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(영문) 서울고등법원 2018.06.29 2017노3703
강간치상등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles (as to the injury caused by rape), the victim was naturally cured without any special treatment, and the defendant was unable to find out that the victim was stroked by the stroke m that the victim sustained injury on the sole basis of the fact that the defendant was stroked by the stroke m without showing the degree of capacity on the stroke m.

The judgment of the court below that found the defendant guilty on this part of the facts charged is erroneous in the misapprehension of facts and legal principles.

B. The sentence of the lower court’s improper sentencing (two years and six months, etc.) is too unreasonable.

(c)

There are special circumstances to exempt the accused from disclosure and notification orders.

2. Determination

A. Determination on the misapprehension of the relevant legal principles and legal principles on the Defendant’s assertion of misunderstanding of facts. 1) In the case of the crime of causing rape or causing harm to the victim’s physical integrity or physiological function, that is, the victim’s health condition is significantly changed and the victim’s life function is hindered, which includes not only physical function but also mental function (see, e.g., Supreme Court Decisions 2007Do3936, May 29, 2008; 201Do7928, Dec. 8, 2011). Accordingly, even in a case where a drug, such as water exemption, causes a temporary or unclear state of the victim’s health due to drugs, if the victim’s health condition was changed and the victim’s life function was hindered, such act constitutes a crime of causing rape or a bodily injury resulting from coercion, even if there was no natural or external disclosure of the victim’s health condition.

In addition, it is not objective and uniformly determined whether the victim suffered such injury, but specific conditions of the victim's body and mind, such as the victim's age, gender, physical strength, etc., type and capacity of drugs.

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