[1] Criteria for determining bodily injury resulting from rape

[2] The case reversing the judgment of the court below that the "in the course of the victim's resistance to rape in a small passenger car," etc., caused by physical collision with the defendant, does not constitute an injury resulting from rape

[1] The reason why the injury resulting from rape is extremely minor and thus, in a case where there is no need for treatment and there is no obstacle in natural recovery and daily life, it does not constitute the injury of the injury resulting from rape. However, such reason is premised on the fact that there is no assault or intimidation that may suppress the victim's resistance, or that the act of sexual intercourse is the same as the injury that may normally occur during his/her daily life, even though there is no assault or intimidation that may suppress the victim's resistance. Thus, if the injury exceeding such degree is caused by the assault or intimidation, the injury shall be deemed to constitute the injury. Whether the victim's health condition is changed to a bad condition and has caused an impediment in his/her living function shall not be determined objectively and uniformly, but shall be determined on the basis of the victim's age, gender, body, and mental and physical condition

[2] The case reversing the judgment of the court below that the "in the course of the victim's resistance to rape in a small passenger car," which caused physical collision with the defendant, does not constitute injury resulting from rape.

[1] Article 301 of the Criminal Code / [2] Article 301 of the Criminal Code

[1] Supreme Court Decision 2003Do4606 decided September 26, 2003 (Gong2003Ha, 2141)

Defendant

Military prosecutor;

Attorney Kim Jae-young

High Court for Armed Forces Decision 2004No374 Decided January 18, 2005

The judgment below is reversed, and the case is remanded to the High Military Court.

According to the reasoning of the judgment of the court below, according to the written confirmation of the intent to prepare the medical certificate of this case, the court below stated that the above wife itself will not be a big problem in healing. According to the victim's father's statement, the victim's father's wife's wife's wife's wife's wife's wife's knee knee se se se se se se se se se se se se se se se se se se se se se se ses at the home without any hospital. The hospital stated that it will not interfere with life. The victim's written confirmation also does not interfere with the victim's life." The victim's act of this case's injury to the victim's body cannot be seen as being damaged by the victim's injury to the victim's life after the victim's injury to the victim's life.

In a case where there is extremely minor injury resulting from rape and there is no obstacle to natural therapy and daily life, the injury does not constitute the crime of bodily injury resulting from rape. However, such argument is based on the premise that there is no assault or intimidation to suppress the victim's resistance, or that it is equivalent to an ordinary injury that may occur in his/her sexual intercourse in accordance with an agreement, even though there is no assault or intimidation to suppress the victim's resistance. Thus, if an injury exceeding such degree is caused by such assault or intimidation, the injury shall be deemed to fall within the scope of injury. Whether the victim's health condition is changed to a bad and has an obstacle to his/her living function shall not be objectively and uniformly determined, but shall be determined on the basis of the victim's age, gender, physical and mental concrete condition, such as physical and mental condition (see Supreme Court Decision 2003Do4606, Sept. 26, 2003).

According to the records, at around 16:00 on the day of the instant accident, the victim visited the hospital at around 16:00, to treat ele parts and ele parts of the elbow, and according to the injury diagnosis certificate issued by the above hospital, the injured part of the victim is 's slurging, surging, surging, surging, and the right side surging', and the expected treatment period is 2 weeks from the day of the water surface, and may require hospitalization and future treatment (including mental treatment). The victim is a body of 40 kilograms in the extension of 154cm with 154cm from the third grade female in the middle school. The victim cannot be readily concluded that such physical conflict between the victim and the defendant, who is a soldier with 40 vehicles, tried to get out of the narrow space of the above vehicle, and the victim's body cannot be altered to the extent that it does not interfere with the daily life of the victim in light of the above legal principles.

Nevertheless, the court below held that the victim's wife did not constitute the injury caused by rape as provided for in the crime of injury resulting from rape, and there is an error of law by failing to exhaust all necessary deliberations or by misapprehending the legal principles as to the injury caused by rape, thereby affecting the conclusion of the judgment. The ground of appeal

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)