[1] The degree of violence and intimidation in the crime of rape and the criteria for its determination

[2] The timing to commence the crime of rape

[1] In the case of rape, violence or intimidation must be such as to make it impossible or considerably difficult to resist the victim's resistance. Whether the violence or intimidation was likely to make it impossible or considerably difficult to resist the victim's resistance should be determined by taking full account of all the circumstances, including the contents and degree of the assault and intimidation in question, the developments leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of the crime.

[2] The commencement of the crime of rape shall be deemed to be the commencement of violence or intimidation to the extent that it is impossible or considerably difficult to resist the victim to commit a sexual intercourse. In fact, the commencement of the crime of rape shall not be deemed to be the commencement of the crime, even if such violence or intimidation makes it impossible or considerably difficult for the victim to resist.

[1] Article 297 of the Criminal Act / [2] Articles 25 and 297 of the Criminal Act

[1] Supreme Court Decision 88Do1628 delivered on November 8, 198 (Gong1988, 1556), Supreme Court Decision 92Do259 delivered on April 14, 1992 (Gong1992, 164), Supreme Court Decision 99Do519 delivered on April 9, 199 (Gong199, 950), Supreme Court Decision 99Do118 delivered on May 28, 199, Supreme Court Decision 99Do2608 delivered on September 21, 199 (Gong199Ha, 2275) / [2] Supreme Court Decision 90Do607 delivered on May 25, 199 (Gong190, 194, 194)

Defendant

Prosecutor

Attorney Choi In-bok

Seoul High Court Decision 99No3078 delivered on March 2, 2000

The non-guilty part of the judgment below regarding attempted rape shall be reversed, and that part of the case shall be remanded to the Seoul High Court. The prosecutor's remaining appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the attempted rape

A. Of the facts charged in the instant case, the summary of the facts charged regarding attempted rape is that the Defendant, at the beginning of December 1998, tried to have sexual intercourse with his clothes off, with the victim’s arms coming from the victim’s room in order to rape at the victim’s room (the age of 19) at around 02:00 on the first day of 198, with the intention of committing rape, and then divided the victim’s arms into the victim’s body, putting the victim’s arms on the bed, putting the victim’s arms on the bed, breaking the victim’s resistance into the bed, and forced to have sexual intercourse with his bed, but the victim failed to do so with the wind strongly resisted by the victim.

나. 원심판결 이유에 의하면, 원심은 검사 작성의 피해자에 대한 진술조서 중 "피고인이 피해자의 옆에 누워 ' 피해자는 어머니 말을 잘들어 이쁘다'고 말하면서 피해자의 팔을 잡아 일어나지 못하게 한 다음 갑자기 입술을 빨고, 계속하여 저항하는 피해자에게 ' 피해자는 대학생이니까 괜찮다'고 하면서 피해자의 유방과 엉덩이를 만지고 피해자의 팬티를 벗기려고 하여 피해자가 이를 뿌리치고 동생 방으로 건너갔으며, 당시 피고인이 집에 들어올 때부터 얼굴이 빨갛고 혀가 꼬였고 걸음거리도 비틀거려 매우 취한 것으로 보였고, 피해자의 가슴과 엉덩이를 만질 때에는 술주정하는 것으로 생각하였으며, 힘없이 흐느적거리며 만졌기 때문에 피해자가 마음대로 할 수 있었다고 생각하였고, 갑자기 팬티를 벗기려고 하여 너무 놀래 뿌리치고 동생 방으로 건너갔으며, 위와 같은 일이 있었던 이후에도 피고인은 아무 일이 없었던 것처럼 행동하였고 피해자를 포옹한 적이 여러 번 있었다."는 피해자의 진술에 비추어 보면, 피고인은 당시 피해자를 간음할 의사로 피해자의 반항을 억압할 정도의 유형력을 행사하였다고는 볼 수 없고, 오히려 피고인은 술에 만취하여 그러한 정도의 유형력을 행사할 상태에 있지 아니한 사실만이 인정될 뿐이며, 나아가 공소사실에 부합하는 듯한 피해자의 경찰 및 법정에서의 진술은 위 진술기재에 비추어 믿지 아니하고 달리 공소사실에 부합하는 증거가 없다고 하여, 피고인에 대한 강간미수의 공소사실은 범죄의 증명이 없는 경우에 해당한다고 판단하고 있다.

C. In the case of rape, violence or intimidation must be such as to make it impossible or considerably difficult to resist the victim. Whether the violence or intimidation was likely to make it impossible or considerably difficult to resist the victim’s resistance should be determined by comprehensively taking into account all the circumstances, including the contents and degree of the assault and intimidation in question, the developments leading up to exercising tangible power, the relationship with the victim, and the circumstances at the time of the crime (see, e.g., Supreme Court Decisions 99Do519, Apr. 9, 199; 9Do118, May 28, 199; 99Do2608, Sept. 21, 199; 9Do2608, Sept. 21, 199). The judgment of the court below should be determined based on the following facts: (a) whether the assault or intimidation was likely to make it impossible or considerably difficult to resist the victim’s resistance; and (b) whether the assault or intimidation was actually impossible or considerably difficult to implement the assault or intimidation by 198.

D. However, according to the facts acknowledged by the court below, the defendant could not grow up with the arms of the victim who intends to take place in the bed, and the defendant tried to get out of the victim's panty by deceiving the bed and her panty while leaving the bed of the victim who resisted immediately and continuously resisted the bed. If the above facts were to be established, the defendant should be deemed to have commenced the exercise of force to the extent that the victim's resistance may be forced or considerably difficult against the victim's will, and even if the defendant was under the influence of alcohol, he thought that the victim could have been able to resist, or that the victim was bread with the birth of the defendant, even if the defendant was under the influence of alcohol, it is merely that the defendant did not terminate the act of rape because it was impossible or considerably difficult to resist the victim in fact due to the lack of resistance or it does not interfere with the defendant's commencement of the crime of rape.

E. Nevertheless, the lower court’s determination that the charge of attempted rape constitutes a case where there is no proof of a crime on the ground that the Defendant cannot be deemed to have been able to resist or exercise the force to the extent that she could make it impossible or considerably difficult for the victim to resist due to the intoxication of alcohol does not constitute an unlawful act affecting the conclusion of the judgment by misapprehending the legal doctrine on the commencement of the crime of rape. The part of the grounds of appeal assigning this error is with merit.

2. As to the ground of appeal as to the conflict (including the point of night-time conflict)

Examining the reasoning of the judgment below in light of the records, the court below rejected the evidence as stated in the facts charged in the facts charged of the embezzlement on January 21, 1998; March 21; March 21; April 2; December 22 of the same year; January 28, 1999; and January 28, 199; and the defendant's decision of not guilty on the ground that this part of the facts charged constitutes a case where there is no proof of a crime, and there is no violation of the rules of evidence against the rules of evidence and there is no violation of the rules of evidence that affected the conclusion of the judgment. This part of the grounds for appeal cannot be accepted.

3. Therefore, the non-guilty part of the judgment of the court below regarding attempted rape shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the prosecutor's remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating

Justices Lee Yong-woo (Presiding Justice)