The number of crimes in which several persons conspired to rape the same person in succession;

In the case where several persons conspired to rape the same person in successive order, the number of crimes shall be determined taking into account the place of time, the intention of the offender, the state of the victim, etc., and where the person continues to engage in sexual intercourse by taking advantage of the victim’s state of failure to resist, the crime of injury resulting from rape is not established, and the crime of injury resulting from rape is not established according to the recovery of sexual intercourse.

Articles 297 and 301 of the Criminal Act

Defendant 1 and one other

Prosecutor and Defendant 1

Gwangju District Court Decision 76 High Court Decision 76Gohap19)

The judgment of the court below is reversed.

Defendant 1’s imprisonment with prison labor for a short term of two years and six months, a long term of three years, and a term of two years and six months, respectively.

Provided, That with respect to Defendant 2, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

The prosecutor's grounds for appeal are that the sentencing of the court below, which sentenced the suspension of execution for three years, is too unfasible, because it is too unfasible; the reasons for appeal by the prosecutor are two years and six months of imprisonment for a short term of two years and six months of imprisonment for Defendant 1; and

The summary of the grounds for appeal by Defendant 1 and his state appointed defense counsel is that the above sentence imposed by the court below against Defendant 1 is too unreasonable. However, the court below acknowledged, in collusion with Nonindicted 1 and 2 on February 4, 1976, that the Defendants enticed Nonindicted 3 on the third floor of the building in the Yannam-si market and caused them to resisting from doing so, and that they had sexual intercourse with Nonindicted 1, 2, and Defendant 1, and caused them to suffer from an external bid and injury for about five days in the order of Nonindicted 1, 2, and Defendant 1, each so-called Defendants falls under Articles 301, 297, and 30 of the Criminal Act, and each of the above offenses committed by the Defendants constitutes concurrent crimes under Articles 38(1)2 and 50 of the Criminal Act.

However, in the case of rape by several persons in successive order, the crime shall be decided by taking into account the time and place, the intention of the offender, the state of the victim, etc. In this case, the location is the same and time, and the defendant 1 and the above non-indicted 3 continued to have sexual intercourse with the victim who has failed to resist to do his act, using the victim's state. Thus, the crime of rape is not only one crime, but also one crime is committed against the defendants at each time of rape of the victim non-indicted 3, and the judgment of the court below is erroneous in the violation of law. Since this affected the judgment, the judgment of the court below is omitted on the grounds for appeal of unfair sentencing by the prosecutor and the defendant 1, and the decision of the court below is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and the summary of criminal facts and evidence against the defendants recognized as a party member is the same as the judgment of the court below and it is again accepted.

Since the court below's decision falls under Articles 301, 297, and 30 of the Criminal Act, the defendant's judgment below constitutes a limited term of punishment. The defendant 1 is sentenced within the scope of each term of punishment mitigated under Articles 53 and 55 (1) 3 of the Criminal Act. Since the defendant 1 is a juvenile under Article 2 of the Juvenile Act, the defendant 1 is sentenced to imprisonment for two years and six years and three years, and the defendant 2 is sentenced to imprisonment for two years and six months, and the defendant 2 is sentenced to imprisonment for 80 days before the sentence is sentenced to imprisonment, and the defendant 2 does not directly engage in sexual intercourse with the victim 3, and the defendant 2 does not come to the execution of the above sentence for 2 years from the date the judgment below became final and conclusive under Article 57 (1) of the Criminal Act.

Judges Noh Jeong-man (Presiding Judge)