[특수강도,강간치상,강간미수,폭력행위등처벌에관한법률위반][공1990.7.15.(877),1412]
Whether it can be deemed that there was a commencement of the execution of the crime of rape solely on the basis of the fact that the victim committed sexual intercourse with his or her chest and her her her fel, who invaded upon the victim's house for the purpose of rape (negative)
In order to have commenced the commission of rape, it is difficult to conclude that the victim started assault or intimidation as a means of rape, on the sole basis of the fact that the defendant invadeds on the victim's house for the purpose of rape, even if he intrudes on the victim's house for the purpose of rape, he/she committed sexual intercourse with the chest of the victim.
Articles 297 and 25 of the Criminal Act
Defendant
Defendant
Attorney Ho-sik-type
Busan High Court Decision 89No1106 delivered on February 22, 1990
The judgment of the court below is reversed.
The case is remanded to Busan High Court.
1. As to ground of appeal No. 1
In this case, the defendant did not show that he had no or weak mental capacity due to mental disorder at the trial court at the time of the crime, and such assertion cannot be a legitimate ground for appeal.
2. As to the third ground of appeal No. 4
In this case, the mere assertion of misunderstanding of facts or the argument that the sentencing of the court below is unfair cannot be a legitimate ground for appeal.
3. As to ground of appeal No. 2
The judgment of the court of first instance maintained by the court below held that "the defendant was guilty of attempted rape under Articles 300 and 297 of the Criminal Act because he did not achieve the purpose of the above victim's chest and her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her she
However, in order to establish the commencement of the crime of rape, there should be a fact of assault or intimidation as a means of rape, and according to the facts of the judgment below, it is difficult to conclude that the Defendant committed assault or intimidation against the victim as a means of rape solely on the basis of the fact that the victim's chest and her mother, who met himself with the victim's house for the purpose of rape, had sexual intercourse with the victim, was committed. The judgment of the court of first instance cannot be deemed to have commenced as a means of rape by misunderstanding the legal principles on the crime of attempted rape, and it is not necessary to accept the Defendant's appeal pointing this out, and it is also unlawful that the court below dismissed all the Defendant's appeal.
The appeal pointed out this point is justified.
Therefore, the judgment of the court below is reversed, and the case is remanded to the Busan High Court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)