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

[2] The case reversing the judgment below that it does not constitute a special rape under Article 6 (1) of the Act on the Punishment of Sexual Crimes and Protection of Victims against rape

1. Summary of the facts charged in this case

At around 22:00 on October 4, 1996, the defendants conspired to rape the victim with the co-defendant in the first instance trial, and at the house of the defendant 1 located in the Geum-gun, Seongbuk-gun, Kim Sung-gun, defendant 1 4 times in the victim's face with his hand, and the victim does not have rape, and the defendant 2 walk out the victim's appearance, etc. one time in order to avoid rape. The defendant 1 will walk out the victim's appearance, etc. due to the situation where the victim's face is 3 times in the face of the victim, and the victim's hair cannot have sexual intercourse again, and the defendant 2 is forced to leave the victim's body, and the defendant 1 is forced to leave the victim's body, and the defendant 1 is forced to leave the victim's body, and the defendant 2 and the defendant 1 is forced to leave the victim's body, and the defendant 3 is forced to leave the victim's body, and the defendant 1 is forced to leave the victim's body.

2. The judgment of the court below

In light of the facts that Co-Defendant 1 and the above Co-Defendant 2 were raped with the above Co-Defendant 1 in the court of first instance, the court below found the Defendants guilty of violating the Punishment of Sexual Crimes and Protection of Victims (Special Rape, etc.) on the ground that the facts charged against the Defendants were no evidence to acknowledge that the victim was injured by rape as stated in the above Co-Defendant 1 and Co-Defendant 2's act of assault and rape, and that the victim's act of assault and rape was committed again against the above Defendant 1 and the victim's non-indicted 2's non-indicted 1 and the victim's non-indicted 2's non-indicted 1 and the victim's non-indicted 2's non-indicted 1 and the victim's non-indicted 2's non-indicted 1 and the victim's non-indicted 2's non-indicted 1 and the victim's non-indicted 2's non-indicted 3's non-indicted 1 and the victim's non-indicted 2's non-indicted 1 and the victim.

3. Judgment of party members

In order to establish a special rape by committing the crimes under Article 297 of the Criminal Act by combining two or more persons under Article 6 (1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc., there should be a sharing of a conspiracy as a subjective requirement and an objective requirement. The conspiracy does not require any legal penalty, and thus, the conspiracy does not necessarily lead directly or indirectly to the crypted intent of co-processing among accomplices, and it does not necessarily have to go through the crypted intent, and it does not necessarily have to go through the pre-crypted process, and its execution is subject to the degree that it is in a cooperative relationship between time and place (see, e.g., Supreme Court Decisions 95Do2655, Jul. 12, 1996; 96Do313, Mar. 22, 196; 92Do917, Jul. 28, 1992).

Even according to the facts acknowledged by the court below, Defendant 1 tried to rape the victim and the victim forced the victim to take a sexual intercourse with Defendant 1, and the victim forced the victim to take a sexual intercourse with Defendant 1 once every time, and the victim took the victim's her house as he saw her to take a sexual intercourse. Defendant 2 and the above co-defendant of the court of first instance assaulted the victim who she returned to Defendant 1's room, and Defendant 2 and the above co-defendant of the court of first instance committed violence against the victim again in the course of the victim's sexual intercourse with the victim, and the above co-defendant of the court of first instance stated in the records, around 10:00 on October 4, 1996, the co-defendant of the court of first instance introduced the victim's head by requesting the victim to take a sexual intercourse with Defendant 1 and introduced him to the victim's head, and forced the victim to take a sexual intercourse with Defendant 1 through Defendant 8, but forced the victim to take a sexual intercourse with Defendant 2 and the victim.

If the facts are as above, the defendant and the co-defendant of the court of first instance shared the intent of co-processing the rape, and the co-defendant of the court of first instance shared the act of rape with the defendant 2 and the above co-defendant of the court of first instance. Meanwhile, the defendant 2 forced the defendant 1 not to be raped with the defendant 1 to make a sexual intercourse with the above defendant by putting the victim, and forced the victim to make a sexual intercourse with the above defendant 1, and led the victim to the protection of the defendant 1. The above co-defendant of the court of first instance assaulted the victim by forcing the victim to have sexual intercourse with the defendant 1, and as long as the defendant 1 and the above co-defendant of the court of first instance were immediately next to the victim's sexual intercourse, the defendant 2 and the above co-defendant of the court of first instance shared the act of rape, and the share of the act of execution shall be deemed to be in a cooperative relationship with the defendant 1 in time or spatially.

Nevertheless, the court below erred by misapprehending the legal principles on joint crimes, which held that the act of Defendant 2 and Co-defendant 1 in the court of first instance constituted aiding and abetting the rape of Defendant 1 in time and space, cannot be seen as contributing to the act of rape in a cooperative relationship with Defendant 1, and that the act of rape does not constitute a special rape under Article 6 (1) of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)