Minor Rape, etc. (Rape, etc.), Attempted Rape, Intimidation

2010 No. 40 (Joint Attachment Orders)

In the case of the transportation in North Korea at the residential port;

Daegu Seog-gu Busan District Office of Registration

3(Consolidated Judgment) Judgment

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

The request for the attachment order of this case is dismissed.

(a) Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (a)

피고인 겸 피부착명령청구자(이하 '피고인'이라 한다)는 2009 . 7. 18. 14:00경 포항 시 북구 송라면 방석리에 있는 방석 사거리에서 번호를 알 수 없는 자동차를 운전하여 가던 중 그곳을 걸어가고 있던 피해자 윤ㅇㅇ(여, 12세 )을 강간할 것을 마음먹었다.

피고인은 피해자에게 "##중학교 가는 길을 잘 모르겠으니, 자동차를 함께 타고 길 을 가르쳐 달라."라고 말하여 피해자로 하여금 위 자동차에 탑승하게 한 후 ##중학교 에 도착하였다. 피고인은 같은 날 14:20경 그곳에서 피해자에게 집으로 데려다 주겠다 . 며 자동차에서 내리지 못하게 한 후 , 피해자를 태우고 피해자의 주거지인 위 방석리 쪽으로 진행하던 중 , 같은 리에 있는 7번 국도변 '청공간 159' 전신주가 있는 지점에 이 르러, 갑자기 우회전하여 약 15m 진행한 후 그곳 저수지 주변에 자동차를 정차하였다.

The Defendant allowed the victim, who was seated on the back seat of a motor vehicle, to enter the victim's clothes, put his finger into the victim's clothes, cut his breast, and boomed him, and put the victim into a reservoir because he combines the students who fighted against him such as old day with wire ropes. They cannot make any resistance, such as "blaping them into a reservoir with wire ropes................ more than the chief of the blap and the victim's panty and panty panty are exceeded, and the Defendant flaped into the victim's body, and raped the victim one time by inserting the Defendant's sexual flag into the victim's body, and inserting them into the victim's body.

(b) Attempted crimes;

The Defendant, at around 17:00 on August 20, 200, posted a photograph to the victim who was gam in the same rithal distance from August 20, 2009, “Irrrrrh flue to have a glue sexual intercourse,” and 300,000 won.

The Defendant, as seen above, she dried up a photograph on the website of the pest middle school. The Defendant attempted to attack the victim and take money from the frighten victim, but she did not comply with the request and attempted to commit the act.

(c) Intimidation;

Around 17:20 on May 3, 2010, the Defendant threatened the victim by saying, “The victim, at the vicinity of the victim’s house, was at least *** the victim’s home, who was living there.”

2. Judgment of the court below and a summary of the grounds for appeal

A. The judgment of the court below

In light of the following circumstances acknowledged by the evidence adopted, the lower court determined that the instant facts charged are sufficiently recognized, taking into account the credibility of the victim’s statement and the evidence duly adopted and examined in the lower court, including the victim’s statement.

1) At the time of the crime of rape in this case, the victim was a first-year student of the 12-year old middle school, and was able to make a full statement according to his memory, although he was her age, and the statement was also able to make a full statement according to his memory. The name of the defendant's appearance and the name of the victim at the time of

A consistent statement is made to the very old part that is not a person who has actually experienced the yellow and psychological Eastout process, but is unable to make a statement.

2) At the time of committing the crime of rape in this case, the victim stated that the Defendant was suffering from the spanty in the Blue Blue Blue Blue Blue, Malue color, Haym, and Haymin pattern, and that in fact the Defendant was the b

There was a spanty panty with the color of burton and purton.

3) At the time of the crime of rape of this case, the victim stated that the Defendant worn the Red Sea, and supported the statement of the victim, one of three (one of the three (3) registered Red Seas) discovered from the Defendant’s vehicle, and one of them is being used.

4) Since the victim had experienced approximately one week after the date of the crime of rape in this case and received approximately one month medical treatment, the victim at the time of the crime can be found to have suffered mental shock and stress in the extreme degree.

