[2] The case holding that there is a conspiracy and cooperative relationship with regard to rape

[2] The case reversing the judgment of the court below on the ground that the defendants found the defendants not guilty of violating the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. on the ground that the court below erred by misapprehending the rules of evidence and the legal principles on joint crimes, which affected the conclusion of the judgment, on the ground that the court below acquitted the defendants of the violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, on the ground that, inasmuch as both persons were waiting to commit rape in shift outside the visit while they continuously engage in the act of rape and the other party was waiting to commit rape.

1. According to the reasoning of the first instance judgment maintained by the lower court, the summary of each of the facts charged against the Defendants and the determination as to the violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof (hereinafter “Sexual Crimes Punishment Act”) are as follows.

The summary of the facts charged of this case is as follows: at around 18:00 on January 21, 1995, at the bus stops near the bus stops located in the Dong-dong, Gwangju-gu, Gwangju, the defendant reported that the behavior of the victim (the victim (the victim was 14 years of age) was passed, and the talk was divided into a mountain, which is near the city, and talked with drinking, and the above victim intentionally went through drinking and drinking so that he was deprived of consciousness by drinking the above victim. At the same time, the defendant 2 was on the truck he was on board the above victim's house, and went home at the house of the defendant 2, who was located in the same 53-year-dong, so that he was able to have the victim do not have sexual intercourse with the above victim, and the victim's sexual intercourse with the above victim's drinking, and the victim's sexual intercourse with the above victim's sexual intercourse with the victim's view on February 10, 2010.

The court of first instance maintained by the court below as to the above facts by taking account of the evidence cited in the above judgment, and it is hard for the above defendants 1 to find the above facts that they had sexual intercourse with the victim at around 01:0, by taking advantage of the victim's state of refusing to resist under the influence of alcohol at the time of the defendant 2, and Defendant 2 had sexual intercourse with the victim at the above time. From among the attempts that the above defendants 1 had sexual intercourse with the victim, it was hard for the above facts to find that the above defendants had sexual intercourse with the victim, and that the above defendant 1 had sexual intercourse with the victim after going to a nearby bus stop and closed the above door, and it was hard for the above defendants 2 to find that the above defendants had sexual intercourse with the victim at the time of the above interview with the above defendant 1, and it was hard to find that the above defendants had sexual intercourse with the victim at the time of the above interview with the victim, and it was hard to find that the above defendants 2 had sexual intercourse with the victim's view to deny the above facts.

2. However, in a case where two or more persons of Article 6(1) of the Sexual Violence Punishment Act jointly commit the crime under Article 297 of the Criminal Act, a conspiracy and objective requirement should be shared to establish the crime of special rape. The conspiracy is not required under the law, and thus, the co-processing will of the crime directly or indirectly go through the implied view among the accomplices, and if there is a comprehensive or individual communication or awareness about the contents of the crime (see, e.g., Supreme Court Decisions 92Do2628, Apr. 23, 1993; 93Do2305, Mar. 11, 1994; 95Do1269, Sept. 5, 1995; 196).

Even according to the facts acknowledged by the first instance court maintained by the court below, the defendants did not take care of the victim under the influence of alcohol with his care, but did not take care of the victim from his care of his care, and did so without his care, so that the victim with physical maturity was married without any care, and Defendant 1 started to engage in sexual intercourse with the victim under the influence of his care, between his care and his care at bus stops, Defendant 2 tried to have sexual intercourse with the victim under the direction of his care from his care after completion of his sexual intercourse. Meanwhile, according to the records, Defendant 2 did not want to have sexual intercourse with the victim under the direction of his care from his care at least 30 to 40 minutes (this investigation record, 8, 127, 128 pages). Defendant 2 attempted to have sexual intercourse with the victim from the beginning, and Defendant 1 did not have sexual intercourse with the victim from 10th day to 10th day (the first day, Defendant 2 was the victim’s sexual intercourse with the victim.)

As above, as long as the facts are mentioned above, it shall be deemed that the Defendants had the intent to jointly process rape with each other, and the combination of the doctors was made. As long as both parties were waiting in shift outside the visit while engaging in the conduct of rape continuously and the other party was waiting in the conduct of rape, it shall be deemed that the conduct of rape was in a cooperative relationship between time and place. Nevertheless, the court below found the Defendants not guilty of the violation of the Sexual Violence Punishment Act against the Defendants on the ground that it is difficult to view the Defendants as having sexual intercourse with the victim, and there is no other evidence to acknowledge the conspiracy and conspiracy of the Defendants, it shall be deemed that the court below erred by violating the rules of evidence or by misapprehending the legal principles on joint crimes, which affected the conclusion of the judgment. The grounds for appeal are with merit within the scope of pointing this out.

3. We examine Defendant 2 ex officio with respect to the violation of the Road Traffic Act.

Article 109 subparagraph 1 and Article 40 of the Road Traffic Act of the first instance court maintained by the court below against Defendant 2, which stated in the facts charged in this case against Defendant 2, that "the defendant is driving a cargo vehicle from January 21, 1995 to around the entrance parking lot located in the Dong-dong, Gwangju, without a driver's license." However, the court below found the defendant guilty of the violation of Article 109 subparagraph 1 and Article 40 of the Road Traffic Act of "the crime committed before August 10, 1995, which was pardoned by Article 1 (1) 11 of the General Amnesty Order (Presidential Decree No. 14818) of the Act of December 2, 1995, and thus, the above facts charged should be acquitted by applying Article 326 subparagraph 2 of the Criminal Procedure Act, and otherwise, the court below affirmed the crime of violation of the Road Traffic Act and the punishment of violence, etc. against the above defendant as a concurrent crime.

4. Therefore, the entire judgment of the court below against the defendants who sentenced one punishment for all the facts constituting a concurrent crime is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)