in language, and there is no friendship, and if the victim was placed in a difficult place without being able to speak, the Defendant ought to be careful and emotionally considered. However, the Defendant is unable to take advantage of his/her own sexual self-determination and behavior without being able to attract the victim to live in the Republic of Korea if he/she had the victim go through marriage and reported marriage in the Philippines, and he/she got the victim to move in the Republic of Korea. However, the Defendant cannot be considered to be able to take advantage of his/her own sexual self-determination and behavior without being able to bring him/her to work in the poor state, and if he/she continues to work in the same manner as his/her mother authority, he/she cannot be considered to be able to take advantage of his/her own justifiable sexual self-determination and behavior without being able to bring him/her out his/her ability to live in the Republic of Korea.
3. However, even though the Defendant has both committed the instant crime and the latter is late, the circumstances should be taken into account, such as the following: (a) the Defendant’s mistake is divided in depth with his own fault due to the fluence of “animals”, (b) the victim left Korea for one time and returned to Korea; and (c) the victim was negligent in making efforts to communicate and communicate with the Defendant, the husband, who is the husband, and its circumstances; (d) there is no criminal history for the Defendant in the past; and (e) the victim was able to take the Defendant’s action by cancelling the complaint against the Defendant and then having the Defendant arranged.
4. The punishment of the defendant for the crime of this case shall be determined and sentenced as ordered by the law within the scope of the term of punishment, comprehensively taking into account all the sentencing conditions set forth in the public trial, such as the age, character and conduct, family environment, occupation, motive, means and consequence of the crime, and the circumstances after the crime.
Judges Cho Jong-ju (Presiding Judge) (Presiding Judge) Kim Tae-tae