5) The victim consistently states that the Defendant was snowed, the skin was dried, and the head of the Sz type was found in the process of speaking and speaking. This conforms with the Defendant’s characteristic increase.

6) 피해자는 2010. 5. 11.경 학생부장인 고ㅈㄷ가 학교 앞에 주차하고 있던 피고인 을 확인시켰을 때에 바로 피고인을 범인으로 확신하는 태도를 보였으며, 피해자는 이 사건 강간 범행 이후에도 피고인으로부터 2차례에 걸쳐 협박을 당했다는 것이므로, 피

It seems that there is no possibility that the perpetrator may confuse the defendant with another person.

7) Although the victim knew about about 10 months after the victim suffered rape, the victim knew about 10 months from the time she was rape. However, the victim was aware of such fact to his/her family, and the defendant knew about her family members of her family, and the defendant knew about her face of her face to her face with her face of intimidation, and there is no reason to believe that her face of her face of her face to be sufficiently respected and there is no reason to file a false complaint against the defendant.

8) The victim stated the key of the defendant as 170 cm greater than the actual (the defendant stated that his body is 158 cm to 57 cm). However, in addition, it is difficult to expect why the victim who dykes his body to answer the key of adult male who raped himself in the future, and the victim stated that the key of the defendant is less than 171 cm of Kim Farmland (171 cm), which is the students of the school, and this part also conforms to objective facts.

9) A vehicle owned by the Defendant is black. The victim stated that the Defendant’s vehicle was an old white vehicle at the time when the rape was committed. However, according to the Kim Ro’s statement that had been in an internal relationship with the Defendant from around 2007, the Defendant used the Defendant’s vehicle from around the end of 2008, while having been in an independent operation of the Defendant’s old white boom, and at all times, had a red fluort acid at the end of the vehicle at the time when the rape was committed. Therefore, considering that the victim was consistent with the statement that the Defendant would have judged that the vehicle was red fluor at the rear seat of the vehicle at the time when the rape was committed, and the victim was unable to accurately memory the type of the vehicle, it is likely that the Defendant used the Defendant’s vehicle at the time of the rape, notwithstanding the victim’s statement that it was not a vehicle at the time of the crime.

10) According to the result of the communication details inquiry, the Defendant was in the vicinity of the place where the crime was committed on the date of each of the instant crimes.

B. Summary of grounds for appeal

1) Defendant

A) misunderstanding of facts

As stated in the facts charged in this case, the Defendant, like the facts charged in this case, has raped the victim, has to withdraw money, and has not threatened him. Therefore, the lower court erred by misapprehending the facts charged in this case and thereby affecting the conclusion of the judgment.

B) Unreasonable sentencing

The punishment sentenced by the court below (seven years of imprisonment) is too unreasonable.

(ii)a prosecutor;

The sentence sentenced by the court below is too uneasible and unfair.

3. The judgment of this Court

However, we cannot agree with the judgment of the court below that there is sufficient evidence to prove the facts charged of this case for the following reasons.

A. Case progress

According to the evidence duly adopted and examined by the court below and the trial court, the following facts are revealed.

1) According to the victim’s statement, the offender committed rape on July 18, 2009 after burning a motor vehicle, attempted to borrow money on August 20, 2009, and threatened the victim on May 3, 2010.

2 ) 피해자 (1996. 11. 10.생 )는 ##중학교 2학년생이던 2010. 5. 6. 평소 친하게 지내 던 여자 선생님인 김자에게 위와 같은 범행을 당하였다고 말한 후 자술서 (증거기록 8쪽 )를 작성하였는데, 그 자술서에 "범인은 나이가 40세 정도이고, 눈이 좀 안 보이고 (작다), 피부는 까무잡잡하고, 말을 할 때는 눈이 처졌다. 범인은 2010. 5. 3.에는 안경 을 착용하고 있었다. 범인의 차 색깔은 첫날에는 하얀색이고 옛날 차였고 지금쯤은 좀 고급스럽고 파란색 차이다. "라고 기재하였다.

