Whether the relationship between shesheshesheshesheshesheshes and shesheshesheshesheshes constitutes a relative by marriage within the fourth degree as stipulated in Article 5(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

Article 5(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides that “If a person related to a relative commits a crime under Article 299 of the Criminal Act against a person related to the relative, the person shall be punished in accordance with the example of paragraph (1) or (2).” Article 769 of the same Act provides that “If a person related to the relative commits rape by violence or intimidation, the person related to the relative shall be punished by imprisonment for a fixed term of at least seven years.” Article 767(4) of the same Act provides that “The scope of relatives of paragraphs (1) through (3) shall be relatives within the fourth degree of relationship with the relative, relatives and relatives living together.” Meanwhile, Article 767 of the Civil Act provides that “the spouse, relatives of the spouse, relatives of the spouse, and the spouse of relatives of the relative shall be punished by marriage within the fourth degree of relationship with the relative, the spouse of the relative relative shall be punished by marriage within the fourth degree of relationship with the relative.”

Article 5(1), (3), and (4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 299 of the Criminal Act; Articles 767, 769, and 771 of the Civil Act

Defendant

Defendant

Attorney Kim Yoon-jin

Suwon District Court Decision 2020No166 Decided July 16, 2020

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 5(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides that “If a person related to a relative commits a crime under Article 299 of the Criminal Act against a person related to the relative, the person shall be punished in accordance with the examples of paragraph (1) or (2).” Article 769 of the same Act provides that “If a person related to the relative commits a crime by violence or intimidation, he/she shall be punished by imprisonment for not less than seven years.” Article 767 of the same Act provides that “The scope of relatives from paragraphs (1) through (3) shall be relatives within the fourth degree of relationship and relatives living together with the fourth degree of relationship.” Meanwhile, Article 767 of the Civil Act provides that “spouse, blood relatives and relatives shall be relatives.” Article 769 of the same Act provides that “the spouse of a blood relative, spouse of a blood relative, and spouse of a blood relative shall be relatives within the fourth degree of relationship with the relative, the spouse of a blood relative shall be punished of the relative.”

According to the records, the defendant and the non-indicted (the mother of the victim) are the married couple who completed the marriage report, and the victim is recognized as having been married between the former husband and the non-indicted. Thus, the defendant constitutes a relative (the relative within the fourth degree) provided for in Article 5(4) of the Sexual Violence Punishment Act against the victim. Therefore, Article 5(3) of the Sexual Violence Punishment Act shall apply to the defendant's quasi-rape of the victim. Contrary to the allegations in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on relatives as provided in Article 5(3) and (4) of the Sexual Violence Punishment Act, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment by exceeding the bounds

2. Based on its stated reasoning, the lower court upheld the first instance judgment convicting of the instant facts charged. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the crime of quasi-rape in violation of the Sexual Violence Punishment Act (rape in relation

3. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed. In this case where a more minor sentence is imposed on the Defendant, the argument that the sentence is too unreasonable cannot be a legitimate ground for appeal.

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

Justices Lee Ki-taik (Presiding Justice)