A. In a case where a charge of causing rape was prosecuted, the court below's decision on the charges of rape without any changes in the indictment

(b) Measures by the court where only the charge of rape is proven in a case prosecuted for causing rape and the victim has withdrawn the complaint;

A. The crime of bodily injury resulting from rape is a result of the crime of rape, which includes the facts charged of the crime of rape among the facts charged of the crime of rape, and the court may deliberate and decide on the facts charged of the crime of rape without any amendment process.

B. Where there is no proof as to the injury resulting from rape in a case where a public prosecution was instituted, and there is no proof as to the fact of rape, the court may find the person guilty of rape. In this case, if the complaint was revoked before the judgment of the court of first instance, which is a requirement for prosecution, prior to the judgment of the court of first instance, a judgment dismissing the public prosecution shall be sentenced pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act, and it shall not be deemed that there is no proof of the crime, and thus,

A. Article 298 of the Criminal Procedure Act (Article 254 and Article 327 subparag. 5 of the Criminal Procedure Act)

A. Supreme Court Decision 68Do1601 Decided February 18, 1969; Supreme Court Decision 80Do1225 Decided October 27, 1980

Defendant

Prosecutor

Attorney Kim Dong-hwan

Daegu High Court Decision 87No1182 delivered on October 29, 1987

The lower judgment and the first instance judgment are reversed.

The prosecution of this case is dismissed.

The prosecutor's grounds of appeal are examined.

With respect to No. 1:

According to the reasoning of the judgment below, the court below held that there is sufficient evidence as to the crime of rape against the defendant among the facts charged in this case (the injury resulting from rape), but it is hard to believe the evidence consistent with the judgment as to the injury, and there is no other evidence as to this point.

In light of the records, the court below's above fact-finding process is just and acceptable, and there is no illegality in determining evidence against the rules of evidence or against the rules of experience.

There is no reason to discuss.

With respect to the second ground:

According to the reasoning of the judgment of the court below, the court below acknowledged the fact that the defendant committed assault against the victim of this case and failed to resist, and stated that there was no evidence to acknowledge that the victim was injured by the rape of this case, etc., and therefore, it constitutes part of the elements of the crime of rape of this case. Thus, the court below can discuss the facts without any amendment of the indictment, but it can be acknowledged that the victim of this case has revoked the complaint on January 27, 1987, which was before the first instance judgment after the prosecution of this case. This part of the judgment of the court below should be dismissed pursuant to Article 327 subparag. 5 of the Criminal Procedure Act, and it is sufficient that the court below erred in the misapprehension of legal principles as to the crime of rape of this case, which affected the conclusion of the judgment of the judgment of the court below as to the crime of rape of this case. Thus, the court below's judgment is justified in its judgment that the court below should not dismiss the charge of rape of this case since it did not contain sufficient evidence as to the crime of rape of this case.

Of the facts charged in this case against the defendant, it is recognized that the defendant raped the victim as stated in the facts charged. However, there is no proof about the injury, which is the same as the reasoning of the judgment of the court below on this point, and therefore, the judgment of the court of first instance which found the defendant guilty of the whole charge of the crime of causing rape against the defendant is ultimately an unlawful determination of facts, and therefore, there is a reason to discuss about the appeal by the defendant and his defense counsel against this point, and therefore, the judgment of the court of first instance cannot be reversed.

In addition, as mentioned above, the defendant has been raped as stated in the judgment of the victim in this case, and it is clear that the victim has revoked the complaint of this case on January 27, 1987, prior to the judgment of the court of first instance. Thus, the prosecution of this case against the defendant is dismissed in accordance with Article 327 subparagraph 5 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)