김 농지는 ## 중학교 학생부장 고ㅈㄷ에게 위와 같은 내용을 보고한 후 , 피해자가 작

I sent a sexually accepted self-written statement.

3) On May 11, 2010, around 16:35, 2010, the Defendant parked a car for 16:35 Machip 7060 in front of Machip Machip Machip, and was seated in a vehicle. The notice was considered to be similar to the offender’s appearance and the Defendant’s appearance, which was known by the victim during driving and leaving the vehicle at that time, while driving and leaving the vehicle, and became aware of the offender’s appearance and the Defendant’s appearance were similar. Accordingly, the Defendant contacted the Kim farmer to check whether the Defendant was the offender.

김지는 그날 16:44경 피해자를 자동차 뒷좌석에 태워서 피고인의 자동차 옆을 지 나갔는데, 피해자는 피고인을 보고서 범인이 맞다고 말하였다. 이에 고ㅈㄷ는 피고인을 경찰에 곧바로 신고하였다.

4) 피해자는 2010 . 5. 12 . 14:00경 경찰에서 범인의 인상착의에 대하여 "웃는 인상 이고, 눈이 작고, 피부는 까맣고, 키는 170㎝ 정도이고, 머리 모양은 곱슬머리는 아니 고 스포츠 모양이다."라고 진술하였고, 경찰은 피해자에게 피고인의 사진 1장 (증거기록 39쪽 )을 보여 주면서 범인이 맞는지 확인하였는데, 피해자는 사진상의 인물이 범인이 맞다고 진술하였다(증거 기록 28쪽 ).

On May 12, 2010, the police arrested the defendant for an urgent arrest on the charge of the crime, such as the charge of this case, around 17:55.

5) 경찰은 2010. 5. 12 . 피고인의 전신 및 반신 사진 각 1장(증거기록 97 , 98쪽 ) 을 촬영한 후 , 2010. 5. 13. 고ㅈㄷ를 통하여 피해자로 하여금 사진상의 인물이 범인이 맞 는지 확인하게 하였는데, 피해자는 그 사진상의 인물이 범인이 맞다고 말하였다( 증거기 록 96쪽).

6) The Defendant is 158cc., 57cc., weight, and 57cc., and does not wear a horn. An automobile owned by the Defendant is a car with 0917060 color chip and Gyeongbuk 81du 4537 white blick.

피해자는 이 사건 공소사실과 같은 범행을 당할 당시 포항시 북구 송라면 방석리 *** 에 살았고, 피고인은 같은 리 ## # 에 살았다 .

B. Determination

1) Legal principles

A witness’s statement in a criminal identification procedure based on the appearance, etc. of the suspect makes the suspect identify himself/herself or by presenting only one photograph of the suspect to the witness, unless there are any additional circumstances such as whether the suspect has been aware of the suspect in the previous criminal identification procedure or not, in addition to the victim’s statement, there is another circumstance to suspect him/her as the criminal in addition to the victim’s statement, unless there are any additional circumstances such as: (a) the limits of human memory and inaccuracy; and (b) the possibility that the suspect or the person on his/her photograph are suspected of being the criminal under the specific circumstances; and (c) the suspect’s statement in a criminal identification procedure is likely to cause the suspect to be the criminal.

It should be deemed that ice is low (see, e.g., Supreme Court Decision 2007Do5201, Jan. 17, 2008).

2) Details and process of the Defendant’s land category as an offender

가) 고지는 범인을 직접 목격하였던 것이 아니라 피해자가 작성한 자술서를 통 하여 범인의 인상착의를 알고 있었을 뿐이다. 피해자가 작성한 자술서에는 범인의 인 상착의가 "눈이 좀 안 보이고(작다), 피부는 까무잡잡하고, 말을 할 때는 눈이 처졌다." 고 기재되어 있는데, 그와 같은 기재만을 보고서 고지가범인을 정확히 식별한다는 것은 쉬운 일이 아니다. 더구나 고지는 자동차를 운행하면서 불과 약 1초 정도밖에 피고인을 보지 못했다(고ㅈㄷ의 당심 법정 진술).

