At around 00:00 on November 7, 2015, the Defendant: (a) deemed the victim F (a) who was first considered to be in front of the E calendar elevator located in Yeongdeungpo-gu Seoul Metropolitan Government, as drunk, was drunk and was seated on the floor; and (b) took the victim into custody on November 7, 2015, around 01:07, the Defendant sexual intercourse with the victim by taking advantage of the victim’s failure to resist, which could not have a mental health.

2. Summary of the defendant and his defense counsel

The victim had the ability to make a decision at the time of the sex relationship, but did not have been in the state of mental disorder or failing to resist properly, and the defendant thought that there was clear awareness of the victim, such as how to divide several conversations with the victim up to the sex relationship, and there was no intention of quasi-rape, and the sex relationship was achieved under mutual agreement.

3. Determination

A. The establishment of facts constituting an offense ought to be based on strict evidence with probative value, which leads a judge to have the degree of having no reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent of ensuring such conviction, even if there are doubtss of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 2011).

B. In full view of the following circumstances revealed by the evidence duly adopted and examined by the court, it is insufficient to view that the victim’s statement, the direct evidence as shown in the facts charged of the instant case, does not fall short of credibility or are based on conjection or suspicion, and other evidence submitted by the prosecutor alone was in a situation where the victim’s psychological or physical resistance is absolutely, absolute, or considerably difficult at the time of entry into the Hel on November 7, 2015, and there is no other evidence to prove that the Defendant has sexual intercourse with the victim by recognizing the victim’s status, and there is no other evidence to prove otherwise.

1) The friend I, together with the victim, stated that the victim her her friend I was her friend at this court where her friend and her friend were her friend and her friend while the victim her friended her friend at the time her friend and her friend was her friend while the victim was under the influence of alcohol at the time her friend friend, but her friend was her own friend, and her friend was her friend while her friend was her friend, and her friend was her friend at the new friend, and her friend friend was her friend at the time her friend. In light of the fact that the victim did not briend the body by drinking at the time friend.

2) On November 7, 2015, at around 00:00, the Defendant first met the victim who was sitting on the top of the second floor of the elevator of the Ear basin, and at the time the accommodation cost was settled at the HMoel (Evidence No. 19 pages) on the same day. As above, at least one hour and seven minutes from the first met time to the sex relationship. Even if the victim was under the influence of alcohol during his/her own time, even if the victim was under the influence of alcohol, it cannot be ruled out that there was a possibility that he/she may sit on or move into the E station, and move to the E station and the E station, while moving to the E station, there was no possibility that he/she would have been deprived of alcohol in the process of being drunk (see, e.g., Supreme Court Decision 2006Da12448, Nov. 7, 2015; 2006Da122488, Feb. 22, 2008).

3) At the time when the Defendant and the aggrieved party were in currency with K at the time of delivery, the Defendant did not return the mobile phone even at the end of the call that the Defendant forced to cut his/her cell phone and forced him/her to return his/her phone.

A. A statement stating that “the case was laid in front of cremation” (Evidence No. 10, 60, 116, 117 pages). However, the above statement is inconsistent with the victim’s statement (Evidence No. 132, 133 pages) that I asked I that I would have called “the victim’s conversations with the victim prior to transfer to the victim’s new forest basin after he hedging with the victim, whether I would be well known to the victim’s house?” (Evidence No. 132, 133 pages), while the Defendant and the victim made a conversation within the E basin, it is inconsistent with the victim’s statement that I called the victim’s relative from the victim’s telephone and the victim’s telephone (Ba No. 124 pages).

In addition, the above statement of the victim was made several times on the day by K, the victim was not received, the victim was cut off even after the connection was made, and the victim got out of K, and it is difficult to memory the fact that the victim was surved, and the victim made a statement to the effect that he was grounded on the prosecution (Evidence No. 116, 117 pages). Furthermore, in this court, the victim made it difficult to accept the victim's first statement from K that it was hard to say that the victim was surved with the victim's cell phone because it was hard to say that the victim was surved with the victim's cell phone, and that the victim was surved with the victim's cell phone at the time of this court, and that the victim was surved with the victim's first statement by the victim's cell phone, and that it was difficult to say that the victim was surved with the victim's cell phone at the time of this court.

