[1] Criteria for determining bodily injury resulting from rape

[2] The case reversing the judgment of the court below that the injured party's wife did not constitute a bodily injury resulting from rape

[1] The reason why the injury resulting from rape is extremely minor and thus, in a case where there is no need for treatment and there is no obstacle in natural recovery and daily life, it does not constitute the injury of the injury resulting from rape. However, such reason is premised on the fact that there is no assault or intimidation that may suppress the victim's resistance, or that the act of sexual intercourse is the same as the injury that may normally occur during his/her daily life, even though there is no assault or intimidation that may suppress the victim's resistance. Thus, if the injury exceeding such degree is caused by the assault or intimidation, the injury shall be deemed to constitute the injury. Whether the victim's health condition is changed to a bad condition and has caused an impediment in his/her living function shall not be determined objectively and uniformly, but shall be determined on the basis of the victim's age, gender, body, and mental and physical condition

[2] The case reversing the judgment of the court below that although a regular medical certificate of injury was not submitted, the body and the contents of the body of the injured party, the degree of the injury or the recovery period, etc., such degree of injury cannot be readily determined that the injured party's physical health condition was changed due to such degree of injury and that the injured party's life function did not constitute injury as defined in the crime of injury resulting from rape

[1] Article 9 of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof, Article 301 of the Criminal Act / [2] Article 9 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, Article 301 of the Criminal

[1] Supreme Court Decision 94Do1311 delivered on November 4, 1994 (Gong1994Ha, 3306), Supreme Court Decision 97Do1725 delivered on September 5, 1997 (Gong1997Ha, 3199), Supreme Court Decision 2003Do2313 Delivered on July 11, 2003 (Gong2003Ha, 1749)

Defendant

Prosecutor

Attorney Park Byung-tae

Seoul High Court Decision 2003No905 delivered on July 10, 2003

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

1. The lower court’s recognition and judgment

The court below stated that the injury in the crime of bodily injury caused by indecent act by compulsion refers to the alteration of the victim's body condition to a poor condition and disability in his life function. Even if there was a change in physical appearance, it cannot be deemed that the injury occurred unless it impedes the physiological function of the body. Since the victim committed an indecent act by the defendant since the investigation agency, he stated that the victim was sexually disturbed and the victim was unable to walk well, and that he did not appear well. The court below determined that the victim's request for treatment cannot be seen as being harming the victim's health condition by stating that the victim's alteration in the treatment form constitutes a violation of the Act on Medical Treatment and Custody, even though it is difficult to view that the victim's treatment form constitutes a complete statement and punishment of the victim's bodily injury, since 10 days after the crime of this case was committed. The court below stated that the victim's request for treatment cannot be seen as a violation of the Act on Medical Treatment and Custody by stating that the victim's treatment form constitutes a complete statement and punishment of injury to the victim's body.

2. The judgment of this Court

It is very minor that there is no need to treat the injury resulting from rape, so it can be said that the injury does not constitute the injury resulting from rape if there is no obstacle in natural healing and daily life.

However, such argument is based on the premise that there is no assault or intimidation that may suppress the victim's resistance in daily life or that it is the same as an injury that may normally occur in sexual intercourse according to an agreement. Thus, if the victim's health condition is changed to a bad condition and the victim's life function is caused by such assault or intimidation, the victim's physical and mental condition should be determined based on the victim's age, gender, physical and mental condition, not on objective and uniform basis, but on the basis of the victim's age, gender, physical and mental condition.

In accordance with the evidence of the record, the victim was a blood relative on the upper part of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body and the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body.

The court below should have tried and judged the victim's physical condition before the victim's crime, the details of visits to each hospital, the specific symptoms and causes, the preparation of a written request for medical treatment, the treatment results, etc.

3. Conclusion

Nevertheless, the judgment of the court below which held that the victim's wife did not constitute injury as provided in the crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. (Rape) did not exhaust all necessary deliberations, or erred by misapprehending the legal principles on injury to rape, thereby affecting the judgment, the prosecutor's ground of appeal, which is the same purport, is justified.

However, the lower court found the Defendant guilty on the part of the bodily injury, and found the Defendant guilty on the ground that there was a relation between the crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. (Rape in Residence) and the crime of a single offense,

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

Justices Lee Hong-hoon (Presiding Justice)