나 ) 피해자는 2010. 5. 11. 김 농지를 통하여 고ㅈㄷ로부터 피고인이 범인이 맞는 지 확인해 보라는 말을 듣고서, 피고인을 본 후 범인이 맞다고 말하였다.

However, the injured party only passed after standing on the rear seat of a motor vehicle in operation, and only the accused.

Only once seen.

피해자는 강간 범행, 공갈미수 범행, 협박 범행 당시 세 번에 걸쳐서 범인을 보았 다고는 하나, 피해자가 2010. 5. 11. 피고인을 위와 같이 본 것은 각 범행일로부터 9개 월 , 8개월, 8일이 지난 후였다. 그 중 피해자가 2010. 5. 3. 협박 범행 당시 범인을 본 것은 8일 전으로서 비교적 최근이기는 하지만, 그 당시 피해자는 범인의 얼굴을 제대 로 쳐다보지 않았을 뿐만 아니라(피해자의 당심 법정 진술), 그 당시에는 범인이 안경 을 착용하고 있었던 반면 (증거기록 8쪽), 피해자와 고지가2010. 5. 11. 피고인을 보 았을 당시에는 피고인이 안경을 착용하고 있지 않았으므로(고ㅈㄷ의 당심 법정 진술), 그 범인이 피고인이 맞는지 정확히 식별하는 것은 쉽지 않았던 것으로 보인다.

C) The victim subsequently stated at the police that the Defendant’s photograph was the victim’s photograph, and then that the photograph was the victim’s photograph.

However, at that time, the police showed not only a copy of the photograph of the defendant, but also a copy of the photograph of the defendant.

In addition to the above photograph of the defendant in the investigative agency, the victim did not have any way to confirm whether the defendant was a criminal (the victim's legal statement at the trial court) and did not have any way to see whether the defendant was a criminal (the victim's trial record 102, 106 pages).

D) In light of the process, process, method, etc. of the criminal identification procedure as seen above, the possibility that the victim’s statement that the criminal defendant is an offender was made with an ambiguous cancer that the human body on the defendant or his/her photograph is suspected of being the criminal under the specific circumstances, such as the limitation of human memory and inaccurateness, cannot be ruled out, and its credibility is doubtful.

3) The defendant's appearance, etc.

A) The victim stated that “the eye shows the appearance of the offender(s)” with regard to the appearance of the offender, the skin was flick, and the eye was flick when the victim speaks.” However, there is room to view that the victim’s appearance of the offender and the Defendant’s appearance are similar. However, it is insufficient to readily conclude that the Defendant is a criminal offender.

나) 피해자는 처음 작성한 자술서에 2010. 5. 3. 협박 범행 당시 범인이 안경을 착용하고 있었다고 기재하였는데 (증거기록 8쪽), 고ㅈㄷ와 피해자가 2010. 5. 11. 피고 인을 보았을 당시 피고인은 안경을 착용하고 있지 않았고(고ㅈㄷ의 당심 법정 진술), 경찰이 피해자에게 보여 준 사진상으로도 피고인은 안경을 착용하고 있지 않았으며, 현재도 피고인은 안경을 착용하고 있지 않다.

C) The victim was 170cm in the height of the offender and 170cm in knife in knife in knife in knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife (k).

However, the Defendant’s height is a considerably small size of 158cm in male, and 13cm or smaller than 13cm in Kim Jong-su, and the Defendant’s height in the court of first instance is compared with one fishing vessel with one fishing vessel, and as a result, the Defendant’s height does not reach only the upper part of Kim Gung-su, which is the Defendant’s height, and is considerably distorted. However, the Defendant’s body is difficult to accurately memory the key of the adult male who raped himself as a first-year student in the school of the same year as at the time of committing the rape of this case.

Even considering B, it is difficult to believe that the victim's statement that the defendant is a criminal is hotly believed.

