Whether the crime of rape is established in the case of sexual intercourse with a female under the age of 13 without violence or intimidation

When a female under the age of 13 has sexual intercourse, the crime of rape is established without the need for violence and intimidation.

Articles 305, 301, and 297 of the Criminal Act

Supreme Court Decision 75Do855 delivered on May 13, 1975 (Article 305 (1) 1332 of the Criminal Act, the Court Gazette 518No8545 delivered on May 13, 197

Defendant

Defendant

Seoul Criminal Court of the first instance (72 Gohap782)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

sixty days from the detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for five years after the judgment became final and conclusive.

The summary of the grounds for appeal by the defendant is that the court below erred by misunderstanding the facts affecting the judgment, and that the amount of punishment imposed by the court below against the defendant is too unreasonable, because the defendant did not use the means of violence or intimidation at the time of the instant case, but even though he had been able to know that it had been sexually committed with the victim, the court below recognized the defendant as the crime of causing rape.

Therefore, the first ground for appeal is examined as to the first ground for appeal, and when a female under the age of 13 has sexual intercourse, it is clear that the crime of rape is established without requiring violence or intimidation under Article 305 of the Criminal Act. Therefore, the above ground for appeal cannot be accepted. The second ground for appeal is examined as to the second ground for appeal in light of various circumstances such as the defendant's age, character and conduct, environment, motive, means, consequence, circumstance after the crime, etc., and the judgment of the court below against the defendant is too unreasonable. Therefore, the defendant's appeal is reasonable in this regard, and therefore, the judgment of the court below cannot be reversed.

Therefore, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the members thereof shall be decided again.

(Criminal Facts and Summary of Evidence)

The summary of the criminal facts of the defendant recognized as a party member and the summary of the evidence is as shown in each corresponding case of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

(Application of Acts and subordinate statutes)

The court below's decision falls under Articles 305, 301, and 297 of the Criminal Act, and therefore, the defendant shall be punished by imprisonment for three years within the scope of the term of punishment reduced by discretionary reduction under Articles 53 and 55 (1) 3 of the same Act in consideration of the defendant's circumstances. In accordance with Article 57 of the same Act, the defendant shall be punished by imprisonment for 60 days within the term of imprisonment prior to the declaration of the judgment of the court below. However, the defendant is the first offender, and the defendant shall be deemed to have a significant reason for consideration in light of the circumstances, such as the fact that he is infinite and infinite, and the fact that he is deemed to have a significant intention to repent, so the execution of the above sentence shall be suspended for 5 years from the date the judgment became final and conclusive under Article 62

It is so decided as per Disposition.

Judges Cho Young-dong (Presiding Judge)