4) 피해자는 피고인과 대질 조사를 받을 때, 피고인에게 유리한 듯한 사정이 제시되는 경우 자신의 추측까지 더하여 피고인의 진술을 적극적으로 반박하는 입장을 취하기도 하였다. 특히 피해자는 경찰 조사에서 'F모텔에서 자신이 일어나 휴대전화를 받자 피고인이 휴대전화를 강제로 끊었고, 남자친구로부터 전화가 계속 오는데도 피고인이 침대로 데려가 자신의 몸 위에서 제압하고 성관계를 맺었다'고 진술하였는데(증거기록 57쪽), 위 내용은 최초 조사에서는 진술되지도 않았고 그 이후의 검찰 조사에서도 진술되지 않았던 것으로(피해자는 '중간에 몸이 무겁다는 느낌이 들어 눈을 떴다, 제 몸 위에 누군가 있어 팔로 밀친 기억이 난다'는 정도만 진술하였다, 증거기록 12, 137쪽), 만취상태로 정신이 없거나 잃은 상태였다는 피해자의 다른 진술과 자연스럽게 연결되지 않는다.

In addition, the victim seems to have failed to submit the monetary content at the time despite the police's request. The victim asked employees in this court, so that the victim refused to issue the monetary content on the grounds of the protection of personal information because of human rights violations. However, the above statement that the mobile carrier refused to issue the monetary content requested by the owner of the mobile phone is difficult to accept, and even if the document does not contain the regular monetary content, it can be said that the record on the mobile phone itself can be substituted for the submission of the monetary content (and even though the victim stated that he/she was aware of the absence of his/her mother at the time in this court that he/she reported the telephone record of the mobile phone), there is no circumstance that the victim presented to the investigation agency.

In addition, the victim responded to the purport that the conversation that was divided into the defendant in this court and prosecutor's investigation will be made several times, and this is somewhat difficult to accept, and in relation to the "Yeong male-gu" that the victim told the defendant, in this court, the J stated that "I would like to see that I would like to see that I would like to see it like drinking brus," and I would like to see that I would like to 'I would know what we would know? I would like to 'I would like to see it in what kind of drinking brus,' but we would like to see with 'I would like to do so in what kind of drinking brus,' and it was contrary to the above statement of the victim.

5) Meanwhile, since the investigation agency, the Defendant had consistently been aware of the victim by, for example, dividing the conversations with the victim at the time of this court, and denied the charges of this case by denying the victim’s sexual intercourses under mutual agreement. The Defendant stated the victim’s appearance and words specifically from the first time of the interview to the time of the sexual intercourses. In light of the gender relationship, the Defendant clearly explained the victim’s situation and reaction at the time of the victim’s speech or at the time of the sexual intercourses, etc., the Defendant’s statement is difficult to find out in itself the non-conformity and contradictions, and it is high in credibility in line with other objective facts, a third party’s statement, etc. as seen below.

A) The Defendant divided the victim’s conversation, such as asking the address at the first time in the E basin, and stated that the victim stored his/her mobile phone (Evidence Record 37, 38, 52, 53, 119). In light of the same fact as the actual address of the victim, the “Seoul Gangseo-gu L/ 312”, which the Defendant stored, appears to have divided the victim’s address at least a simple door-to-door dialogue as to the address, and at the time, the victim was able to accurately mention his/her address (On the other hand, K’s 's 's 's 's 's ' is asked, and the contact was made only once, and the mother’s 's 's 's 's 's 's 's 's 's 's 's 's '' and her her mother's 's 's 's 's her mother' is also known.

B) In light of the fact that the Defendant: (a) divided the conversation with the victim out of the E basin and before entering the Helel; and (b) the victim’s head is a 21st century, and the victim now is a selel of her head (Evidence No. 39,53,125 pages); (c) the victim stated that “the victim was 195 birth; (d) the head was a sel of 1995 straw, and that “the date was 14 pages of the Evidence No. 14 pages) the victim was in a state that enables the victim to divide her personal body or appearance into the Eel; and (d) the victim’s personal body was informed, etc., it seems that the situation was not that the victim took a hostile think of the Defendant, and forcedly led the Defendant against his own will.

