[1] Whether the crime of rape is established in a case where a person forced sexual intercourse with a wife under the law by means of violence, intimidation, etc. (affirmative)

[2] In a case where the Defendant was indicted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) on the ground that he/she brought about a dispute with his/her wife A, brought about the body of his/her female on several occasions, demanded a sexual relationship with him/her, brought about a complete refusal by the Party A while threatening him/her as he/she excessively rejected and threatened him/her to commit rape, the case reversing the judgment of the court of first instance, which recognized the crime of injury by rape, on the ground that there was an error of law in the misapprehension of legal principles in the judgment of the court of first instance which recognized the crime of injury by rape

[1] Since a marriage is premised on a continuous sexual relationship, the issue of exercising and infringing the right to sexual self-determination between the legal couple cannot be deemed to be the same as the case against a third party, and even if there exists a sexual relationship contrary to the explicit and implied intent of the spouse, it is necessary to carefully determine the establishment of the crime of rape in consideration of the special nature of the crime of rape. However, Article 297 of the Criminal Act only provides the object of the crime of rape as the "child" and does not impose any other restrictions, the legal wife cannot be deemed excluded from the object of the crime of rape as a matter of course, and even if there is a right to demand a sexual relationship between the couple, it cannot be deemed that there is a right to force a sexual relationship by suppressing resistance due to assault, threat, etc., and thus, in such a case, consent of the wife cannot be acknowledged,

[2] In a case where the Defendant was prosecuted for violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) on the ground that he/she raised a dispute with his/her wife Gap, raised a face of his/her her son and son's face, breast, shoulder, etc., demanded several sexual intercourses with his/her son and asked Gap to complete his/her frightly refuse it, threatening Gap as he/she added excessive frighting and raped Gap, and thereby committing a frightening fright and frighting around 14 days of treatment, the case holding that the charge of rape injury is recognized as cases where rape was unable to inflict an injury on the victim, and the Defendant and Gap were able to reverse the judgment below that she did not request rape from the beginning on the day of the crime of rape, and that he/she did not have any other time to recognize rape from the time of the crime of rape, and that he/she did not have any other reason to recognize rape from the time of the crime of rape.

[1] Article 297 of the Criminal Act / [2] Articles 257(1) and 297 of the Criminal Act; Articles 4(1) and 8(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 2(1)3 and 3(1) of the Punishment of Violences, etc. Act; Article 364(6) of the Criminal Procedure Act

[1] Supreme Court Decision 70Do29 Decided March 10, 1970, Supreme Court Decision 2008Do8601 Decided February 12, 2009 (Gong2009Sang, 358)

Defendant

Defendant

Edives Sponsor

Law Firm Rois, Attorney Han Jae-in

Incheon District Court Decision 2011Gohap347 Decided July 14, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

(a) Mental illness;

At the time of the crime, the defendant was under the influence of alcohol at the time of the original judgment and was in the state of mental disability.

B. Legal principles

Since the victim is a legal action of the defendant, it cannot be the object of the crime of rape, and since the defendant did not intentionally inflict an injury on the victim from the beginning, but had the intent to commit rape after the bodily injury, the judgment of the court below which recognized the defendant's liability for the crime of rape and the crime of bodily injury, is erroneous in the misapprehension of legal principles.

C. Unreasonable sentencing

The punishment sentenced by the court below (five years of imprisonment) is too unreasonable.

2. Determination

A. As to the claim of mental disability

According to the evidence duly admitted and adopted by the court below, even though the defendant was somewhat drunk at the time of the crime of this case, considering the process and process of the crime, the defendant's behavior before and after the crime of this case, etc., it does not seem that the defendant had the ability to discern things or make decisions due to the state of his personal behavior. Thus, the above argument is without merit.

