(a) Requirements for an attempted suspension;

(b) The case holding that the crime of rape is attempted to be suspended at the request of the victim that he would be able to respond to the following delivery or termination:

A. If an act of commission of a crime commences and the act of commission of a crime is suspended at one’s own free will before the crime is completed, it constitutes an attempted crime unless the suspension by a person appears to be an attempted crime due to interference with the generally accepted social norms.

B. If the defendant tried to rape the victim at a time after the victim's request was made to the effect that he would be able to respond to the victim's satisfaction with the victim's right at a time following the victim's occurrence, and the defendant did not achieve his objective, and then left the victim's house, the defendant's request to the effect that he would stop rape with the victim, and will respond to the victim's satisfaction with the victim's right after the victim's occurrence is considered as an obstacle to the execution of the crime by social norms, and thus the defendant's act constitutes an attempted suspension.

(b)Article 26 of the Criminal Code;

A. Supreme Court Decision 85Do2002 delivered on November 12, 1985 (Gong1986,91). Supreme Court Decision 92Do917 delivered on July 28, 1992 (Gong1992, 2696) 93Do347 delivered on April 13, 1993 (Gong193Sang, 1431)

Defendant

Defendant

Attorney Kim Yong-ok

Busan High Court Decision 93No181 delivered on June 10, 1993

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. Comprehensively considering the evidence of the court of first instance maintained by the court below, it can be sufficiently recognized that the defendant committed an assault as stated in the judgment of the court of first instance with the intent to rape the victim as stated in the judgment of the court of first instance, but the victim attempted to commit rape at the same time, and that the victim would be able to respond to rape at the next time, and there is no violation of the rules of evidence, such as the theory of litigation, or of mistake of facts due to insufficient deliberation. The arguments are groundless.

2. In a case where an act of commission of a crime commences and the act of commission of a crime is suspended at one’s own free will before the crime is completed, if the suspension by the person appears to be an attempted crime due to interference with the general social norms, it constitutes an attempted crime (see Supreme Court Decision 85Do2002 delivered on November 12, 1985).

According to the facts found by the court of first instance maintained by the court below, the defendant was unable to achieve his purpose by a simple request to the effect that the victim would accept the victim's sexual intercourse at the next time. According to the records, the defendant brought the victim into the house by his own vehicle. According to the above facts, the defendant's request to the effect that he voluntarily suspended rape against the victim, and that the victim would accept the victim's sexual intercourse after his friendship is not considered as an obstacle to the execution of crime under social norms. Thus, the defendant's act in this case constitutes a attempted suspension.

Nevertheless, the court below affirmed and maintained the judgment of the court of first instance which rejected the defendant as an attempted crime, which affected the conclusion of the judgment by misunderstanding the legal principles as to the attempted crime of suspension. Therefore, the arguments pointing this out are with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)