강간등
All appeals are dismissed.
1. Determination of the Defendant’s grounds of appeal as to whether there was assault or threat of a perpetrator to establish the crime of rape ought to be made based on the specific situation in which the victim was faced at the time of sexual intercourse, taking into account not only the content and degree of the assault or threat, the background leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse, etc.
Inasmuch as the perpetrator’s assault and threat did not reach the extent of making it considerably difficult to resist the victim’s resistance solely on the ground that the perpetrator did not resist or resist the victim’s personal power, it should not be readily concluded (see, e.g., Supreme Court Decision 2005Do3071, Jul. 28, 2005). Examining the examination of the victim’s witness and the evidence duly adopted and investigated by the lower court and the first instance court, the lower court’s conviction of rape among the facts charged in the instant case is justifiable as it is in accordance with the aforementioned legal doctrine.
In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations.
There is no error of law by misunderstanding the legal principles concerning the crime of rape and violating the principle of court-oriented trial and direct trial.
2. In light of the difference between the method of evaluating credibility of the first instance court and the appellate court according to the spirit of the substantial direct examination adopted by the Korean Criminal Procedure Act, the appellate court should not reverse without permission the judgment of the first instance court on the existence of credibility of the statement made by the witness of the first instance court only on the ground that the judgment of the appellate court is different from the judgment of the appellate court. However, in light of the contents of the first instance court and the evidence duly examined in the first instance court, the first instance court's decision on the credibility of the statement made by the witness of the first instance court should not be reversed.