Whether the act of rape constitutes a crime of adultery separately in addition to the crime of rape (negative)

In light of the fact that the crime of adultery is a hostile crime requiring a necessary accomplice, the crime of adultery is established when there is a mutual agreement between the actors. If one of the actors does not have an intention of sexual intercourse, such as rape, quasi-rape, etc., it is difficult to view that the crime of adultery against the defendant, who is the male father, was committed by the rape of the defendant, and even if there is no agreement between the other party on sexual intercourse, it does not constitute a separate crime of adultery as well as the other party.

Article 241(1) of the Criminal Act

Defendant 1 and one other

Defendant 1 shall be punished by imprisonment with prison labor for three years and by imprisonment for ten months.

With respect to Defendant 1, 175 days out of the number of detention days prior to the rendering of a judgment shall be included in the above sentence.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for a period of two years from the date this judgment becomes final and conclusive.

1. Defendant 1

A. A person who completed the marriage report on September 14, 1981 by marriage with Nonindicted 3 on September 14, 1981; Defendant 2

(1) At around 02:00 on August 4, 1990, in the vicinity of the access road to the highway in Seocho-gu Seoul Metropolitan Government Yang Jae-gu, Seoul, on a single occasion, from the bank room in the vicinity of the access road to the highway (house tent).

(2) around 15:00 on the 10th day of the same month, at around 15:00, the female heading room in the stude and flue room in Gangdong-gu Seoul Metropolitan Government, Gangdong-gu;

(iii)on the date 01:00 on the second day of the same month, 01:0, at the same time, sexual intercourses with the inside room of a woman on the ground of the Round in Songpa-gu Seoul Metropolitan Government Pung-dong Maak-dong Maak-si;

(4) At around September 21:00 of the first 21:00 of the same year, the Defendant 2, who is located in the Seocho-gu Seoul Metropolitan Government Yang Jae-dong ( Address omitted), shall enter the Republic of Korea once at the house;

(5) 1 November 24, 21:00 of the same year; and

(6) 22:00 on the date of the lower order of the same month, one time at the same place; and

(7) At around 10:00 on July 17, 1991, once sexual intercourse at the same place; and

(8) 23. 00:00 per month, one time at the same place; and

(9) 24 00:00 per month, one time at the same place; and

(10) At around 22:00 on July 29, 1991, 10 single sexual intercourse at the same place, and 10 combined Does;

B. From November 24, 190 to July 30, 1991, when Defendant 2 was living together with Defendant 2's house with the knowledge of Defendant 2 on August 24, 1990, after settling the living together on July 30, 1991, Defendant 2 demanded repayment of debts from Defendant 2, and the complaint was filed due to marriage ice, etc. on September 2, 1991, Defendant 2 shall take into account the relationship between Defendant 2 and the debt. At around 22:30 of the same day, Defendant 2 suffered from rape of Defendant 2 on September 3, 199, Defendant 2 exceeded the body of Defendant 2, Defendant 2, Defendant 2, Defendant 2, Defendant 1, Defendant 2, Defendant 2, Defendant 3, Defendant 1, Defendant 1, Defendant 2, 3, Defendant 1, 3, Defendant 1, 3, Defendant 1, 2, and Defendant 1, 3, Defendant she was forced to resist and she to resist her.

2. Defendant 2 knew that Defendant 1 is the father-Nam, and even as described in the above paragraph 1-A, Defendant 1 and Defendant 1 conspired 10 times with each other, respectively.

The facts No. 1-B of the ruling

1. Statements corresponding thereto by Defendant 1 in the first trial records;

1. Statements corresponding thereto made by Defendant 2 in the second trial records;

1. Each protocol of examination of suspect as to Defendant 1 prepared by the public prosecutor, containing some statements corresponding thereto;

1. Each statement corresponding thereto among the statements made by a public prosecutor and the defendant 2 in the preparation of an assistant judicial police officer;

1. At least one point (No. 1) as seized, and at least one panty (No. 2) as one panty;

1. In full view of the description that corresponds to the part and degree of the injury as indicated in the judgment among the written diagnosis of injury against Defendant 2 in the preparation of the doctor, it may be recognized as a whole;

each fact of No. 1-A and No. 2

1. Statements corresponding thereto by Defendant 1 in the fifth trial records and each statement corresponding thereto by Defendant 2;

1. Each statement corresponding to the witness 1 and 3 in the sixth trial record;

1. Each statement corresponding to the interrogation protocol of Defendant 1 prepared by the public prosecutor;

1. Each statement of the suspect interrogation protocol prepared by the public prosecutor as to Defendant 2, which corresponds thereto;

1. Statement made by the prosecutor with respect to Nonindicted 1’s written statement (excluding the part on which Nonindicted 2’s statement was written) corresponding thereto

1. Statement corresponding to the statement of Nonindicted 3 in preparation of a judicial police assistant;

1. The facts of the judgment can be recognized in full view of the records that correspond to the facts of the marital relationship in the family register prepared by the head of the Busan Central District Government.

Articles 301 and 297 of the Criminal Act (the point of injury resulting from rape of Defendant 1, the choice of limited imprisonment), Article 241(1) of the Criminal Act (the points of communication among the defendants), the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (the punishment prescribed in the crime of injury resulting from rape in relation to rape in relation to Defendant 1, and the punishment prescribed in the crime of injury resulting from rape in relation to Defendant 2)

Defendant 1: Articles 53, 55(1)3, and 57 of the Criminal Act

Defendant 2: Article 62(1) of the Criminal Act

Of the facts charged in this case against Defendant 1, it is viewed that the above Defendant passed through a single sexual intercourse with Defendant 2 on September 2, 1991 at the Yang Jae-dong, Seocho-gu, Seoul, Yang Jae-dong, Yang Jae-gu, Seoul at around 23:00 on September 2, 1991.

In light of the fact that the crime of adultery is a hostile crime requiring a necessary accomplice, the crime of adultery is established when there is a mutual agreement between the actors. If one of the actors does not have an intention of sexual intercourse, such as rape and quasi-rape, it is difficult to deem that the crime of adultery is established against the perpetrator who has an intention of sexual intercourse. Therefore, as seen in the part 1-B of the judgment above, insofar as the sexual intercourse under the above facts charged was committed by the rape of the defendant, and there is no agreement between the defendant 2 and the defendant 1, it does not constitute a separate crime as well as in the case of defendant 2, and therefore, the above facts charged are not guilty pursuant to the former part of Article 325 of the Criminal Act because it does not constitute a crime. However, as long as it is found in the judgment that there is a relation of sexual intercourse with the above facts charged, it does not constitute a separate crime of adultery in the disposition of innocence.

It is so decided as per Disposition for the above reasons.

Justices Kim Dong-dong (Presiding Justice)