[살인,강간치사][집38(2)형,529;공1990.7.1.(875),1302]
The number of crimes in which rapes have committed violence and rape with dolusent awareness of murder and has caused the death of the victim (=the relationship between the crime of murder and the crime of death resulting from rape and the commercial concurrence)
In a case where the result of the death of a rape causes the death of the victim, and even if the result of the death was caused by the assault used as a means of rape as well as the sexual intercourse, the crime of murder and the crime of rape is established. However, if the criminal had the intent of murdering at the time of assaulting the victim for the purpose of rape, the crime of murder and the crime of rape are established. Thus, the judgment below that punished for the most severe crime of murder by deeming the rape as the ordinary concurrence with the crime of murder and the crime of murder, is justified.
Articles 40, 250(1), 301, and 297 of the Criminal Act
Defendant
Defendant
Attorney Lee In-hee
Seoul High Court Decision 89No3488 delivered on February 15, 1990
The appeal is dismissed.
The grounds of appeal by the defendant and his defense counsel are also examined.
1. First point:
According to the records, the defendant has led to the confession of the facts of the crime of this case to the court of the first instance, and reversed the confession and denied the crime of this case by the court of the second instance. While examining the situation of the confession originally made in the court of the second instance, the contents of each confession statement, and other all other circumstances shown in the records, there is no reason to suspect that the confession was not made arbitrarily by coercion, such as the theory of lawsuit, and there is no evidence to deny its voluntariness, and the credibility of the confession is also sufficiently recognized.In light of the contents of the statement in the document in the document in the document in the document in the document in the document in which judicial police affairs are prepared against the person, even if examining the contents of the testimony of the witness of the second instance court of the second instance are examined, the defendant does not have any obvious evidence to prove the absence at the time of the crime, and there is no other error like the theory in the indictment in the court below's evidence preparation, it cannot be admitted to the argument that the
2. Second point:
If the result of the death of a rape has resulted in the death of the victim, not only the act of rape itself, but also the act of assault used as a means of rape, the crime of rape is established. However, if the perpetrator has the intent of murdering at the time of assaulting the victim for the purpose of rape, the crime of murder and the crime of death of rape are established.
According to the court below's final and conclusive facts, since the defendant prevented the victim from being injured with dolusorous intention of murder, divided the part of the victim, and raped by the appearance of the victim, and then caused the victim to die as a quality due to pressure by light pressure, the court below's judgment that deemed the crime of murder and the crime of rape as an ordinary concurrent crime is just and there is no argument about this issue.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)