D) At the time of the crime of rape on July 18, 2009, the victim made a statement that he was suffering from the spanty in Blue chrode and the spanty in Blue spanish and the spanty pattern in Blue color (Evidence Record 31 pages), and the police found on May 13, 2010 that there is room to regard the victim as similar to the offender’s panty between the Defendant’s half- and panty at the Defendant’s home (Evidence Record 99-106 pages).

However, it is not a unique pattern or color that clearly distinguish between the victim's counterbath and the panty of the offender, but the victim was raped.

Since there is room to see that the victim's statement is similar to the criminal's statement among multiple counter-definites of the defendant after nine months from the date, it is difficult to see that the defendant supports the statement of the victim as the criminal.

In addition, the victim is against the defendant's counter-fame and the private panty yarn confirmed and taken by the police as above.

He reported the truth, and stated that he was suffering from rape at the time of the crime (Evidence Record 99 pages).

E) At the time of the crime of rape on July 18, 2009, the victim stated that the Defendant worn the sea sea, and on May 12, 2010, the police discovered two of the two of the two of the two of the two of the two of the two of the two of the two of the two of the two of the two. The victim confirmed that there was no one of the three of the three of the one of the three of the one of the three of the two (the evidence record 63-66).

However, it is difficult to view that the defendant supported the victim's statement that he/she was the criminal, on the ground that the victim was raped, and nine months have passed since the victim was rapeed.

In addition, there is no evidence to acknowledge that the red sea and the mixed sea used by the defendant at the time of rape are the same.

F) At the time of rape, the victim stated that the vehicle of the offender was a white car, and that the size of the Aburged car was similar to the size of the Aburg-lurg-turg-turg-turg-turg-turg-turg-turg-turg-turg-turg-turged vehicle (Evidence No. 29, 31,

First of all, the victim's motor vehicle and the motor vehicle owned by the defendant 09* 70* Hoho New Airport and Gyeongbuk 81du 45* * The victim's two motor vehicles photographs owned by the defendant (Evidence No. 60, 61, 62 pages) are different in its kind and color, and the victim also is an offender of the above two vehicles photographs owned by the defendant.

It is clear that the two motor vehicles owned by the defendant are not the motor vehicle of the victim, and in particular, they are not the motor vehicle of the victim.

Since around 2007, there is room to see Kim Crun who had a relationship with the Defendant as similar to the Defendant’s criminal stated in the victim’s 62°73* white Amburged car (Evidence No. 295-298 pages). The fact that Kim Maok had a scar in the instant car by carrying a scar in the red chropoch pattern (Evidence No. 291, 292 pages of evidence record).

However, in 2008, Kim Hel stated that the defendant had not been able to borrow a motor vehicle from the defendant, while residing in Cheongsong-gun and living in Cheongsong-gun, and that he was only able to talk with the defendant (Evidence No. 292, 160-6280-*** of the defendant (portable telephone number No. 01-9857-**) was Kim Hel- (portable telephone number No. 01-9857-**) on July 9, 2009 and that there was no phone call on July 18, 2009 or immediately before that (Evidence No. 160, 161).

Therefore, on July 18, 2009, the possibility that the defendant lent and used a white flive motor vehicle of Kim Jong-so in which the victim was raped. In addition, the crime at the time of rape was committed.

Even if there was a window-fluored red fluor on a passenger car, according to the fact-finding statement by Kim Jong-chul, it does not always have a fluorred red fluor on a passenger car by Kim Jong-chul, and there is no evidence to acknowledge that two fluor is the same fluor, and therefore, it cannot be readily concluded that the victim’s vehicle used by his criminal fluor is a car of Kim Jong-ok.

Moreover, the victim clearly stated that the victim is not a passenger car of the offender at the time of rape (Evidence Record 295-298) in the white Aflurged car (Evidence Record 295-298) of Kimok.

4) Defendant’s Alba, etc.

A) At around 14:00 on July 18, 2009, the injured party: (a) committed rape after hanging on a motor vehicle within a master’s degree distance located in the room in the room, and attempted to borrow money at the same place on August 20, 2009; (b) around 17:00 on May 30, 2010, the injured party sent back to the north-gu Sinpo-si in the port of Mapo-si ** (in the place nearest to the place where the injured party was his/her house in question).

