[특정범죄가중처벌등에관한법률위반(특수강간치상)][하집1991(2),331]
In case where an injury was inflicted in the course of sexual intercourse with the victim's consent, the part of the crime of injury resulting from rape shall be committed.
As in the case of rape, the crime of bodily injury resulting from rape is established when the victim consented to the act of sexual intercourse by assault or threat, and the crime cannot be established because it does not correspond to the elements of the crime, and even if the victim does not consent to the act of sexual intercourse, even if the victim does not consent to the act of sexual intercourse, the intent of the deliberation of the court below lies in accepting the act of sexual intercourse, and thus, the crime of bodily injury resulting from rape cannot be punished as the same crime.
Articles 301, 297, 16, and 24 of the Criminal Act
Defendant
The defendant shall be innocent.
The summary of the facts charged in this case is as follows: at around 01:30 on March 12, 1991, the defendant demanded the victim who was a drinking house loan (31 years of age) and the victim who was in his possession of the victim's refusal of sexual intercourse once again after having sexual intercourse at the Busan Seo-gu Office 205, Busan (31 years of age) and again requested the victim's sexual intercourse, but the victim's sexual intercourse was in his possession, and the victim's two descendants were frighted with a vinyl tape which was in his possession after frighting the resistance, and tried to rape with the victim as seen in the video tape. However, according to the fact that the victim's excessive catch by the defendant was frighted, the victim attempted to take part of the victim's statement and his statement in the same investigation agency as the victim's oral statement and its statement in the same manner as the victim's opinion and the statement made by each investigation agency and the statement made by each investigation agency.
However, as in the case of rape, the crime of bodily harm caused by rape is established when the victim consented to the sexual intercourse by assault or threat, and the crime cannot be established because it does not correspond to the elements of the crime. Furthermore, even if the victim does not consent to the outer side of the victim, the intention of the deliberation shall be avoided if the perpetrator knows that he consented to the intention of the crime of bodily harm caused by rape. However, the recognition of the intention for the above reason should be carefully determined by taking into account all circumstances, such as the relation between the perpetrator and the victim until the offender and the victim, the attitude of the victim, the mental and physical condition of the perpetrator, etc.
Examining the aforementioned overall circumstances in this case, the defendant was unmarried as a park, and the defendant was at the monthly salary of the same day prior to the instant case, and was drinking with the victim who was in contact with the above female house at night, and made a single sexual intercourse with the victim once more than 50,00 won, while making a considerable drinking with the victim, and the defendant did not want to have sexual intercourse with the victim more than once. The defendant was refused to request the victim to have sexual intercourse with the victim, but the defendant did not want to have sexual intercourse as seen in the video tape before the instant case. Although the defendant thought that he was able to have sexual intercourse with the victim as seen above before the instant case, it was more likely that the victim did not have sexual intercourse with the defendant, the victim did not want to have sexual intercourse with the victim as well as to have sexual intercourse with the victim's sexual intercourse with the victim's sexual intercourse with the victim's sexual intercourse with the victim's sexual intercourse with the victim's sexual intercourse with the victim's own will at the time of the instant case.
Thus, since the intent of the crime of bodily injury resulting from rape of a defendant is deemed to have been dismissed, it cannot be punished as the crime of bodily injury resulting from rape, apart from punishing the above act of the defendant as a violation of the Punishment of Violences, etc. Act. Thus, the prosecution of this case cannot be punished as the crime of bodily injury resulting from rape. Thus, the prosecution of this case is not proven as to the intentional act
It is so decided as per Disposition for the above reasons.
Judges Kim Jong-chul (Presiding Judge) (Presiding Justice)