[1] The meaning of existence of a de facto relationship under Article 7 (4) of the Act on the Punishment of Sexual Crimes and the Protection of Victims Thereof

[2] Whether shesheshesheshes is included in the existence of a de facto relationship under Article 7(4) of the Act on the Punishment of Sexual Crimes and the Protection of Victims (negative)

[1] Article 7 (1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof applies when a relative with an extension of the period of existence, etc. commits a crime under Article 297 of the Criminal Act. According to Article 7 (3) of the same Act, the scope of relatives under the above Article 7 (1) shall be limited to blood relatives within the fourth degree. However, Article 7 (4) of the same Act provides that the existence or relatives of a de facto relationship shall include the existence or relatives of a de facto relationship. In addition, penal provisions must clarify the contents of the provision, and penal provisions shall be strict and analogical interpretation is not permitted, so the existence of a de facto relationship under Article 7 (4) of the same Act refers to a person who is in a relationship with a natural blood relative but is not recognized as a legal existence due to the non-performance of the legal procedure (for example, a person who was a child born other than a marriage before recognition or a person who was in a de facto marital relationship with a person who was not recognized as a de facto marital relationship due to filing a report, etc.

[2] A person who has no blood relationship with the victim, but is in the de facto marital relationship with the victim 1, the mother of the victim, and the father and wife of the victim, does not include a person who is in the de facto marital relationship with the victim, as stipulated in Article 7(4) of the Punishment of Sexual Crimes and Protection of Victims, etc.

[1] Article 7 (4) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof / [2] Article 7 (4) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

[1] [2] Supreme Court Decision 95Do2646 delivered on February 23, 1996 (the same purport)

Defendant

Defendant

Attorney abnormal Guil

Gwangju High Court Decision 95No607 delivered on November 22, 1995

All of the judgment of the court of first instance except for the crimes No. 1 and No. 2 of the judgment of the court of first instance shall be reversed, and this part of the case shall be remanded to the Gwangju High Court

1. As to the Defendant’s ground of appeal No. 1

The court below recognized the fact that the defendant inflicted an injury on the victim 1 in de facto marital relations as the reasons stated in its decision and applied Article 2 (2) and (1) and Article 257 (1) of the Punishment of Violences, etc. Act to the defendant's act. It is proper that the defendant is punished by the application of Article 2 (2) and (1) and Article 257 (1) of the Criminal Act, and there is no error in the misapprehension of legal principles as to Article 2 (2) and (1) of the Punishment of Violences, etc. Act due to a mistake of facts

2. As to the Defendant’s ground of appeal

A. According to the reasoning of the judgment below, the court below maintained the judgment of the court of first instance that found the defendant guilty by applying Articles 12, 7(1) and (4) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (hereinafter referred to as the "Sexual Crimes Act"), Article 297 of the Criminal Act or Article 7(1) and (4) of the Sexual Violence Act, Article 297 of the Sexual Violence Act, Article 297 of the Sexual Violence Act, and Article 297 of the Criminal Act, to the facts of this case that "the defendant committed rape at the defendant's house located in the house located in the defendant's house located in the defendant's house located in his house located in the Sinsan-si, Sinsan-si."

B. However, Article 7(1) of the Sexual Violence Act provides that the scope of relatives within the fourth degree of relationship shall be limited to blood relatives under the above Article 7(3) of the Criminal Act when the relatives of extension such as the continuance of existence, etc. commit the crime under Article 297(1) of the Criminal Act. However, Article 7(4) of the same Act provides that the existence or relatives of the above Article 7(1) shall include the existence or relatives of the de facto relationship. The penal provisions shall clarify the contents of the provision, and it shall not be strictly and analogically interpreted in the interpretation, so the existence of the de facto relationship under Article 7(4) of the above Act is not recognized as legal existence due to the non-performance of the legal procedure (for example, the birth or father of a child born other than the marriage before recognition), but all of the real relationship determined by the law such as the agreement of the intention to establish a legal relationship but cannot continue to exist due to the non-performance of the legal procedure such as reporting (for example, a person who has no de facto relationship or any other relationship with the parties).

C. In the instant case, according to the health team and the record, the Defendant did not have any blood relationship with the victim 2, but only lives together with the victim 2 as the mother of the victim 1 and the father. As such, the Defendant does not continue to exist under Article 7 of the Sexual Violence Act. Meanwhile, the victim 1, a person with parental authority, who was the legal representative of the victim 2, filed a complaint on the said facts charged, but revoked the complaint before the instant indictment. As such, the part of the instant violation of the Sexual Violence Act constitutes null and void in violation of the provisions of the Act, the judgment dismissing the prosecution pursuant to Article 327 subparag. 2 of the Criminal Procedure

Nevertheless, the court below maintained the judgment of the court of first instance (the judgment of the court of first instance No. 3 and No. 4) which found all the charges of violating the Sexual Violence Act guilty on a different premise. Thus, the court below did not err by misapprehending the legal principles on "the existence by a de facto relationship" under Article 7 of the Sexual Violence Act, which affected the conclusion of the judgment, and there is a ground for appeal pointing this out.

D. However, the first instance court, cited by the lower court, determined a separate punishment for the crime No. 1, No. 2, and No. 3 as indicated in its holding, on the ground that the first head of the judgment and the second and third concurrent crimes under the latter part of Article 37 of the Criminal Act are concurrent crimes under Article 37 of the Criminal Act. On the other hand, the crime No. 4 as indicated in its holding is concurrent crimes under Article 5 and the former part of Article 37 of the Criminal Act, and sentenced a single punishment for the crime No. 4 and No. 5 as stated in its holding. 1 and No.

3. Therefore, without further proceeding to decide on the Defendant’s remaining grounds of appeal, all parts of the crimes of Articles 3, 4, and 5 as indicated in the judgment of the court of first instance maintained by the lower court are reversed, and these parts of the case are remanded to the lower court for further proceedings consistent with this Opinion. The remaining grounds of appeal by the Defendant are dismissed. It is so decided as per

Justices Kim Jong-sik (Presiding Justice)