B) According to the monetary records inquiry council, if the defendant sent back from 566 to 17:00 on August 20, 2009 to 10:18 on July 18, 2009, the defendant was from 566 to 566 to 17:00 on August 20, 200, from 7:17:12 on May 3, 2010 to 78-1 to 78-1 on the Nam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-si, Mapo-ri, Mapo-ri, 566 on the same day if the defendant sent back from Mapo-gu, North-si, Mapo-si, Mapo

It is confirmed that the currency has been made (Evidence No. 161, 169, 202 pages).

다 ) 우선 피고인의 주거나 생활근거지가 포항시 북구 송라면 방석리 ###으로서 피해자가 범행을 당하였다는 장소 인근이었으므로, 피고인이 그 범행일시 무렵에 범행 장소 인근에 있었다고 하여, 그것만으로 피고인이 범인이라고 단정하기에는 부족하다.

라) 오히려 피고인은 2009. 8. 20. 17:00경 포항시 북구 송라면 방석리 ###에서 전화 통화를 하고 있었으므로, 같은 시간에 포항시 북구 송라면 방석리에 있는 방석사 거리에서 피해자로부터 돈을 갈취하려고 한 범인은 피고인이 아닐 가능성을 배제할 수 없다.

In addition, the Defendant was making a telephone call at around 17:12 on May 3, 2010, the Defendant was making a call at 78-1, the Nam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-do. However, the Defendant could not be ruled out when the Defendant was a criminal who threatened the victim at around 8:20 on May 3, 201, because the distance from **** because the distance was approximately approximately approximately 24.42 km and takes approximately 33 minutes in cars (in January 13, 201, reference materials submitted by his defense counsel). As such, from the time when the Defendant made a telephone call to 8:0 on May 3, 2010, which was 8:20 on May 3, 2010.

5) The symptoms of the victim after being subject to the crime

On July 25, 2009, after seven days from the day when the victim was raped, the victim was treated for one month in Han Council, and the cause of such symptoms was found to have been mental shock or stress (Evidence Records 18, 19 pages).

However, the victim did not have sexual intercourse before being raped. However, in light of the fact that the victim did not have sexual intercourse before being raped, and that she did not either her mother or her mother was informed of her father and her hospital, or that she did not have any ties between her mother and her father and her hospital (Evidence No. 278, 279 of the Evidence No. 278, and the victim’s oral statement at the trial), it cannot be readily concluded that the victim had such symptoms and that she was sexual intercoursed by around that time. It is difficult to deem that the victim supported the victim’s statement that she was the Defendant.

4. Conclusion

In full view of the circumstances seen earlier, such as the process and method of the victim’s classification of the Defendant as the offender, the difference between the offender and the Defendant’s appearance, and the Defendant’s know-how, etc., the victim, not the Defendant, may have been aware of the crime identical to the instant facts charged and made a statement by the Defendant at the time of committing the same time as the instant facts charged. As such, the victim’s statement that the Defendant is the offender, cannot be said to be deemed to have credibility enough to exclude a reasonable doubt, and other evidence submitted by the prosecutor alone is insufficient to acknowledge the instant facts charged.

Therefore, among the judgment of the court below that there is sufficient evidence to prove the facts charged of this case, the part of the defendant's case which affected the conclusion of the judgment, and accordingly, the part of the order to attach among the judgment below cannot be maintained.

Therefore, the judgment of the court below is entirely reversed in accordance with Article 364 (6) of the Criminal Procedure Act and Article 35 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, and the following judgments are reviewed after pleading.

The summary of the facts charged in the instant case is as seen earlier. This constitutes a light concern with no proof of facts constituting a crime, and thus, a not-guilty verdict is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced under Article 58(2) of

Furthermore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)2 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders, since the judgment of not guilty was rendered.

Rapped money exchange

Senior Security Officer;