Case concerning whether an attempt of the crime of violation of the Act on Special Cases Concerning the Punishment of Sexual Crimes (bodily injury resulting from rape, etc.) may be recognized〉

【Holding】

Whether the crime of bodily injury resulting from special rape under Article 8(1) of the Act on Special Cases Concerning the Punishment of Sexual Crimes is established not only where the crime of special rape under Article 4(1) of the same Act has been committed but also where the commission of special rape was commenced but ended in an attempt, provided that the victim suffered bodily injury as a result (affirmative) / Whether the current legal doctrine of the Supreme Court denying the establishment of an attempt of the crime of bodily injury resulting from special rape is sound and should be maintained (affirmative)

【Summary of Decision】

[Majority Opinion] In Supreme Court Decision 2007Do10058, decided April 24, 2008, the Supreme Court held, with respect to the crime of bodily injury resulting from special rape prescribed in Article 9 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, which predated the enactment of the Act on Special Cases Concerning the Punishment of Sexual Crimes (hereinafter the "Sexual Violence Punishment Act"), that even if special rape ended in an attempt, the crime of bodily injury resulting from special rape is established if the victim suffered bodily injury as a result; and in Supreme Court Decision 2013Do7138, decided August 22, 2013, it took the same position with respect to the crime of bodily injury resulting from special rape under the former Sexual Violence Punishment Act (before wholly amended by Act No. 11556 on December 18, 2012), whose provisions are identical in form and content to those of the current Sexual Violence Punishment Act.

Under this precedential doctrine (hereinafter the "current doctrine"), the crime of bodily injury resulting from special rape is established not only where the crime of special rape under Article 4(1) of the Sexual Violence Punishment Act has been committed, but also where the commission of special rape was commenced but ended in an attempt, provided that the victim suffered bodily injury as a result. In the latter case, only the completed crime of bodily injury resulting from special rape is established; Article 15 of the Sexual Violence Punishment Act does not apply again so as to establish an attempt of the crime of bodily injury resulting from special rape. This is because the provision in Article 15 of the Sexual Violence Punishment Act punishing attempts of the crime under Article 8(1) applies only to attempts of the crime of bodily injury inflicted in the course of special rape, which is prescribed in Article 8(1) together with the crime of bodily injury resulting from special rape—that is, where a person who committed or attempted special rape, with the intent to inflict bodily injury, attempted to injure the victim but failed—and cannot be regarded as applying to the crime of bodily injury resulting from special rape under Article 8(1).

The current doctrine denying the establishment of an attempt of the crime of bodily injury resulting from special rape is sound and should be maintained. The reasons are as follows.

(A) An attempt refers to a case where the commission of a crime has been commenced but the act has not been completed or the result has not occurred (Article 25(1) of the Criminal Act). If some of the objective elements of the crime are not satisfied, the actor cannot be punished for the completed crime, but may be punished for an attempt where the relevant crime in the Specific Provisions contains a provision punishing attempts (Article 29 of the Criminal Act).

Article 8(1) of the Sexual Violence Punishment Act, which prescribes the crime of bodily injury resulting from special rape, includes as the subject of the crime not only a person who has completed the crime of special rape (Article 4(1) of the Sexual Violence Punishment Act) but also a person who has attempted it (Articles 15 and 4(1) of the Sexual Violence Punishment Act). Since a person who committed attempted special rape satisfies the element concerning the subject of the crime among the elements of the crime of bodily injury resulting from special rape under Article 8(1) of the Sexual Violence Punishment Act, if the victim suffered bodily injury as a result even though the act of special rape was not completed, all the objective elements of the crime of bodily injury resulting from special rape are satisfied, and there is no room for the separate question of whether an attempt (Articles 15 and 8(1) of the Sexual Violence Punishment Act) is established.

(B) Among the result-aggravated crimes prescribed in the Criminal Act and special criminal statutes, those that have a separate provision punishing attempts, such as the crime of bodily injury resulting from special rape, are found only in the legislative form in which a "result-aggravated crime in which the result constituting the aggravating factor is caused by negligence" and a "compound crime in which that result is caused intentionally" are prescribed in a single provision. This can only be viewed as the result of the legislature drafting the provisions concisely and efficiently on the premise that provisions on attempts cannot by their nature apply to result-aggravated crimes, and cannot be regarded as a legislative form intended to recognize attempts of result-aggravated crimes. Therefore, to rely on such provisions to recognize an attempt of a result-aggravated crime and allow mitigation of punishment would be contrary to the substantive intent of the legislature.

The basis for the aggravated punishment of result-aggravated crimes lies in the manifestation of the typical danger inherent in the basic crime. Even if a person who has commenced the commission of the basic crime has not completed the act, if the result constituting the aggravating factor has occurred as a result, the danger inherent in the basic crime has materialized, and punishing this as the completed result-aggravated crime is the natural conclusion consistent with the principle of culpability.

