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(영문) 서울고등법원 2016.07.08 2016노691
성폭력범죄의처벌등에관한특례법위반(강간등상해)
Text

All appeals by the defendants and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding the facts and legal principles, Defendant A merely had sexual intercourse with the victim under an agreement with the victim, and did not have raped the victim, and the wife suffered by the victim at the time of the crime of rape in this case cannot be deemed as injury in the crime of rape.

Therefore, the judgment of the court below which found Defendant A guilty of rape injury is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

2) The sentence of the lower court’s improper sentencing is too unreasonable.

B. Defendant B (1) misunderstanding of the facts and misapprehension of the legal principles, Defendant B did not have intended to have sexual intercourse with the victim, and even if so, there were such facts.

Even if he ceases to commit a crime by his own, so the attempted rape of this case constitutes an attempted rape.

Therefore, the judgment of the court below which found Defendant B guilty of rape ( disability) is erroneous in matters of law by misunderstanding facts or by misapprehending legal principles, which affected the conclusion of the judgment.

2) The sentence of the lower court’s improper sentencing is too unreasonable.

(c)

(1) According to relevant evidence, such as the misunderstanding of facts, misunderstanding of legal principles, the statement of the victim, and CCTV screen, the Defendants may be found to have implied conspiracy with respect to the instant crime, and the temporal co-operation between Defendant A’s rape and Defendant B’s attempted rape may be recognized.

In addition, as long as there is a joint relationship with the Defendants regarding the crime of rape of this case, even if the victim was injured by the act of Defendant A, the joint criminal defendant B may be held liable for the above injury.

Therefore, the judgment of the court below which acquitted the victim of all of the charges of rape committed jointly by the Defendants, and the charges of attempted rape committed by Defendant B. The court below erred by misapprehending the facts or misapprehending the legal principles.

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