(a) Number of crimes of intrusion upon residence and rape;

B. Whether the crime of attempted rape and the crime of extortion under the Punishment of Violences, etc. Act constitute the same or similar crime under Article 16(2) of the Social Protection Act (negative)

A. The crime of violation of the Punishment of Violences, etc. Act and the crime of rape is established in the event that a person intrudes upon a human habitation at night with a deadly weapon and commits rape. In this case, two crimes are concurrent crimes.

B. The crime of attempted rape and the crime of intimidation in violation of the Punishment of Violences, etc. Act shall not be the same as or similar to the crime under Article 6 (2) of the Social Protection Act, because it cannot be seen that the crime is the same as the name and nature of the crime, the protected legal interest, the law and tendency of the crime,

A. Articles 37 and 297 of the Criminal Act; Article 6(2) of the Social Protection Act

Defendant and Appellant for Custody

Prosecutor and Defendant

Law Firm Wol General Law Office, Attorney Park Gyeong-young

Seoul High Court Decision 88No1644,88No137 Decided August 23, 1988

All appeals are dismissed.

70 days, out of the days pending trial after appeal, shall be included in the principal sentence.

We examine the Defendant’s grounds of appeal.

The facts charged in this case against the defendant and the facts acknowledged by the court below are all revealed in the record that the provisions of this Act are Article 3(2) and (1) and Article 2(1) of the Punishment of Violences, etc. Act and Article 319(1) of the Criminal Act, and therefore, it is not an offense subject to prosecution subject to prosecution. Therefore, even if the complaint was revoked by the victim, it is impossible to dismiss the prosecution.

Therefore, this paper is without merit.

The grounds of appeal by the defense counsel are examined.

With respect to No. 1:

The crime of violation of the Punishment of Violence, etc. Act (hereinafter referred to as "violation of Residence") and the crime of rape shall be established at night when a person intrudes upon a human habitation with a deadly weapon and commits rape. In this case, the two crimes shall be deemed to be in a substantive concurrent relationship. Therefore, even if the complaint was revoked in the crime of rape, a legitimate public prosecution shall be instituted regarding the crime of intrusion of residence. In this case, the crime of intrusion of residence shall be deemed to be a separate crime committed at the preceding stage of the crime of rape rather than the means of the crime of rape. Therefore, the above two crimes shall not be deemed to be in a legally agreed relationship. Accordingly, the argument is groundless.

With respect to the second ground:

Examining the judgment of the court below and the part concerning the case of the court of first instance maintained by the court below in comparison with the records, the court below's finding of guilty of the defendant's residential intrusion and rejected the allegation of mental and physical disorder is acceptable, and there is no error of law by misunderstanding the legal principles as to mistake of facts or mental and physical disorder due to violation of the rules of evidence

Therefore, this paper is without merit.

As to the Prosecutor’s Grounds of Appeal on Protective Custody:

Although the crime of attempted rape and the crime of intimidation in violation of the Punishment of Violences, etc. Act may be deemed to have been aggressive or violently committed, it does not constitute a crime of the same kind or similar under Article 6 (2) of the Social Protection Act as the name and nature of the crime, the legal interest and protection of the crime, the number and tendency of the crimes, the type of crimes, etc. are not the same. Therefore, the judgment of the court below is just and there is no violation of law of misunderstanding the legal principle of protective custody, such as theory of action

The essay is groundless.

Therefore, all appeals are dismissed, and part of the number of days pending trial after the appeal is to be included in the principal sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ansan-man (Presiding Justice)