In a case where it is not recognized that rape was committed in relation to the facts charged of violating the Act on the Punishment of Sexual Crimes and the Protection of Victims, if it is recognized that the facts of injury were committed, whether the court's measures which were not punished for the crime of bodily injury

Although rape is not recognized as a result of deliberation on the crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, it cannot be deemed that the failure to punish the crime of injury is obviously contrary to justice and equity, unless there is any change in indictment, even though it is recognized as an injury.

Article 9(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof, Article 298 of the Criminal Procedure Act

Supreme Court Decision 94Do1684 delivered on February 23, 1996 (Gong1996Sang, 1169) Supreme Court Decision 96Do755 delivered on May 10, 1996 (Gong1996Ha, 1952)

Defendant

Defendant and Prosecutor

Attorney Han Han-hoon

Seoul High Court Decision 97No153 delivered on May 17, 1997

All appeals are dismissed.

1. We examine the defendant and state appointed defense counsel's grounds for appeal.

In light of the records, the court below's decision that found the defendant guilty of each crime in violation of the Punishment of Violences, etc. Act against the defendant by integrating the adopted evidence, is just and acceptable, and there is no violation of the rules of evidence or misconception of facts due to insufficient deliberation, as alleged in the ground of appeal.

The assertion is without merit because it is erroneous for the court below to establish evidence and to find facts which belong to the exclusive jurisdiction of the court below, or it is a tree from another opinion than the court below.

In addition, in this case where a sentence of less than 10 years of imprisonment is imposed, the reason that the sentencing of the court below is heavier is not a legitimate ground for appeal.

2. We examine the Prosecutor’s grounds of appeal.

The court below sentenced the defendant not guilty of the violation of Article 9 (1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims, on the grounds as stated in its reasoning. In light of the records, the court below's measures are just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles on the crime of extortion, as alleged in the grounds of appeal.

In addition, even though rape is not recognized after the court below deliberated on the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, it does not seem that the crime of bodily injury does not constitute a violation of justice and equity, unless there is any change in indictment, even though it is recognized that the crime of bodily injury is not punishable (see Supreme Court Decision 93Do3058 delivered on December 28, 1993, Supreme Court Decision 94Do1684 delivered on February 23, 1996), and there is no error of omission of judgment as alleged in the ground of appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)