Whether it constitutes "specific violent crimes" under Article 2 (1) 3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes where a crime of death or injury caused by rape is committed through simple rape (affirmative)

Article 2 (1) 3 of the Act on Special Cases Concerning the Punishment of Specific Crimes provides that "a specific violent crime" shall be defined as "a crime under Article 297 (Rape), Article 298 (Indecent Act by Indecent Act), Article 299 (Rape), Article 300 (Attempts, Indecent Act by Indecent Act), Article 305 (Rape, Indecent Act with Minor) and Article 301 (Death or Injury Resulting from Rape, etc.) of the Criminal Act which is separate from each crime under Article 297 through 300, Article 305 of the Criminal Act. Since Article 301 of the Criminal Act provides that "a specific violent crime under Article 30 of the same Act which carries a deadly weapon or other dangerous object or combined with two or more persons among the crimes under Article 32 of the Criminal Act shall be deemed as a crime under Article 297 (Rape), Article 301 of the Criminal Act which is an offense subject to victim's complaint, Article 301 of the Criminal Act provides that an act of rape shall not be an offense under Article 305 of the Criminal Act."

Article 2(1)3 of the Act on Special Cases concerning the Punishment of Specific violent Crimes, Article 301 of the former Criminal Act (amended by Act No. 5057, Dec. 29, 1995)

Defendant

Defendant

Attorney Kim Jong-soo

Gwangju High Court Decision 96No254 delivered on July 10, 1996

The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence.

1. We examine the grounds of appeal by a state appointed defense counsel.

The gist of the grounds of appeal is that Article 301 (Death or Injury resulting from Rape) of the Criminal Act provides that the act of causing rape in order to become a specific violent crime provided for in Article 2 (1) 3 of the Act on Special Cases concerning the Punishment of Specific Crimes (hereinafter referred to as the "Special Cases concerning the Punishment of Rape"), which is not a specific violent crime under Article 301 (the crime of causing Rape) shall be committed by carrying with him any deadly weapons or other dangerous articles or jointly with two or more persons. Although the crime of causing rape of the defendant does not constitute a specific violent crime under Article 30 of the Criminal Act, it is unreasonable for the court below to consider the crime of causing rape of the defendant as a specific violent crime under Article 30 of the above Special Cases concerning the Punishment of Rape, which is not a specific violent crime under Article 30 of the above Special Cases concerning the Punishment of Rape, and Article 2 (1) 3 of the Criminal Act provides that the crime of causing Rape of Article 30 of the above Special Cases concerning the Punishment of Rape, etc.

2. The defendant's grounds of appeal are examined.

In this case where a sentence of imprisonment with prison labor for less than 10 years is imposed against the defendant, the argument that the sentence is too unreasonable cannot be a legitimate ground for appeal.

3. 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 Justices involved.

Justices Park Jong-ho (Presiding Justice)