Whether a crime of bodily injury resulting from rape can be charged with the crime of bodily injury resulting from indecent act by indecent act without any amendment procedure

Although the original charge is the injury of rape and the conjunctive charge is the injury, there is an error of hearing the facts that are not the object of the judgment.

Article 298 of the Criminal Procedure Act

Defendant

Defendant

Seoul District Court (67Da18283)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

One hundred and fifty days of detention days prior to the pronouncement of judgment in the first instance shall be included in the above sentence.

The gist of the grounds for appeal by the defendant and his defense counsel is that the assault by the defendant in this case does not fall short of the purpose of indecent act by compulsion, so the defendant cannot be held liable for the crime of indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act is established

However, the court below erred by misapprehending the legal principles that the court below applied the crime of bodily injury caused by indecent act against the defendant, thereby adversely affecting the conclusion of the judgment, and further, the judgment of the court below cannot be reversed because the sentencing of the court below is too unreasonable.

Therefore, prior to the judgment on the legitimacy of the above grounds for appeal, this case was prosecuted as the facts charged by the defendant causing rape of Non-Indicted 1 as the original facts charged and the facts of injury to the defendant (Article 2 (2) of the Punishment of Violences, etc. Act). However, although the prosecutor did not request the change of the facts charged as a fact causing bodily injury by indecent act by indecent act, the measures taken by the court below against the above facts charged by indecent act by indecent act by indecent act constitutes an unlawful act which affected the conclusion of the judgment because the court below judged the facts not subject to the judgment. In this regard, the judgment of the court below cannot be maintained by the defendant and his defense counsel without making a decision on the grounds for appeal.

Therefore, the judgment of the court below is to be reversed ex officio in accordance with Article 364(2) of the Criminal Procedure Act, and the prosecutor has withdrawn the facts of rape, which are the original facts charged, and the applicable provisions of the law, so it is again decided as follows after pleading.

(1) The criminal facts; the defendant was sentenced to 7 years of imprisonment with prison labor at Seoul High Court on September 3, 1960 at the Seoul High Court on November 2, 1964; and the execution thereof was completed on July 24, 1967; and around September 24, 1967, the defendant takes a bath in the Cheongcul, which was completed in the Cheongcul-ro, the middle of the Cheongcul-ro in the Cheongcul-si, Gyeonggi-do, and the Cheongcul-ro, which was completed in the Cheongcul-ro, the Cheongcul-ro, the main point of the Cheongcul-si, the Cheongcul-si, the middle of the Cheongcul-gu, the Cheongcul-si, and the victim non-indicted 1 (offender 29 years of age) was bread, and the defendant did not comply with this, and the defendant did so and did so, the defendant suffered from the 1st century and the Hacul for two days.

She evidence; 1. Statement to the same effect as the ruling in the trial court before and after the trial of the defendant at the first instance and after the remand;

1. Each statement that conforms to the facts set forth in the judgment of the first instance court of Nonindicted 2 and 3 of the witness.

1. Each statement made by a prosecutor and judicial police officer, which conforms to the facts of the judgment, among the suspect interrogation records of each accused in the preparation of administrative affairs;

1. Each statement made by a prosecutor and a senior judicial police officer with respect to Nonindicted Party 1, which conforms to the facts in the judgment, shall be recorded in the protocol of statement.

1. The diagnosis of Nonindicted Party 1 in Nonindicted Party 4’s written diagnosis of Nonindicted Party 1, which conforms to the part and degree of the injury as indicated in the judgment.

Article 2(2) of the Punishment of Violence, etc. Act; Article 262, Article 260(1) and Article 257(1) of the Criminal Act; and Article 257(1) of the same Act, the judgment of the defendant applies mutatis mutandis to the applicable provisions of Article 2(2) of the same Act; Article 262 of the Criminal Act; Article 260(1) of the same Act; and Article 257(1) of the same Act; and the defendant is punished by imprisonment for a term of imprisonment within the scope of the term of punishment for a repeated offender under Article 35 of the same Act.

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

Judges Jeong Tae-won (Presiding Judge)