2011No3662 Injury by rape (the name of the crime altered: Quasi-rape injury)

A

Defendant

Iscin (prosecution) and Iscinary (public trial)

Law Firm B, Attorney C, D

Seoul Central District Court Decision 2011Gohap1051 Decided December 9, 2011

May 3, 2012

The judgment of the court below is reversed. The prosecution of this case is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The defendant does not have any quasi-rape of a victim as stated in the judgment below.

Even if the defendant made quasi-rapes, the victim's injury does not constitute the injury of the victim in the crime of quasi-rape, and the crime of quasi-rape is an offense subject to victim's complaint, and the victim filed a complaint after the lapse of the period of complaint.

Nevertheless, the court below determined that the defendant suffered injury by sexual intercourse with the victim who was unable to resist. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The sentence sentenced by the court below (three years and six months of imprisonment) is too unreasonable.

2. Judgment of misconception of facts and misapprehension of legal principles

First, in order to determine the legitimacy of the indictment of this case, it is examined whether the victim's "influence of the days of treatment" falls under the injury of quasi-rape.

A. Summary of the facts charged

Around March 2006, when the Defendant sought a car page "G" in Seoul F, the Defendant first met or became aware of the victim H (hereinafter 28 years of age) who worked there, and then tried to have sexual intercourse with the victim. At around April 27, 2006, the Defendant called the victim's phone at the J office in Gangnam-gu Seoul, a Co., Ltd., where the Defendant was working in the third floor, and called the victim to play in the office near the above office, and the trade name near the above office cannot be known, the Defendant she sawd the victim one disease near the two-lane, moved the victim's trade name, the victim's unknown place to have sexual intercourse with the victim, and caused the victim to take out sexual intercourse with the victim more than the above office, and she sawd the victim's her sexual intercourse with the victim, and she sawd the victim's her sexual intercourse with the victim at around 30,400,000.

B. The judgment of the court below

On April 28, 2006, immediately after the occurrence of the instant crime, the victim received medical treatment at M Hospital on April 28, 2006, immediately around 09:01. The court below determined that the victim suffered bodily injury, such as the injury caused by the instant crime, which could occur in daily life or the injury caused by sexual intercourse that could occur in the daily life due to the instant crime, by being diagnosed with the appearance of 3-day-day-day-day-day-day-day-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-out-

C. Judgment of the court below

1) In the crime of injury resulting from quasi-rape, if there is no need to treat the injured party as the injured party’s wife is extremely minor and the injured party’s wife does not receive treatment, and if the injured party’s daily life does not impede the injured party’s daily life and the injured party’s natural recovery can be naturally cured following the passage of the day, it cannot be said that the injured party’s physical condition was changed due to such reason or it is difficult to deem that the injured party’s physical condition was changed, or

2) According to evidence duly adopted and examined by the court below and the court below, the victim suffered medical treatment from P while visiting M Hospital in Gangnam-gu, Seoul at around 09:01 on April 28, 2006. The victim was suffering from a sexual intercourse without wanting to visit the above hospital. The victim's external pressure or shock was most likely to occur at the time, and the part of the city was string of the heat. (B) The victim's above wife was able to receive natural treatment if there was no secondary chromatic proof, and it was not likely that there was no serious obstacle to daily life. ③ At the time, the victim was unable to receive treatment at the time of the above 34 days after being treated for a 3-day period of time without any specific opinion, and the victim was unable to receive treatment at the time of the above 20-day period of time after being able to receive treatment from the outside of the hospital.

3) Nevertheless, the lower court determined that the above wife suffered by the victim constituted injury to quasi-rape. In so doing, it erred by misapprehending the facts or misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. Therefore, this part of the Defendant’s assertion is with merit.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the remaining grounds for appeal, and it is again decided as follows.

The gist of the facts charged in the instant case and the fact that there is no proof of the crime of causing bodily injury among them are as stated in the foregoing Paragraph (2). As such, the Defendant cannot be punished for the crime of causing bodily injury to quasi-rape, and the establishment of the crime of causing bodily injury to quasi-rape should be deliberated and determined only on whether the crime

However, the crime of quasi-rape is a crime falling under Articles 299 and 297 of the Criminal Act, which is subject to prosecution only when a complaint is filed under Article 306 of the Criminal Act. Article 19(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010) provides that a complaint shall not be filed after one year has elapsed from the date on which the defendant became aware of the crime. According to the records, the victim's complaint filed on May 22, 2009, which clearly became one year from April 28, 2006 when he/she became aware of the fact that he/she is a criminal. Thus, the above complaint is illegal after the expiration of the period for filing the complaint, and the prosecution of this case also constitutes a prosecution instituted on the grounds of unlawful complaint, and thus, the procedure for filing the prosecution becomes invalid in violation of the provisions of the Act. Therefore, the prosecution shall be dismissed as per Disposition.

The presiding judge and the lowest judge;

Judges Senior Superintendent

Judges Kim Gi-tae

1) Even if based on the facts charged, the above wife of the victim does not constitute assault or intimidation by the defendant.

D. Intercourse with sexual intercourse by inserting the sexual organ of the defendant into the victim's negative organ by taking advantage of the victim's resistance impossibility condition.

The process occurred in the process.

2) The degree of injury recognized above, and the pain or inconvenience of the appearance of the person outside a hospital at the time of the visit of the hospital or the Ma Hospital on May 2006

In light of the fact that there is no record of appeal, the "the part of the injury after the crime of this case is inflicted on it every time the injury is inflicted, and the pain is paind.

The facts charged as to the injured portion solely on the victim's legal statement that "a person who has been contracted up to 1 month during the glaz shall be charged."

It is difficult to recognize it.