(C) The purpose of enacting the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, in which the crime of bodily injury resulting from special rape was first introduced, was to newly establish or strengthen provisions punishing sexual crimes in order to respond to sexual crimes that were becoming more brutal, collective, sophisticated, and committed by younger offenders. Although the three bills submitted to the National Assembly by its members during the enactment of that Act differed somewhat, they commonly excluded the application of attempt provisions to the crime of bodily injury resulting from special rape. In light of this, it is reasonable to conclude that the legislature intended, as with the crime of bodily injury resulting from rape under the Criminal Act, to punish all cases in which the victim suffered bodily injury as a result of the act of special rape as the completed crime of bodily injury resulting from special rape, regardless of whether the special rape was completed.

(D) If, while conceptually recognizing attempts of result-aggravated crimes, one were to punish as an attempt where there is a separate provision punishing attempts of the result-aggravated crime, and to find the completed result-aggravated crime established where there is no such provision as long as the result constituting the aggravating factor has occurred regardless of whether the basic crime was completed, an imbalance in punishment could arise. The crime of bodily injury resulting from rape under Article 301 of the Criminal Act carries a statutory penalty of imprisonment for life or for not less than five years, and the crime of bodily injury resulting from special rape, which may be regarded as an aggravated form of the crime of bodily injury resulting from rape under the Criminal Act, carries a statutory penalty of imprisonment for life or for not less than ten years. If, where special rape ended in an attempt but the victim suffered bodily injury as a result, the concept of an attempt of the crime of bodily injury resulting from special rape were recognized and statutory mitigation or remission were applied under Article 25(2) or Article 26 of the Criminal Act, the lower limit of the applicable sentencing range would become identical to that of the crime of bodily injury resulting from rape under the Criminal Act, which has no separate provision punishing attempts, and the upper limit would in fact become lower, resulting not only in an inversion of the applicable sentencing ranges but also in the possibility of choosing to remit punishment for voluntary abandonment, thereby causing an imbalance in punishment. Causing such an imbalance in punishment on the ground that it is favorable to the defendant is an interpretation that is rather contrary to justice in criminal law. If it is truly necessary to recognize attempts of result-aggravated crimes, the proper course is to do so through legislation.

(E) If, where the basic crime of a result-aggravated crime ended in an attempt but the result constituting the aggravating factor occurred, this were recognized as an attempt of the result-aggravated crime, then unless the relevant crime in the Specific Provisions prescribing the result-aggravated crime contains a separate provision punishing attempts, it could not be punished as an attempt of the result-aggravated crime under Article 29 of the Criminal Act, and it would be logical to find that an attempt of the basic crime and a negligent crime as to the result are each separately established. However, it cannot be said that the legislature intended such a situation and established provisions punishing attempts for only some of the result-aggravated crimes in the Criminal Act and special criminal statutes.

(F) If the logic that the attempt provisions must be applied to the crime of bodily injury resulting from special rape, a result-aggravated crime, on the ground that there is a difference in the wrongfulness of the act between cases where special rape was completed and cases where it ended in an attempt, were carried through consistently, one could reach the peculiar conclusion that, in the crime of bodily injury inflicted in the course of special rape to which the attempt provision of Article 15 of the Sexual Violence Punishment Act applies, where a person whose special rape ended in an attempt attempted to injure the victim but failed, the attempt provisions must be applied twice because there is a difference not only in the wrongfulness of the result but also in the wrongfulness of the act.

[Dissenting Opinion by Justice Seo Kyung-hwan and Justice Kwon Young-joon] Since Article 15 of the former Sexual Violence Punishment Act (before amended by Act No. 17086 on March 24, 2020) includes Article 8 of the Sexual Violence Punishment Act within its scope of application, an attempt of the crime of bodily injury resulting from special rape under Article 8(1) of the Sexual Violence Punishment Act can be established.

【Referenced Statutes】

Articles 1(1), 15(2), 25, 26, 29, 51, 297, 300, and 301 of the Criminal Act; Article 6(1) (see current Article 4(1) of the Act on Special Cases Concerning the Punishment of Sexual Crimes), Article 9(1) (see current Article 8(1) of the Act on Special Cases Concerning the Punishment of Sexual Crimes), and Article 12 (see current Article 15 of the Act on Special Cases Concerning the Punishment of Sexual Crimes) of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (before amended into the Act on the Protection of Victims of Sexual Crimes pursuant to Article 5(10) of the Addenda to the Act on Special Cases Concerning the Punishment of Sexual Crimes, Act No. 10258, April 15, 2010); Articles 4(1), 8(1), and 14 (see current Article 15) of the former Act on Special Cases Concerning the Punishment of Sexual Crimes (before wholly amended by Act No. 11556 on December 18, 2012); Articles 4(1), 8(1), and 15 of the former Act on Special Cases Concerning the Punishment of Sexual Crimes (before amended by Act No. 17086 on March 24, 2020); Articles 4(1), 8(1), and 15 of the Act on Special Cases Concerning the Punishment of Sexual Crimes

【Referenced Precedents】

Supreme Court Decision 2007Do10058, April 24, 2008 (Gong2008Sang, 815)
Supreme Court Decision 2013Do7138, August 22, 2013

(Source: Supreme Court Decision 2023Do10405, March 20, 2025 (en banc) | Judicial Information Disclosure Portal, Precedents)