1. The judgment below is reversed.

2. Defendant A shall be punished by imprisonment for three years and six months, and Defendant B shall be punished by imprisonment for two years and six months.

3...

1. The summary of the grounds for appeal that the court below sentenced the defendants to each punishment (four years of imprisonment with prison labor) is too unreasonable.

2. We examine ex officio the grounds for appeal by the Defendants prior to the judgment.

In a case where the same assault and intimidation makes it impossible or considerably difficult to resist or have sexual intercourse several times, if it can be deemed as a single continuous act in view of the offender’s intent, time of crime and place of crime, and so long as it can be deemed as a single continuous act, this is not a substantive concurrent act, but a simple one crime is established (see Supreme Court Decision 2002Do2581, Sept. 4, 2002, etc.). This legal doctrine applies likewise to cases where two or more persons jointly commit a single and continuous crime, and one of the offenders has sexual intercourse by taking advantage of the victim’s mental or physical loss or non-competence status, and then another offender has sexual intercourse with the same victim.

The lower court found Defendant B guilty of the facts charged in the instant case that “the Defendants had sexual intercourse with the victim who had the mind of having the victim under the influence of alcohol to have sexual intercourse in sequence with the victim under the influence of alcohol, and had the victim under the influence of alcohol, who had the mental and physical loss or resistance impossible conditions, and had sexual intercourse with the victim under the influence of alcohol, once again, and Defendant B had sexual intercourse with the victim under the influence of alcohol, once again, and Defendant B had sexual intercourse with the victim under the influence of physical and mental loss or resistance impossible conditions,” and deemed Defendant A as a substantive concurrent crime. Defendant A punished by aggravated punishment for concurrent crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes due to the first sexual intercourse (special quasi-rape). Defendant B punished by aggravated punishment for concurrent crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes due to the second sexual intercourse.