Act on Special Cases concerning the Punishment, etc. of Sexual Crimes,

Violation (Indecent act by compulsion in relation of relatives), Sexual Crime Action Action

Violation of the Act on Special Cases concerning Punishment, etc. (Quasi-rape within Relatives)

A defendant shall be punished by imprisonment for five years.

The defendant shall be ordered to complete a sexual assault treatment program for 40 hours.

(a) A prosecutor;

(1) misunderstanding of facts

Comprehensively taking account of the evidence, the first instance court erred by misapprehending the fact that the defendant acquitted the victim C while sufficiently recognizes the fact that the defendant committed indecent act by compulsion and quasi-rape.

2) Unreasonable sentencing

The punishment sentenced by the first instance court (two years and six months of imprisonment, etc.) is too unhued and unfair.

B. Defendant

The defendant, with the consent of the victim, has been living together with the chest of the victim, but has been damaged.

In the absence of the fact of rape, the first instance court erred by misapprehending the fact that it was recognized.

2. Determination

A. Regarding the prosecutor's assertion of mistake of facts

1) Summary of this part of the facts charged

가) 피고인은 2011. 12. 14 . 22:00경 창원시 성산구 D빌딩 1층 'E' 카페( 이하 ' 이 사건 카페'라고 한다 )에서, 피해자 C을 강제추행할 마음을 먹고 퇴근을 준비하는 피해 자를 이 사건 카페 내 사무실로 불렀다. 이에 피해자가 위 사무실로 들어오자, 피고인 은 양손으로 피해자를 끌어안아 반항하지 못하게 한 후 그 상태로 의자에 앉으면서 자 신의 무릎 위에 피해자를 앉히며 손으로 피해자의 몸을 쓰다듬고, 피해자의 옷 속으로 손을 집어넣어 가슴을 주무르고, 피해자의 옷을 걷어 올린 후 젖꼭지를 빨았다. 이로써 피고인은 친족관계에 있는 피해자를 강제추행하였다.

B) On February 11, 2012, at around 23:30, the Defendant: (a) 23:30 on the day of Kimhae-si, sent alcohol to the victim while drinking together with the victim; and (b) brought the victim to a mutual influence in the vicinity; (c) she took the victim by reporting the victim’s desire to do so; and (d) around 01:00 on February 12, 2012, the Defendant: (a) went off the clothes of the victim who had no consciousness under the influence of alcohol at a room where he cannot know the said room; and (b) had sexual intercourse once with the victim by taking advantage of the victim’s non-refluence in blood. Accordingly, the Defendant had sexual intercourse by taking advantage of the victim’s non-refluence

2) Judgment of the first instance court

(6) The first instance court held that it is difficult for the victim to have made a statement to the extent that he/she had a high level of 2-3 illness with the victim, while taking advantage of the probability that he/she could not drink well, and that the victim had sexual intercourse with the victim under the influence of alcohol, and that the victim's statement made it difficult for the victim to be believed to have sexual intercourse with the victim. The victim's first instance court's statement that it was difficult for the victim to have a high degree of 2-3 illness with the victim to have a close relation with the victim, and that it was difficult for the victim to have a high degree of 1-2 person's first time to have a close relation with the victim, and that it was difficult for the victim to have a high degree of 1-2 person's first time to have a close relation with the victim, and that it was difficult for the victim to have a high degree of 1-year victim's statement to be found that he/she had a high level of sexual intercourse with the victim's witness in the first instance trial.

3) Determination of the immediate deliberation

However, in full view of the following circumstances, the first instance court erred by misapprehending the facts, as it is sufficiently recognized that the Defendant committed indecent act by force against the victim and committed sexual intercourse with the victim who is unable to resist under the influence of alcohol.

① On December 14, 201, at the investigative agency, the first instance court, and the first instance court, the victim stopped the Defendant because the Defendant was frighted in the instant car page, and the Defendant was seated on the knee and knee of the Defendant, and kneed on the knee, knee and kneed on the knee, and continued to rhy the body, and khumd on the khum, so that the victim was unable to put the victim on the kne on the front of the tree, and the victim was stopped. The victim was tryed to get the victim on the knee in the instant car page. The victim was tryed to get the victim on the knee and tried to get the victim on the kne on the knee in the front of the tree, and the Defendant tried to get the victim on the knee and tried to have the victim on the knee.

② On February 11, 2012, the victim was at the investigative agency and the court of first instance and the court of appeal, and the victim was at the time of drinking alcohol with the defendant Kim Jong, and the defendant was at the time of drinking alcohol until 23, and was at the toilet. The victim was at the same time used on the floor, which was at the time of the defendant's frighting, and was at the time of the defendant's frighting. The victim was at the home before the victim's house in frightened. The defendant was at the house and partly memoryd with the victim who was at the house, who was at the bar, was at the time of the victim's frighting, and was at the bar, who was at the bar, and was at the bar and frighting with his clothes, and that the victim was at the bar, who was at the bar, and was at the bar of the victim's memory, and that the victim was at the bar's memory without his memory.

