[강간치상피고사건][고집1974형,95]
Application of the law where rape has been committed over several occasions but it is not found that the result of the injury has occurred due to any act;
Although it is not clear whether the defendant committed rape over three occasions and it was caused by any of the three rapes, if there is a marbrosis, all of the above three rapes shall be punished by the injury resulting from rape unless there is a special reason to the contrary, and these crimes are related to concurrent crimes under the former part of Article 37 of the Criminal Act.
Articles 37, 301, and 297 of the Criminal Act
Defendant
Seoul Criminal Court of the first instance (73 High Court Decision 633)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for a maximum of two years and six months.
One hundred and twenty days of detention days prior to the declaration of the original judgment shall be included in the above sentence.
The summary of the grounds for appeal by the Defendant and the Defendant’s defense counsel is as follows: (a) the Defendant worked in the same workplace prior to the victim, and was sexually disturbed, and did not use violence or intimidation with each other; (b) the lower court found the Defendant guilty; (c) the lower court erred in misunderstanding of facts that may affect the judgment; and (d) the amount of the sentence imposed by the lower court is too unreasonable.
First of all, the first ground for appeal is examined in light of the records of this case by examining various evidences that the court below duly adopted after the examination of evidence, and the facts charged to the defendant can be fully recognized, and since the fact-finding process cannot find out any erroneous facts as pointed out, the grounds for appeal on this point shall not be accepted.
Next, according to the facts of the crime acknowledged by the court below based on legitimate evidence, the court below decided that the defendant committed rape three times in this case. Even if the records of this case were prepared, it is not proved that the crime of rape was caused by any one of the three rapes, and therefore, it is recognized that the above injury was caused by any of the above three rapes. Thus, unless there are special circumstances, all of the above three groups should be punished as the crime of rape, and this is a concurrent crime under Article 38 (1) 2 and Article 50 of the Criminal Act. Thus, the court below should have conducted concurrent crimes under Article 38 (1) 2 and Article 50 of the Criminal Act. Thus, the judgment of the court below did not reach this point, which affected the conclusion of the judgment, is not reversed.
Therefore, the judgment of the court below shall be reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the members shall be decided again after pleading.
The substance of the facts charged by a member against the defendant and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
Each so-called the judgment of the defendant, who is not guilty, falls under Articles 301, 297, and 30 of the Criminal Act, and the prescribed sentence of imprisonment is selected, and the above number of the defendants is concurrent crimes under the former part of Article 37 of the Criminal Act. Since Articles 38 (1) 2 and 50 of the Criminal Act are the most serious crimes, the punishment for rape is concurrent crimes under Article 38 (1) 2 and Article 50 of the Criminal Act, and the defendant is a juvenile, and there is a reason to take into account the circumstances of the crime, such as the first offender, etc., the punishment shall be imposed within the scope of the punishment mitigated by applying Articles 53 and 55 (1) 3 of the Criminal Act. Since the defendant is a juvenile under Article 2 of the Juvenile Act, the defendant is punished by imprisonment with prison labor for a short term of two years and six years under Article 54 of the Criminal Act, and the above punishment shall be included in the imprisonment prior to the sentence under Article 57 of the Criminal Act.
It is so decided as per Disposition for the above reasons.
Judges Jeon Soo-soo (Presiding Judge)