Whether the crime of intrusion upon residence is established in addition to the crime of violation of Article 9(1) of the Act on Sexual Crimes and Protection, etc. of Victims, in case where a person intrudes on his/her residence, while in possession of a deadly weapon, commits rape and

Article 5(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof provides for cases where a person who commits a crime under Article 319(1) of the Criminal Act commits rape, and Article 9(1) of the same Act provides for the same element of the crime as a result of an aggravated punishment as to a crime under Article 5(1) of the same Act and a crime under Article 6 of the same Act. As such, the act of a defendant who threatens a victim with a knife by threatening his knife and forced the victim to inflict an injury by rape, is merely constituting a crime under Article 9(1) of the same Act, in whole, and the act of a victim by assaulting his knife with a knife and causing the victim to inflict an injury by rape shall not

Articles 5(1), 6, and 9(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims Thereof

Defendant

Defendant

Attorney Kang Jong-il

Seoul High Court Decision 98No2900 delivered on January 7, 1999

The judgment below is reversed and the case is remanded to Seoul High Court.

The defendant and his defense counsel's grounds of appeal are also examined.

1. Examining the relevant evidence in light of the records, the court below is just in finding the defendant guilty of the facts charged in this case that the defendant threatened the victim who was diving due to the victim's intrusion (the victim's 25 years old age) with a knife by threatening the victim's knife to knife and threatened him with his resistance, and thereby caused the victim's bodily injury, such as light pressure, etc., and there is no error of misconception of facts or incomplete hearing due to the violation of the rules of evidence as otherwise alleged

2. According to the reasoning of the lower judgment, the lower court, applying Articles 9(1) and 6(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof, Article 297 of the Criminal Act, and Article 319(1) of the Criminal Act to the Defendant’s crime of this case, punished the Defendant as concurrent crimes of violating the Act on the Punishment of Sexual Crimes and of intrusion upon residence.

The court below held that Article 6 (1) of the Punishment of Sexual Crimes Act only provides that the act of the defendant's act of carrying a deadly weapon or other dangerous object or combined with two or more persons, but does not provide for the case of intrusion upon residence. Thus, it is thought that the act of the defendant's act of rape and causing bodily injury constitutes a crime of intrusion upon residence under Articles 9 (1) and 6 (1) of the Punishment of Sexual Crimes Act, separate from the act of the crime committed by the defendant by carrying a deadly weapon from the act of the defendant.

However, Article 5(1) of the Punishment of Sexual Crimes Act provides for cases where a person who commits a crime under Article 319(1) of the Criminal Act commits rape, and Article 9(1) of the Punishment of Sexual Crimes Act provides for the same element as a result of aggravated punishment for a crime under Article 5(1) of the same Act and Article 6 of the same Act. As such, the Defendant’s act constitutes a crime under Article 9(1) of the same Act comprehensively, and among them, it cannot be deemed that the act of intrusion upon a residence constitutes a separate crime from the remaining act.

Nevertheless, the court below punished the defendant as concurrent crimes under the premise that the crime of intrusion upon residence is established separately as seen above. The court below erred by misapprehending the legal principles on Article 9 (1) of the Sexual Crimes Punishment Act and thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-hee (Presiding Justice)