Punishment in the event that robbery has caused rape and attempted to commit rape, but the rape has not been achieved in itself, and the injury has been inflicted on the victim.

After having participated in the commission of robbery, in the event that rape was committed, but the rape was not committed and the victim was inflicted on that opportunity, the so-called so-called crime is only an ordinary competition between attempted robbery and the injury resulting from rape, and does not constitute a separate liability for the injury resulting from robbery.

Articles 301, 337, 339, and 342 of the Criminal Act

Defendant

Defendant and Prosecutor

Daejeon District Court Decision 84 High Court Decision 50

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for five years.

One hundred days out of the detention days prior to the declaration of the original judgment shall be included in the above sentence.

The excessive one (No. 2) seized shall be forfeited from the accused.

The first ground for appeal by the defendant and his defense counsel is that the defendant only committed the attempted rape in the judgment, and there is no attempted rape, robbery, injury by robbery, and injury by rape, and even if the defendant recognizes the defendant's act as a crime, it is not possible to regard it as a crime of simple indecent act, but there is an error of law by misapprehending the legal principles on mistake of facts, attempted rape, robbery, injury by robbery, injury by rape, etc. which affected the judgment, and the second ground for appeal by the court below which sentenced 7 years of imprisonment is too unreasonable.

The gist of the reasons for appeal by the prosecutor is that the sentencing of the court below is too uncomfortable.

First of all, according to the evidence duly examined and adopted by the court below as to the assertion of misunderstanding of facts, it is possible to recognize the attempted robbery, rape, injury resulting from rape as judged by the court below, and there is no error in the process of fact-finding or the preparation of

However, the facts of Article 2 at the time of the judgment of the court below are the following: although the victim's wife tried to rape by causing rape after the commencement of robbery and the commission of robbery, but the opportunity was not achieved by the rape itself, and it does not arise from the opportunity to threaten after intrusion upon the purpose of robbery, the defendant's so-called "the defendant's so-called crime of robbery" is only the ordinary concurrence between attempted rape and the injury resulting from robbery, and does not constitute separate liability for the crime of robbery. However, the court below's finding the so-called "the crime of robbery resulting from robbery" as to the crime of robbery in addition to attempted rape and the injury resulting from robbery is erroneous in the misapprehension of legal principles as to the crime of robbery.

Therefore, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act since the judgment of the court below did not dismiss the reversal without determining the allegation of unfair sentencing, and the party members are again decided as follows after pleading.

The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

The act of the defendant in Article 300 and Article 296 of the Criminal Act; the act of attempted rape in Article 2 of the judgment below falls under Articles 342, 339 of the Criminal Act; the act of injury resulting from rape falls under Articles 301, 300 and 297 of the Criminal Act; the crime of attempted rape and injury from rape in Article 301, 30 and 297 of the Criminal Act; and the crime of attempted robbery and injury from rape in the judgment of the court below constitutes one act and several crimes; the crime of attempted rape in Article 40 of the Criminal Act is subject to punishment provided for in the crime of attempted rape in Article 37 of the Criminal Act; the crime of attempted rape in Article 38 (1) 2 of the Criminal Act and Article 50 of the Criminal Act are concurrent crimes; and the punishment of attempted rape in Article 15 of the Criminal Act shall be included in the imprisonment under Article 50 of the Criminal Act within the scope of the punishment of imprisonment with prison labor for up to five years;

In addition, excessive one (No. 2) seized is a thing used for the instant crime, and it does not belong to the ownership of a person other than the criminal, and thus, it shall be confiscated from the criminal defendant pursuant to Article 48(1)1 of the Criminal Act.

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

Judges O Byung-Jon (Presiding Judge) Kim Jong-nam et al.