Number of crimes in a leaptable case

The so-called prostitution, which rapes a person's victim jointly, is an all-inclusive crime committed by a single criminal intent in the same opportunity at the same place.

Article 37 of the Criminal Act

Defendant 1 and two others

Busan District Court (70Da14328)

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for three years, by imprisonment for two years and six months and by imprisonment for a maximum term of three years.

With respect to Defendants, 70 days of detention days prior to the declaration of the original judgment shall be included in the original sentence.

We examine the gist of the grounds for appeal by the Defendants and their defense counsel.

The first point of appeal by Defendant 1 is that Defendant 1 had sexual intercourse with Defendant 1 and 2 on the day of the instant case, and committed a crime by misunderstanding or threatening the victim, although the Defendant had a lot of alcohol with the above Defendant at the time, he did not commit the crime. The first point of appeal by Defendant 2 is that Defendant 1 had sexual intercourse with Defendant 1 on the day of the instant case, and Defendant 1 had sexual intercourse with the victim at the place of the crime, and Defendant 3 did not assault or threaten the victim. The first point of appeal by Defendant 3 was that Defendant 1 and 2 reported that Defendant 1 and 2 had sexual intercourse with the victim, and did not have sexual intercourse with Defendant 1 and 2 on the day of the instant case, and caused a brupted impression with him, and did not cause any error of law that affected the conclusion of the judgment by misunderstanding the facts that the lower court convicted the Defendant, and all of the Defendants wish to pay consolation money to the victim by making it difficult to punish the victim.

On the other hand, we first examine the defendants' assertion of mistake of facts. The evidence duly adopted and cited by the judgment of the court below, and when we examine some of the defendants' statements in this court, it is sufficient to recognize the facts in the judgment at the original time, and there is no material to recognize that defendants 1 and 2 had no mind under the influence of alcohol at the time of the crime in this case, so the above argument by the defendants is all groundless.

However, ex officio examination was conducted on the basis that there were rapes among several persons, and the act of prostitution is an all-inclusive crime committed by a single criminal intent in the same opportunity at the same place (the prosecutor is charged with the Defendants' act of this case). Nevertheless, in determining the number of the crimes in this case by the Defendants, the lower court is deemed to have established one crime of causing rape by each of the Defendants' bodily injury resulting from rape in accordance with Article 37 (1) 2 and Article 50 (3) of the Criminal Act by applying the former part of Article 37 of the Criminal Act, and the judgment of the lower court is not reversed on the ground that there was an error of law that affected the conclusion of the judgment by erroneous application of the Act and affected the conclusion of the judgment. Accordingly, the judgment of the lower court shall be reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act.

Since the statement of facts and evidence admitted as a member is the same as the judgment of the court below, this article 369 of the Criminal Procedure Act cites it.

The facts stated in the judgment of the Defendants are as follows: Articles 301, 297, and 30 of the Criminal Act are applicable to each of the above Articles. Since the Defendants’ age, character and conduct, family relation, as well as motive, means, results, and circumstances after the crime, etc. of this case, the Defendants 1 and 3 years of imprisonment within the scope of the term of punishment for which mitigation has been made pursuant to Articles 53 and 55(1)3 of the Criminal Act, and both Defendants 2 and 3 are juveniles under Article 2 of the Juvenile Act, and they are punished by imprisonment for a short term of two years and six months and three years pursuant to Article 54(1) of the same Act, and seven days of detention before the sentence of the judgment of the court below is included in the above sentence of the Defendants under Article 57(1) of the Criminal Act.

Since the sentencing of the Defendants on the above grounds is identical to the above, the Defendants’ assertion of unreasonable sentencing should be further determined, and the Defendant’s appeal is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act, on the ground that the Defendant’s appeal is without merit.

It is so decided as per Disposition.

Judge Lee Jung-gu (Presiding Judge)