③ 피고인은 검찰에서 '2011. 12. 14. 피해자가 피해자 모의 남자친구와 전화로 심하게 다투는 것을 보고 피해자가 불쌍하여 피해자를 방으로 불러 피고인의 무릎 위 에 피해자를 앉혀서 피해자를 안았고 피해자를 안으니 순간적으로 욕구가 생겨 피해자 를 키스하였으나, 가슴을 만지거나 바지를 벗기려 하지는 않았다.'라고 진술하여 피해 자의 진술에 일부 부합하는 진술을 하였고 , 또한 '2012. 2. 11. 피해자와 김해에 있는 참치횟집에 가서 참치회를 먹으면서 술을 좀 많이 마셨고, 그 가게가 24시에 문을 닫 는다고 하여 23시 50분경에 위 가게를 나와 차에 갔는데 피해자가 술에 취하여 인사 불성이 되었고 차 안에 있으니 답답하여 피해자에게 바람을 쐬러 나가자고 하여 피해 자를 밖으로 데리고 나오니 주변에 모텔들이 눈에 들어와 피해자를 모텔로 데리고 갔 으며, 모텔에서 침대에 누워 있다가 피해자에게 키스를 하였는데 술에 취하여 흥분하 여 피해자와 성관계를 하게 되었고, 성관계 이후에 잠깐 동안 잠이 들었다가 잠이 깨 서 옷을 입고 피해자도 옷을 입혀주어 집으로 차를 운전하여 왔으며, 편의점에 가서 술 깨는 약 2병을 사가지고 와서 피해자와 먹었다.'라고 진술하여 피해자가 기억하지 못하는 부분까지 상세하게 진술하고 있다(피고인은 검찰에서 윽박지르면서 조사를 하 고 , 피해자가 합의만 해주면 모든 것이 끝날 수 있다는 생각에 공소사실을 시인하는 진술을 하였다는 취지로 주장하나, 강제추행 부분에 관하여는 일부 사실에 대하여만 시인할 뿐 전체적으로는 부인하는 취지인 반면, 준강간 범행 부분에 관하여는 검사나 피해자가 알 수 없는 부분에 관하여도 상세하게 설명하고 있는 것을 보면 피고인의 위 주장은 받아들이기 어렵다).

④ Comprehensively taking account of the statements made by the victim and the defendant, at the time of February 11, 2012, the victim was in a state of personnel in which the victim had a higher level of alcohol than that of the ordinary level of drinking, and even if the defendant was in a certain degree of drinking, the victim was deprived of his/her body and went back to the motel. After sexual intercourse, he/she was driving the house with his/her body and her body so that the victim could have a weak degree of drinking. Considering such state of the defendant and the victim, the circumstance that the defendant could have sexual intercourse with the victim who was in a state of insufficient failure to resist, and the circumstance that the victim was more drinking than the defendant does not interfere with the recognition above.

⑤ Even though it is difficult to believe that the victim made a statement to the male-gu at the time of the crime of quasi-rapeing, etc. that the victim knew of the text message to the male-gu at the time of the crime, and there was a little false statement about the insurance contract that the victim made it difficult for the victim to raise the evidence of the first instance trial because of the victim’s somewhat false statement about the insurance contract, the victim does not have any circumstance to view that there was a reason or motive to file a complaint with the denied defendant with the false fact and

6. At the investigation agency and the first instance court and the first instance court, the victim tried not to go to the instant car page after the initial indecent act by compulsion, but this mother continued to go to the instant car page by stating that it should be closed if the victim does not go to the instant car page, and the defendant was not able to see the defendant without being able to use it, and since two weeks later, the victim made efforts to be forgotten, " how to keep kne kne kne kne kne kne kne kne kne kne kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kle kn kn kn kle kn kle kn kn'.

1⑦ 제1심 증인 G, F, H, 당심 증인 양정대의 진술에 의하면 피해자가 피고인의 무릎에 앉아 있는 것을 본 적 있다는 것이나, 이러한 사실이 있다고 하더라도, 피해자 와 피고인의 나이, 관계 등을 고려하여 볼 때 피해자가 피고인이 자신의 가슴을 만지 고, 젖꼭지를 빠는 행위를 용인하고, 자신을 간음하는 것까지 피해자가 승낙하였다고 보기는 어려우므로, 위와 같은 사정은 피고인이 피해자를 강제추행하거나 준강간하였 다는 사실을 인정하는데 방해가 되지 않는다.

Therefore, this part of the prosecutor's argument is justified.

B. Regarding the defendant's assertion of mistake of facts

The court of first instance duly adopted and examined the following circumstances: ① the victim’s statement is consistent and specific credibility; ② the victim’s chest and gender are also consistent with the victim’s statement by making the victim’s statement to put his finger and fingers into the victim’s sexual organ; ③ the victim was aware of the victim’s own secret and her arms and legs with the victim’s body; ③ the victim was her chest and her chests with the victim’s body, and the victim was her chest, and the victim was her chest, and the victim was her chest, and the victim was her breast and panty. In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court of first instance, the victim’s statement that the victim was her arms to prevent resistance; ② the victim was her arms and her arms, and the victim was unable to resist the victim’s self-reliance by taking into account the fact that the victim was her body and the victim’s body cannot be seen as having been raped by sufficiently considering the fact that the victim was raped by the police.

