[1] The case reversing the judgment of the court below that the defendant's face in the course of rape was not sufficient to prove the victim's face, and even if a minor wound is recognized, the wound does not constitute injury caused by rape

[2] The case holding that the case was remanded to the court below for the reason that the dismissal judgment by the court below was reversed on the ground that it violated the law

[1] The case reversing the judgment of the court below which held that the defendant's face in the course of rape was insufficient to prove that the defendant's face of the victim was faced, and even if a minor wound is recognized, such wound does not constitute injury to the victim's face at the time of rape, on the ground that each statement made by the defendant and the investigative agency about the defendant's face at the time of rape was considerably more reliable than the defendant's and the victim's statement in the court of original instance

[2] The case holding that the case was remanded to the court below for the reason that the dismissal judgment by the court below was reversed on the ground that it violated the law

[1] Article 301 of the Criminal Code / [2] Articles 364(6) and 366 of the Criminal Procedure Act

Defendant

Prosecutor

Jina Jina

Law Firm New Law Firm, Patent Office, Attorney Lee Ho-ho

Incheon District Court Decision 2003Gohap394 delivered on November 27, 2003

The judgment of the court below is reversed.

The case is remanded to the Incheon District Court Panel Division.

1. Grounds for appeal by a prosecutor;

According to the evidence submitted by the prosecutor, the facts charged of the injury resulting from rape against the defendant are sufficient to be proved. However, the court below accepted the defense of the defendant without credibility and the statements made by the victim at the court below, and recognized only the crime of attempted rape on the ground that the confession of the defendant and the statement made by the victim at the time of the police investigation cannot be recognized as having suffered injury due to the victim's rape, and dismissed the prosecution of this case on the ground that the victim's complaint was revoked, thereby making it erroneous for the court below to mislead

2. Summary of the facts charged

At around 04:00 on June 22, 2003, the Defendant: (a) had the victim Nonindicted 1 (the victim 24 years of age), she had the victim her desire to commit rape; (b) had the victim 1:00 on the same day, she left the taxi on board with the victim, and had the victim "at the nearest to the point where she was under the influence of her own alcohol," and she had the victim go to the guest room of the first floor in Gwangjin-gu, Seoul Special Metropolitan City, the victim she tried to take the hand of the victim she wanted to go out of the guest room; (c) had the victim go beyond the room and kne kne kne kne kne kne kel kne kne kel fel fel fel fel fel fel fel fel fel fel fel fel fel fel fel fel f, but fel fel fel fel f.

3. Summary of the judgment below

A. The victim non-indicted 1 is acknowledged to have suffered bodily harm, such as the victim's name on the left side, the part of the right side of the crime of this case, but the assault used as a means of rape in order to establish the crime of bodily harm caused by rape. However, the defendant and the victim stated at an investigative agency that they met the face of the victim in the course of rape, but the defendant did not look at the face of the victim in court of the court below. In addition, the victim also stated at the court of court below that it is difficult for the investigator to take advantage of the victim's face at the time when the police investigation was conducted, and it is difficult for the defendant to take advantage of the victim's face at the time when the defendant tried to rape, or it is hard for the victim to take care of the victim's face at the time when the defendant tried to rape, or that the defendant was out of the victim's face at the time of carrying out 200 times after the victim's oral appearance and 3 times after the victim's oral appearance.

B. Meanwhile, even if there is a possibility that the defendant might take part in the process of taking care of the victim's body's inner part, the right pressure part, the examination part of the victim's upper part in the process of taking care of the victim's body's injury and the defendant's act is caused by the defendant's act, in light of all the circumstances shown in the records, the upper part is only a minor part that can be naturally cured, and it cannot be viewed as "injury caused by rape" in the crime of rape.

C. Therefore, the facts charged of the crime of causing rape fall under a case where there is no proof of crime, and the part concerning attempted rape included in the facts charged can be prosecuted only when the victim filed a complaint. However, since the victim expressed his/her intent to revoke the complaint before the prosecution of this case, the prosecution of this case constitutes a case where the procedure for instituting a prosecution is in violation of the law and becomes null

4. Determination on the grounds for appeal

A. According to the statements of the lower court’s witness Nonindicted 1 and Kim Ma-sik, the statement of fact-finding inquiry by the head of the Sinsa Hospital and the head of the Sinsa Hospital, the prosecutor’s protocol of investigation by the Defendant, the police protocol by Nonindicted 1, the statement of the police protocol by Nonindicted 1, the injury diagnosis statement already prepared by the doctor, and the copy of the records of medical records by self-help and oriental medicine

(1) 피해자 공소외 1은 이 사건 범행 당일 피고인을 고소하고, 그 다음날 경찰에서 처음 조사 받으면서 "피해자와 위 공소외 2는 평소 아는 사이인데, 사건 당일인 2003. 6. 22. 피해자는 공소외 3을, 공소외 2는 피고인을 데리고 나와 두 사람을 서로 소개시켜 주기 위해 만났고, 피해자도 그 날 피고인을 처음 만났는데, 피고인이 술이 많이 취하여 택시를 잡아 주었다가 피고인이 손을 놓지 않아 함께 택시를 타고 가게 되었고 피해자가 자신의 집 부근에서 내리자 피고인도 함께 내려 술을 많이 마셔 못 움직이니 여관에 데려다 주고 공소외 2를 불러 달라고 하여 여관으로 데려 갔는데, 여관방에서 피해자가 나오려고 하자 피고인이 손을 잡아당겨 방바닥에 넘어졌고, 피고인이 피해자 다리 위로 올라와서 다리를 움직이지 못하게 하고, 손으로 양 손을 잡고 있다가 피해자가 옷을 벗으라는 말을 듣지 않고 몸부림을 치면서 반항을 하니까, 다시 피해자 오른손을 피고인의 무릎으로 누르고 피해자 왼손을 한 손으로 잡고 나머지 한 손으로 피해자 얼굴을 때리고, 피해자가 살려 달라는 등 큰소리를 지르니까 손으로 피해자 얼굴을 마구 때려 더 이상 고함을 칠 수가 없을 정도였고, 결국 피고인이 피해자 바지를 벗겼다. 쓰러진 상태에서 폭행을 당하여 왼쪽 얼굴 눈 부위에 멍이 들어 있고, 귀, 턱도 아프고, 피고인이 오른손을 무릎으로 눌러 손가락의 마디가 아프고 멍이 있고, 손등도 아프다."고 진술하였다. 당시 조사 경찰관 김윤식은 피해자의 왼쪽 눈동자가 약간 빨갛고, 눈 아래로 빨갛게 멍이 들어 있으며, 오른손 손가락마디, 손등에 약간 빨갛게 멍이 있는 것을 확인하고 그 내용을 조서에 기재해 두었다.

