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The prosecutor's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Legal principles and a person subject to a request to attach an attachment order (hereinafter referred to as “defendant”) committed rape with a third party who is unaware of the circumstance, and thus, it is deemed that at least two persons have committed a crime in cooperation with a location and thus, it is evaluated as a special rape, not simple rape. However, the court below erred by misapprehending the legal principles of a joint crime, thereby dismissing the public prosecution on the ground that the victim acquitted the part concerning special rape among the facts charged and revoked the complaint.
B. The sentence of unfair sentencing (one year of imprisonment with labor for six months and one year of suspended execution) by the lower court is too uneasible and unfair.
2. Determination:
A. The summary of the facts charged in this part of the judgment on the assertion of misapprehension of the legal principle is that the Defendant had H, who was aware of the fact that the victim had been at the suppression of his resistance, to have sexual intercourse with the victim, and the Defendant and H committed rape. The lower court found the Defendant not guilty of the part concerning special rape on the ground that, even if the Defendant and H had sexual intercourse with the victim, insofar as there was no intent to rape with the victim at the time of the sexual intercourse, it cannot be deemed that two or more persons jointly committed the crime of rape (the Defendant’s act constitutes the crime of rape and the crime of rape in the form of indirect crime by using a third party).
A) In order to establish a joint crime, at least two persons should be recruited as subjective elements, and at least two persons should share the criminal act at the site as an objective element (see, e.g., Supreme Court en banc Decision 98Do321, May 21, 1998). In other words, a joint crime is a crime by adding the elements of “on-site sex” to the basic sign of the joint principal offender, which is the control of two or more acts, and is basically aggravated than a simple co-principal.