B. As to the misapprehension of legal principle

(1) Since a matrimonial relationship is premised on a continuous sexual relationship, the exercise of the right to sexual self-determination and the infringement thereof between the legal couple cannot be deemed to be the same as against the third party, and even if there exists a sexual relationship contrary to the explicit and implied intent of the spouse, it is necessary to carefully determine the establishment of the crime of rape in consideration of the special nature of the crime of rape. However, Article 297 of the Criminal Act provides the object of the crime of rape as the "child" but does not impose any other restrictions, the legal wife cannot be deemed excluded from the object of the crime of rape as a matter of course in all cases. Even if there is a right to demand a sexual relationship between the couple, it cannot be said that there is a right to force a sexual relationship by suppressing resistance by assault, threat, etc., and thus, it is reasonable to deem that the consent of the wife is not ratified in such a case and that the crime of rape is established. The defendant's assertion that the legal wife

(2) The liability for rape injury is recognized as a case where rape has inflicted bodily injury on the victim. In light of the circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., the defendant and the victim, who had been in conflict with each other due to ordinary economic issues, was under the influence of the defendant, who was flading the victim's face, chest, shoulder part, etc. while under the influence of alcohol, which caused bodily injury to the victim by flaging the victim's face, chest, shoulder part, etc., while under the influence of alcohol, and the victim demanded sexual intercourse with the victim after the bodily injury, but did not additionally assault the victim from that time, and there was time interval between the time when the injury was inflicted and the time when the sexual relation was demanded, it is difficult to view that the defendant intentionally inflicted bodily injury on the victim from the beginning and there is no other evidence to acknowledge it otherwise.

Therefore, the defendant should be recognized only as a concurrent crime of bodily injury and rape. However, the court below recognized the liability for the crime of bodily injury on rape. The court below erred in the misapprehension of legal principles as to the crime of bodily injury on rape. This part of the defendant's assertion is with merit.

3. Conclusion

Therefore, the defendant's appeal is reasonable, and the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and it is again decided as follows.

Around 17:00 on April 3, 201, the Defendant: (a) 2, Jin Apartment apartment 103, which is in the Nam-gu Incheon Metropolitan City School-based (hereinafter omitted); (b) fling alcohol on the Defendant’s house; and (c) disputing the victim’s body, Nonindicted Party (the victim 40 years of age) who was in his wife; (d) drawn the victim’s arms into the kitchen; (c) extracted the gas emitting range of gas; and (d) put a fire by using a one-time dog. The Defendant thought that he thought that he was able to kill a large number of things dangerous to the kitchen; (d) 1, head of the victim’s face; and (e) 4, 1, 1, 1, 4, 1, 1, 1, 1, 4, 1, 1, 1, 3, 4, 1, 1, 1, 3, and 4, 1, 1, 3, and 1, 3.

The defendant's sexual intercourse was committed by threatening the victim, causing the victim to be frighten and frighted, and making the victim to be frighten, and committing sexual intercourse once after the defendant's sexual organ was prompt.

1. Defendant's legal statement;

1. The police statement of the Nonindicted Party

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 4(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 (Special Rape and Selection of Imprisonment) of the Criminal Act, Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act, and Article 257(1) of the Criminal Act (a) of the Criminal Act (a person who inflicts bodily injury with a deadly weapon)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravation of concurrent crimes with punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with heavier Penalties]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following factors shall be considered as being favorable for the Sentencing)

In light of the fact that the crime of this case was committed with excessive injury to the victim who is the wife and rape, and that it seems that the victim would have suffered considerable physical and mental pain, etc., the defendant should be punished strictly.

However, the punishment as ordered shall be determined by comprehensively taking into account the following factors: (a) the Defendant led to a confession of a crime and a mistake; (b) appears to have led to a contingent crime in the state of under the influence of alcohol; (c) the degree of injury is not heavy; and (d) the victim actively desires to be punished by a fine or a heavier punishment; (d) the Defendant has no record of criminal punishment; and (e) the Defendant’s age, character and behavior, environment, occupation, circumstances after the crime, and circumstances after the crime.

The summary of this part of the facts charged is as follows: "the defendant demanded a sexual relationship after putting the body of the victim on the road as stated in the above facts of the crime, and the victim's complete refusal, as the victim saw excessive refusal, and made the victim frightener off, and made the victim frighter off, and prompt the defendant's sexual organ, sexual intercourse, rape, and sexual intercourse with the victim for about 14 days, and thereby sexual intercourse with the victim, and thereby led the victim to multiple scams and scams requiring medical treatment for about 14 days," and this constitutes a case where there is no proof of a crime for the same reason as stated in Article 2-b (2) of the above facts of the Criminal Procedure Act, and thus, the defendant shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the defendant shall not be acquitted from the disposition of the charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a special rape) and the Punishment of Violences, etc.

Judges Choi Jin (Presiding Judge) Kim mutual name and Kim Tae-hun