Whether rape can be established between married couple in marriage

In a case where a wife filed a divorce suit against her husband at the same time as the wife filed a complaint against her husband, and the wife and her husband agreed to stop and re-exploced with her husband and then the wife withdraws the above complaint and divorce lawsuit, the relationship between her husband and wife continues to exist under law. Thus, even if her wife refused a relationship with her husband, the crime of rape is not established.

Article 241 of the Criminal Act

Defendant

Daegu District Court of First Instance (69 High Court Decision 1910)

We reverse the original judgment.

A defendant shall be punished by imprisonment for not less than eight months.

The seventy-five days of detention days prior to the pronouncement of the original judgment shall be included in the original sentence.

However, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

In the facts charged, the charge of rape is not guilty

First of all, the court below's determination on confinement and injury among the grounds for appeal by the defendant is sufficient to acknowledge facts at the time of the original judgment's lawful adoption. In full view of each evidence at the time of the original judgment's lawful adoption, the appeal against this point is without merit. Next, according to the records of the court below and the testimony of the victim non-indicted 1 in the trial court, Non-indicted 1 filed a divorce suit at the same time, and it is evident that the defendant was withdrawn from the appeal after consultation with the non-indicted 2 in the first instance court before the sexual intercourse case occurred. Thus, it is hard to see that the victim's consent to the defendant who was legally married couple or the expression of intent to waive the right to counsel cannot be seen as having withdrawn the defendant's right to counsel. Thus, it is reasonable to reverse the judgment of the court below's determination on the grounds that the court below's rejection of the defendant's sexual intercourse with the defendant as a member of the non-indicted 1 in the first instance court's judgment and there is a serious error in the misapprehension of legal principles.

Therefore, a party member reversed the judgment of the court below and decides again, and the fact-finding and evidence judgment of the party member as to confinement and bodily injury among the facts charged are the same as the part of the judgment below. Thus, it is the reference to this in accordance with Article 369 of the Criminal Procedure Act.

In contrast to the law, the detention of the defendant in the judgment of the court below under Article 2 (2) and (1) of the Punishment of Violences, etc. Act, Article 267 (1) of the Criminal Act, Article 2 (2) and (1) of the Punishment of Violences, etc. Act, Article 257 (1) of the Criminal Act, and Article 257 (1) of the Criminal Act are concurrent crimes under the former part of Article 37 of the Criminal Act. Since the above punishment is concurrent crimes under Article 37 of the Criminal Act, Article 38 (1) 2 of the same Act and Article 50 of the same Act are concurrent crimes under Article 38 (1) 2 of the same Act, and Article 57 of the same Act, the defendant shall be punished by imprisonment for up to eight months within the term of punishment, and seven-five days within the period of detention prior to the sentence of the court below under Article 57 of the same Act shall be included in the above principal sentence. Thus, the execution of the above sentence shall be suspended for two years from the date of this judgment.

공소사실중 피고인은 1969.7.16. 03:00경 경주시 황오동 256소재 신광여인숙 2호실에서 피고인으로부터 2일간이나 감금당하여 기진맥진한 피해자 공소외 1의 옷을 모두 벗기고 배위에 올라탄 다음 엉덩이로 배를 굴르고 물걸레로 입을 틀어막고 잇빨로 그뺨을 물어뜯는등 약 1시간동안 폭행을 가하여 공소외 1로 하여금 항거불능케 한후 질내에 자기의 음경을 넣어 간음한 것이다라는 점에 대하여는 위에서 판단한 바와 같이 강간죄가 성립될 수 없으므로 형사소송법 제325조 에 의하여 무죄를 선고하는 것이다.

It is so decided as per Disposition with the above reasons.

Judges Lee Jae-ho (Presiding Judge)