On June 30, 2003, the injured party visited the hospital, and submitted a written agreement on July 7, 2003 to the police.

At the time of investigation by the prosecution on July 24, 2003, the following day after the agreement, the Defendant stated, “At the time of the investigation by the prosecution, the Defendant was forced to leave the floor of Nonindicted Party 1’s hand, and was unable to leave the body by going off with panty and panty, and going back to the top. Nonindicted Party 1 tried to have a sexual intercourse with Nonindicted Party 1’s face at the same time by cutting down her body and resisting her body in mind, and resisting her face several times.” The Defendant stated, “The Defendant was aware that there was a little standing position since her face was 10 times in the course of rape.”

(2) On the first trial of the lower court, the Defendant stated that “At the time of rape, or before and after rape, he shall not be memory at all”.

At the third trial of the court below, the victim appeared as a witness and there is a fact that he had been faced with ice. However, whether the defendant and Nonindicted Party 2 were faced with fice, and whether the defendant and Nonindicted Party 2 had been raped from the defendant. At the time when the defendant and Nonindicted Party 2 wraped, the defendant her nose and her son face was recorded, and there was no yellow situation at the time when she took her son at that time. The defendant was her son at that time, and there was no yellow situation. The victim might her her son at that time. While the defendant took her her face to the female employee from leaving her her her face, it is not true that her her face was not accurately memory. The defendant exceeded the body of the defendant, and the defendant left her her face was unable to have his her her son and her son's son's son's son.

(3) On June 23, 2003, the day following the crime of this case, the victim was diagnosed at the Young Hospital on the day following the crime of this case that he was accompanied by the wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale wale.

B. According to the above facts, it is difficult to accept the judgment of the court below for the following reasons.

(1) First, based on the statement made by the Defendant and the victim in the lower court, the lower court rejected all statements made by the Defendant and the victim in the investigative agency that the Defendant had the victim’s face at the time of committing rape, and held that there is insufficient evidence to acknowledge the part of the charges.

① However, it is difficult to reject credibility of the prosecutorial investigation of the Defendant because the Defendant, even after having agreed with the victim, stated the victim’s face at the time of rape. ② The statement describing the situation of rape at the time of the police investigation is difficult to deem that the victim stated differently from the fact in detail, as well as it is naturally consistent with the details of the police officer’s confirmation of injury and the medical institution’s diagnosis result. However, if the young female victim told the victim of fighting with Nonindicted Party 2, it would be sufficient that the victim took her face from the Defendant first her face to take care of the Defendant, even if there was a dispute between the Defendant and Nonindicted Party 2 because it would be difficult to easily understand that the victim took her face to take care of the victim, and it would be more likely that the victim could not take care of the victim’s face at the time of the crime of rape, and it would be more reasonable to reverse the victim’s face at the time of the lower court’s statement than the victim’s statement in detail at the time of the crime of rape with the Defendant and Nonindicted Party 2.

(2) In addition, even if there is a possibility that part of the wife suffered by the victim may occur in the process of taking the victim in hand to prevent the defendant from leaving the victim, it is difficult to accept the judgment of the court below that such wife does not constitute injury resulting from rape.

In a case where the upper body of the victim’s body is extremely minor, it does not constitute an injury. However, such upper body is premised on the fact that there is no assault to suppress the victim’s resistance in daily life or that there is the same degree as the upper body ordinarily likely to occur in sexual intercourse in accordance with an agreement. Thus, if the upper body above such degree is caused by the assault of rape, it constitutes an injury (see Supreme Court Decision 2003Do4606, Sept. 26, 2003, etc.). Even according to the victim’s oral statement at the court below, even according to the victim’s oral statement at the court below, the victim’s body frighten and perfectly frightening the victim’s face to escape from rape, and it is evident that the victim’s body was out of the right-hand body of the victim’s kne and kne, and thus, it is clear that the sexual body’s injury was sufficiently divided into kne and knene’s injury to the woman’s body.

(3) Therefore, the court below determined that the defendant's face in the course of rape is not sufficient to prove the victim's face, or even if the defendant's face is recognized as a minor wound does not constitute the injury caused by rape, and there is an error of law by misunderstanding the facts, or by misunderstanding the legal principles as to the injury caused by rape, which affected the conclusion of the judgment. Accordingly, the prosecutor's appeal

5. Conclusion

Therefore, the prosecutor's appeal is with merit, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act. Since the court below's dismissal decision is reversed for the reason that it is in violation of the law, the case is remanded to the court below under Article 366 of the Criminal Procedure Act. It is so decided as per

Judges Noh Young-dae (Presiding Judge)