Whether Article 263 of the Criminal Code, which recognizes special cases concerning the punishment of the crime of bodily injury, applies to the injury resulting from rape.

In the event that the Defendant had been talked with the Nonindicted Party A and the victim Eul who was raped with him, and the Defendant suffered from the second rape of the Party B by rape of the Party B who was unable to resist due to rape from the Defendant, even though there was no evidence to acknowledge that the Defendant and Party A conspiredd to rape, and there was no evidence to find that there was a rape by the said wife, the facts charged of the bodily injury constitute a time when there was no evidence to prove that there was a rape by the said wife, and Article 263 of the Criminal Act, which recognized special exception to the punishment of the crime of bodily injury resulting from rape, does not apply to the crime of bodily injury resulting from rape. Thus, the Defendant cannot be punished outside the crime of rape

Articles 263, 301, 297 and 30 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 and 10 others (Law No. 8430, Dec. 3, 2011)

Defendant

Defendant

Seoul District Court Decision 90 High Court Decision 430

The part of the judgment of the court below against the defendant is reversed.

The prosecution of this case against the defendant is dismissed.

The first summary of the grounds for appeal by the defendant and his defense counsel is that the defendant has sexual intercourse with the victim non-indicted 1 at the time, but there is no use of violence by the victim, and there is no possibility that the defendant committed the crime at the time of the original trial since there is no conspiracy between the co-defendants of the original trial and the victim. Even if the defendant is found to have rape, the external interview of the victim at the time of the crime of rape is not caused by rape of the defendant, and it is not caused by the defendant's act, and even if the defendant is one of the above two persons, even if the person who committed the crime of rape by concession of a white book, it is unclear who is the case, and Article 263 of the Criminal Act, which provides for special cases concerning the punishment of the crime of rape, cannot be applied to the crime of injury resulting from rape, and apart from the fact that the defendant is punished as the crime of rape, the judgment of the court below erred by misapprehending the legal principles on the crime of rape, thereby affecting the conclusion of the judgment.

No. 2, even if the charge against the defendant is found guilty, the sentence imposed by the court below against the defendant is too unreasonable.

In full view of the evidence duly admitted by the court below as to the assertion of misunderstanding of facts and misapprehension of legal principles, the defendant and the co-defendants of the court below were unable to perform so that they can do so at a scambling shop in Seoul (Scamb omitted). On July 12, 1990, the day of this case, even though the co-defendants of the court below met Non-indicted 1 at the village bus stop, and 3 talks with the above fact that it was difficult for the co-defendants of the court below to accept the above scambling and repair by telephone, and it was difficult for the defendant to find out that the above co-defendants of the court below exceeded 10 million won and 30 billion won, and it was hard for the defendant to find out that the victim was rape again due to rape by the above co-defendants of the court below.

However, the court below held that the prosecutor applied Articles 301, 297, and 30 of the Criminal Act to each act of the above two persons pursuant to Article 263 of the Criminal Act on the ground that there is insufficient evidence to acknowledge that the two persons conspired to commit the crime of rape, and that the above two persons cannot be confirmed to have committed the crime of rape, but the charges of causing rape against the defendant fall under the case where there is no proof, and Article 263 of the Criminal Act which recognized the special case concerning the punishment of the crime of causing rape should not apply to the crime of causing rape, and therefore, Article 263 of the Criminal Act which recognized the special case concerning the punishment of the crime of causing rape should not be punished for the crime of causing rape. Thus, the court below erred by misapprehending the legal principles as to the defendant's liability for the crime of causing rape or by misapprehending the legal principles as to the crime of causing rape.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the appeal by the defendant is justified.

The summary of the facts charged of this case is as follows: (a) the defendant jointly with the co-defendants of the court below on July 12, 1990, and had the victim non-indicted 1, who did not have the co-defendants of the court below take the crepit of the management of the co-defendants of the court below; (b) forced the victim non-indicted 1 to take the crepit of the non-defendants of the court below; (c) led the victim under the influence of alcohol to the above measures; and (d) forced the victim to take the crepit of the crepit of the crepit of the defendant, and forced the victim to do so, and (d) forced the victim to do so, she exceeded the clothes of the court below, and she continued to sexual intercourse with the victim who was unable to resist by rape as above; and (e) the defendant cannot file a complaint against the non-indicted 1, a person with parental authority prior to the court below's revocation of the indictment of this case, and thus, the defendant's injury or injury to rape of this case shall be dismissed.

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

Judges fixed-name (Presiding Judge) Lee Hong-sung