Therefore, the defendant's assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal has a reasonable ground for appeal. The defendant's violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent act by compulsion in relation to relatives) and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (in relation to relatives), among the charges, are all guilty. The above two crimes and the first instance court's violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (in relation to relatives), which are convicted of the defendant, should be punished as one of the concurrent crimes under the former part of Article 37 of the Criminal Act in accordance with Article 38 (1) of the Criminal Act. Thus, the first instance judgment is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without any argument on unfair sentencing by the

Criminal facts

The Defendant, who operates the instant car page on the first floor of the Changwon-si D Building in Changwon-si, was the part of the damaged party C (V, 19 years of age), and the victim worked as an employee from October 201 to October 201.

1. 피고인은 2011. 12. 14. 22:00경 이 사건 카페에서, 피해자 C을 강제추행할 마음 을 먹고 퇴근을 준비하는 피해자를 이 사건 카페 내 사무실로 불렀다. 이에 피해자가 위 사무실로 들어오자, 피고인은 양손으로 피해자를 끌어안아 반항하지 못하게 한 후 그 상태로 의자에 앉으면서 자신의 무릎 위에 피해자를 앉히며 손으로 피해자의 몸을 쓰다듬고, 피해자의 옷 속으로 손을 집어넣어 가슴을 주무르고, 피해자의 옷을 걷어 올 린 후 젖꼭지를 빨았다.

Accordingly, the defendant committed indecent acts by compulsion against the victim's relatives.

2. On February 11, 2012, at around 23:30, the Defendant: (a) taken drinking together with the victim at the seat of Kimhae-si, and took drinking to the victim by reporting the victim’s desire; and (b) took the victim to the mutual influence in the vicinity. On February 12, 2012, the Defendant, at around 01:0, went to sexual intercourse with the victim one time, after being drunk off the clothes of the victim who was unable to be able to be able, under the influence of alcohol at a room where the said room cannot be known.

Accordingly, the defendant had sexual intercourse by taking advantage of the victim's blood victim's non-competence.

3. On June 27, 2012, at around 22:30, the Defendant moved to the office in the instant carpet by attracting the victim in front of the victim who was preparing for leaving the instant carpet. The Defendant went to the office in the instant carpet by bringing the victim in hand. The Defendant: (a) kneeing to the knee of the above office knee of the victim; (b) kneing the kne of the victim into the knee of the knee; (c) kneing the kne to the kne of the victim by taking the kne of the kne; (d) putting the kne into the kne of the sto of the victim; (c) putting the kne into the kne by placing the kne in the kne of the sto of the victim; and (d) putting the victim in a sexual intercourse once with the victim.

Accordingly, the defendant raped the victim's kinship.

Summary of Evidence

1. C’s legal statement;

1. Entry of the accused in part of the protocol of the third trial in the first instance;

1. Statements and entries of the protocol of examination of a witness C in the fourth and seventh trial records of the first instance;

1. Each prosecutor's protocol of examination of the accused;

1. Statement by the prosecution against C;

1. A criminal investigation report (in case of investigating and verifying genes between countries);

1. Family relation certificate and a certified copy of the removed family relation register;

Application of Statutes

1. Article applicable to criminal facts;

Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 298 of the Criminal Act, Article 5(3) and (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 299 of the Criminal Act, Article 5(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment for Concurrent Crimes in Relation to Relatives) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for favorable circumstances required for the sentencing):

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Exemption from an order for disclosure and notification;

In light of the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the first offender who has no record of punishment so far, support for two children and wife while operating the Kapets in this case, etc.), the relationship between the defendant and the victim is a relative relation, and the motive and circumstance of the crime in this case, etc., it is difficult to deem that the defendant is likely to recommit a sexual crime again, there are special circumstances that may not disclose and notify the personal information of the defendant, in full view of the following:

Reasons for sentencing

The defendant has no record of punishment so far, and the most favorable sentencing factors such as the support of two children and wife are recognized.

However, it is also recognized that the Defendant did not have an attitude to reflect on the fact that the Defendant had sexual intercourse with the victim, who was in an influence of resistance under the influence of alcohol, committed rape, and subsequently resisted the victim, and that the crime was extremely poor, and that the victim did not suffer from severe mental and physical pain due to the instant crime, even though the victim was unable to take advantage of his mental and physical pain due to the instant crime, and that there was no suspicion of the victim or the consent of the victim.

The above sentencing factors and the defendant's age, character and conduct, intelligence and environment, motive and background leading to the crime of this case, the means and consequence of the crime of this case, and the circumstances after the crime, etc. shall be comprehensively considered, and the punishment as ordered shall be determined in accordance with the text.

Registration of Personal Information

Where a conviction becomes final and conclusive in relation to the crime of this case against the defendant, the defendant is subject to registration of personal information pursuant to Article 42 of the Act on Special Cases concerning the Punishment, etc. of Sexual Exposure and is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act.

It is so decided as per Disposition for the above reasons.

State of Morse

Edive Exchange