In particular, when the defendant divides the above conversation, the defendant stated that "the victim "the victim gets a tobacco to smoke" and "the tobacco was inspected" (Evidence Record 39, 53, 141 pages), "the victim did not scam the cigarette out of "the guest room" (Evidence Record 11 pages), "the victim did not scam the cigarette out of "the guest room" (Evidence Record 11 pages)," and "the smoking of the cigarette is likely to be scam in the habit (legal statement, Evidence Record 131 pages), and the E station is difficult to smoke inside the E station, while it appears that the possibility of smoking outside the E station and Hel room is the highest without a mixing of tobacco in the Hel room. In light of the fact that it was difficult for the victim at the time of smoking to voluntarily make a statement without experience of smoking in the first time, the victim made it clear that he had the intention to smoke and made it clear to the extent that he had the awareness of conversation above.

In addition, with respect to the victim's smoking or division of the conversations between the victim, the defendant stated that "if there has been no empty room to go to Mael", "the victim made conversations while smoking," and "the defendant searched the Hemototo mobile phone to find out the Hemoto, and then moved the signal, etc." (Evidence record 38,39,125 pages). The defendant's cell phone from around 00:45 on Nov. 7, 2015 after opening the Emoto, around 13 minutes from around 00:58, the victim's cell phone volume was used at 7,464 km (Evidence No. 106,107 pages of evidence record) and the victim's cell phone from around 01:07 on the same day, the degree of credibility of the victim's cell phone from the victim's cell phone from about 10:07 on the same day and about 2000 m20 m20 m2.

C) The Defendant stated that the victim 1 dynasium 2 was dynasium and dynasium 1 to 200, and that the victim was dynasium 1 to 30, and that the victim was dynasium 1 to 5, and that the victim was dynasium 2 to dynasium 1 to 5, and that the victim was dynasium 39, 40, 133, and that the victim's dynasium 2 to dynasium 1 to dynasium 5, and that the victim was unable to dynasium dynasium 1 to dynasium dynasium 1 to dynasium dynasium dynasium dynasium dynasium dynasium dynasium dy.

6) The point at which the Defendant and the victim first met was around 00:00 on November 7, 2015, and the point at which the opening of the E Station was opened is around 00:45 on the same day (Evidence No. 106 pages). The Defendant and the victim were in the E Station for about 45 minutes, and the Defendant did not move to the Helel immediately after the contact with the victim.

In addition, considering the fact that the victim’s address was asked and the address was stored in his/her mobile phone, it is difficult to view that the Defendant’s statement, which divided the victim’s sexual intercourse with the victim, about whether he/she first tried to return home, whether he/she can return home to the taxi, and whether he/she can pay the taxi expenses, is false.

7) The fact that the Defendant was identified as a suspect at the beginning of an investigation appears to have been due to the fact that the victim received details of settlement of credit card payments under the name of the Defendant regarding accommodation expenses from the HMoel employee and shipped them out to the investigative agency (Evidence No. 19, 137 pages). The fact that the Defendant, if he was transferred to the Defendant for the purpose of quasi-rape from the beginning and the implementation thereof, he could easily be the proviso to his identity, could not be easily explained.

한편 피해자는 자신의 주량이 소주 반 병이라고 진술하였으나(법정진술, 증거기록 117쪽), J는 '이전에 소주 한 병을 마시는 것을 보았고, 그 때는 멀쩡했습니다'라고 진술하였다.

8) On November 13, 2015, the victim visited the Gyeyang Police Station Down-gu District and reported to the investigation agency one week after the fact of quasi-rape was made by first making a statement about the damage of quasi-rape. The reason why the victim did not immediately make a report was that it was difficult for the parent to see whether or not he or she will become the parents by making a report. The victim made a statement that he or she should be punished after the lapse of time, and that he or she also reported that he or she should make a report (the steam record 14, 138 pages).

4. Conclusion

Thus, since the facts charged against the defendant constitute a case where there is no proof of crime, it is decided as per Disposition by the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges Tae-young

Judicial Chief Judge;