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

[2] The case denying the establishment of the crime of injury resulting from rape on the ground that the tangible power exercised at the time of sexual intercourse is beyond the degree against the victim's will and it did not reach the degree where the victim's resistance was significantly

[1] In the case of rape, violence or intimidation must be such a degree as to make it considerably difficult to resist the victim's resistance. Whether the violence or intimidation was significantly difficult to resist the victim's resistance should be determined by considering the following circumstances: (a) the content and degree of the assault and intimidation exercising tangible power; (b) the developments leading up to the exercise of tangible power; (c) the relationship with the victim; and (d) the circumstances at the time of the crime.

[2] The case denying the establishment of the crime of injury resulting from rape on the ground that the tangible power exercised at the time of sexual intercourse is beyond the degree against the victim's will and it did not reach the extent that the victim's resistance was significantly difficult

[1] Article 297 of the Criminal Code / [2] Articles 297 and 301 of the Criminal Code

[1] [2] Supreme Court Decision 92Do259 delivered on April 14, 1992 (Gong1992, 1644) / [1] Supreme Court Decision 88Do1628 delivered on November 8, 198 (Gong198, 1556) 99Do519 delivered on April 9, 199 (Gong199Sang, 950) / [2] Supreme Court Decision 90Do224 delivered on December 11, 1990 (Gong191, 518), Supreme Court Decision 91Do546 delivered on May 28, 1991 (Gong191, 1827)

Defendant

Military prosecutor;

Attorney Jeong Sung-sung

High Military Court Decision 9No160 delivered on May 11, 1999

The appeal is dismissed.

In the case of rape, violence or intimidation must be such an extent as to make it considerably difficult to resist the victim’s resistance. Whether such violence or intimidation was significantly difficult to resist the victim ought to be determined by comprehensively taking account of the following: (a) the content and degree of the relevant assault and intimidation exercising tangible power; (b) the developments leading up to exercising force; (c) the relationship with the victim; and (d) the circumstances at the time of the crime (see Supreme Court Decision 9Do519, Apr. 9, 199).

In the same purport, the court below decided on June 197 that the defendant had sexual intercourse with the victim (the age of 19) by introducing him/her around 23:0 of the same month, and that he/she was locked as the victim's body after drinking alcohol at around 01:0 of the same month, but actively refused the victim's sexual intercourse, and thus, he/she waived sexual intercourse and she did not go against the victim's request for treatment at around 18:0 of the same year. The defendant did not go against the victim's order by taking advantage of the victim's body until he/she got out of the victim's sexual intercourse with the victim's body, and thus, he/she did not go against the victim's order by taking advantage of the circumstances that the defendant was unable to take advantage of the victim's sexual intercourse with the victim's body, and thus, the defendant did not come out of the victim's body until he/she was locked.

Therefore, the appeal is dismissed as per Disposition.

Justices Shin Sung-sung (Presiding Justice)