[1] The relationship between the crime of causing special rape under Article 9 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof and the crime of punishing attempted rape under Article 12 of the same Act

[2] The case holding that in a case where: (a) attempted rape using an electronic percussion lock, which is a dangerous object; (b) was committed; and (c) was inflicted on the victim, such as an inner leg, which requires treatment for about two weeks, the crime of bodily injury resulting from special rape under the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof is established

[1] According to Article 9(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, not only a person who commits a crime of special rape under Article 6(1) of the same Act, but also a person who commits a crime of special rape under Article 6(1) of the same Act, even though he/she committed such crime, if the victim suffered a bodily injury, the crime of causing a bodily injury. A penal provision on Article 9(1) of the same Act is applicable to an attempted crime of bodily injury resulting from special rape under Article 9(1) of the same Act along with a crime of causing a bodily injury resulting from special rape under Article 9(1) of the same Act. In other words, the same shall apply to a case where a person who commits a crime of special rape or committed such crime with intent to inflict a bodily injury on the victim.

[2] The case holding that in a case where: (a) attempted rape using dangerous electronic percussion locks, which are dangerous objects; (b) attempted rape; and (c) inflicted bodily injury on the part of the victim, such as the inside and outside of the earth requiring treatment for about two weeks, the crime of bodily injury resulting from special rape under the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

[1] Articles 6(1), 9(1), and 12 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof / [2] Articles 6(1), 9(1), and 12 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

Defendant

Defendant

Attorney Choi Byung-hoon

Gwangju High Court Decision 2007No162 decided Nov. 9, 2007

The appeal shall be dismissed. 160 days out of the number of detention days after the appeal shall be included in the original sentence.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

According to Article 9(1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, even though not only a person who commits a crime of special rape provided for in Article 6(1) of the same Act but also a person who commits a crime of special rape, if the victim suffers any injury, the crime of causing special rape shall be established. The provision on the punishment of attempted rape provided for in Article 9(1) of the same Act provided for in Article 12 of the same Act shall apply to an attempted crime of causing special rape provided for in Article 9(1) along with the crime of causing special rape in Article 9(1) of the same Act. In other words, the provision on the punishment of attempted rape provided for in Article 9(1) of the same Act applies to a person who commits a crime of special rape or a person who

In light of the evidence in the judgment below, the court below acknowledged the fact that the defendant tried to commit rape by assaulting the victim on the victim's her hummatic percussion lock, which is a dangerous object, by taking account of the evidence in the judgment of the court below, and thereby causing bodily injury to the victim, such as the safe humbalum, which requires approximately two weeks of treatment. Accordingly, it is just in light of the records and the legal principles as seen earlier, and there is no illegality in the misapprehension of legal principles as to the attempted crime of aggravated crime, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

A. As to the admissibility of the diagnosis document

Except in cases where there is an obvious clerical error or error in the protocol of trial, the document recorded in the protocol of trial as a litigation procedure is proved only by the protocol, and its probative value is absolute in which counter-proof is not allowed by data other than the protocol of trial (see Supreme Court Decisions 2005Do6557, Dec. 22, 2005; 2002Do2134, Jul. 12, 2002, etc.).

According to the records, the defendant's consent to the medical certificate submitted by the prosecutor on the first trial date of the first instance court can be found to have been stated in the evidence list, and there is no evidence to deem that the statement was due to an obvious clerical error or error, and the grounds of appeal disputing the admissibility of the above medical certificate against the entry in the evidence list cannot be accepted.

B. Regarding the point of injury and the credibility of the diagnosis document

The argument to the effect that the judgment of the court below on the point of injury and the credibility of a medical certificate is ultimately an error in the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below, and it cannot be accepted in all. Unlike the judgment of the court below, it does not seem to be unlawful such as violation of the rules of evidence, incomplete deliberation, and misapprehension of legal principles which affect the judgment of the court below. The Supreme Court precedents pointed out in the ground of appeal

3. Regarding ground of appeal No. 3

Examining the evidence admitted by the court below in light of the records, since it is recognized that the defendant possessed electronic percussion locks without permission from the chief of the police station having jurisdiction, the judgment of the court below that the defendant violated the Control of Firearms, Swords, Explosives, etc. Act is just and it is not acceptable to accept the defendant's assertion that the defendant caused the violation of this Act, and

4. Conclusion

Therefore, the appeal shall be dismissed, and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)