Accordingly, the defendant raped the victim by taking advantage of the victim's failure to resist.

1. Each legal statement of the witness, Nonindicted 2 (alias) and Nonindicted 1

1. Examination protocol of suspect of the defendant by the military prosecutor;

1. The suspect interrogation protocol of each military judicial police officer against the accused;

1. Investigation report (the result of response to the request for appraisal of the victim's clothes submitted);

1. A response to the request for appraisal and a gene appraisal report;

Articles 299 and 297 of the Criminal Act

The defendant and his defense counsel asserted that even though the defendant entered into a sex relationship with the victim, the victim did not have been able to resist to the extent that the victim did not have been in a state of non-rape.

2. Issues;

The key issue of the instant case is ① (a) whether the victim was in a state of failing to resist at the time of the instant case; and (b) whether the Defendant was aware of such fact and had the intention of quasi-rape seeking sexual intercourse.

3. Determination

(a) The victim's failure to resist;

The legal interest of the crime of quasi-rape under Article 299 of the Criminal Act is to protect the right to sexual self-determination of a person who is unable to defend himself/herself due to mental or physical circumstances. Here, the term "the state of mental disorder" means a state in which normal judgment concerning sexual acts is unable to be made due to mental disorder or food, namely, a state in which the other party is unable to properly exercise his/her normal response and coordination ability and judgment ability for his/her sexual acts on the grounds of alcohol, medicine, etc., and the term "state of non-accident" means a state in which psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than mental disorder (see Supreme Court Decisions 98Do3257, May 26, 2000; 98Do3257, High Court for Armed Forces, 2016No44, etc.).

In full view of the circumstances that can be recognized by the evidence duly admitted and investigated in this court as follows, the victim is deemed to have been in the state of mental or physical disability or failing to resist at the time of this case.

① 피해자의 평소 주량은 소주 1병 반에서 2병 정도인데 이 사건 당시에 소주와 맥주를 섞어 이른바 ‘소맥’으로 소주 1병 반 정도와 맥주(500cc) 2캔 정도를 마신 상태였다. ② 피해자는 술에 취하여 힘이 들어가지 않아 팔을 휘젓고 웅얼웅얼 소리내 반항하였다고 하는데, 군사법경찰관이 작성한 제1회 피의자신문조서의 진술기재에 의하면 피고인 또한 피해자가 손을 흐느적거렸다고 하고, 최초 피해자의 가슴 등을 만지다가 잠시 물을 마시러 방 밖으로 나갔다가 들어왔을 때도 누워서 혼잣말로 중얼거리면서 뒤척이고 있었다고 하는 바, 상당 부분 진술이 일치하는 것으로 보인다. ③ 피해자와 피고인은 일치하여, 이 사건 후 다음날 아침에 피고인이 피해자에게 어젯밤 일이 기억나냐는 취지로 물어봤다고 하고, 피해자는 기억나지 않는다고 대답하였는데, 이 법정에서 피고인도 피해자의 말을 믿었다고 진술했다(공판기록 제97쪽 등).

B. Whether the defendant was guilty

In a case where the defendant denies the criminal intent, the facts constituting such subjective elements have to be proved by the method of proving indirect or circumstantial facts having considerable relevance to the criminal intent due to the nature of things, and what constitutes such indirect facts should be determined by the method of reasonably determining the link of facts based on the close observation or analysis power based on normal empirical rule (see Supreme Court Decision 2005Do8645, Feb. 23, 2006, etc.).

In addition, in this case, since the defendant and the victim's statement about the intentional part of the defendant's intentional act are extremely clear, it will be a substantial core in determining who is the defendant's testimony. It is required to have high probative value in order to find guilty of the facts charged solely based on the victim's statement to the extent that there is little doubt about the truth and accuracy of the statement (see Supreme Court Decision 201Do16413, May 10, 2012, etc.). Meanwhile, although the probative value of evidence is left to the judge's free judgment, it should be in accord with logical and empirical rules, and the degree of the formation of the conviction to find the defendant guilty in a criminal trial should be beyond a reasonable doubt. However, it does not require that it be excluded from all possible doubts, and it is not permissible to dismiss it by reason of any reasonable doubt that there is no reasonable ground to believe that it is beyond the limit of the principle of free evaluation of evidence, and it does not necessarily mean that there is no reasonable doubt or consistency in the abstract evidence of this case.

살피건대, 이 법정에서 적법하게 채택하여 조사한 증거들에 의하여 인정할 수 있는 다음과 같은 사정들에 의하면, 피고인의 진술은 피고인의 이익에 따라 다소 변하는 모습을 보인 반면 피해자의 진술은 주요 부분에 있어 일관적이고 구체적이어서 녁넉히 피해자의 진술에 신빙성을 인정할 수 있을 것으로 판단된다.

① From the investigation stage to this court, the victim consistently stated to the effect that “the Defendant started to capture the victim’s body by entering the inner side of the victim(s).” On the other hand, according to the first examination protocol of the Military Law Police, the Defendant stated that “the victim was flicked on the floor. They were flick and flicked at the mixed level.” (Evidence No. 61 of the evidence record), and in the interrogation of the Military Prosecutor’s Office, he was flicking on treatment, and followed and followed. The Defendant did not come to the right side of the victim, and it was difficult to view that “the Defendant did not come to the opposite side of the building,” and that “the Defendant did not have any relation with the victim at the time when the victim appeared to be able to answer the questions of this case as the victim stated, but did not come to the trial division.”

② Until this Court, the victim stated that the above paragraph (a) (2) above was the same as the victim stated. At the time of the first interrogation of the defendant, the defendant made the statement as stated in the above paragraph (a) (2) above at the time of the first interrogation of the defendant, the military law police officer, and the second interrogation of the defendant. The second interrogation of the defendant was made without sexual intercourse with the victim, and he was made a voice, but he was made without sexual intercourse with the victim (the 87 pages of the record of evidence), but he was made with the new sexual intercourse (the 9th page of the record of the military prosecution). The victim's response at the time of his attempt to be inserted in the interrogation of the defendant, "I am her body or not sound," and the victim's answer that "I am the victim's body," was "I see that it was more favorable to the defendant's body, such as the defendant's remaining body," and that the defendant's statement was not changed (the 147th page of the record of evidence).

Examining the following circumstances together with the above facts in light of the above legal principles, it can be recognized that the Defendant reported the victim who was under the influence of alcohol at the place of crime and caused the criminal intent of quasi-rape.

① Even according to the Defendant’s statement, there was no explicit agreement in advance at the time of the instant sex relationship (such as 91 pages, etc. of the trial record), and the Defendant was trying to enter the victim’s inside and out of the room, and the victim was able to bring back the fluor, and the chest began to talk with the victim’s sexual impulse (as seen, No. 98 of the trial record, No. 61 of the evidence record).

② In light of the fact that the Defendant, as described in the above paragraph (1) 3, had first confirmed whether the victim is memoryd at the time of the instant accident and believed that the victim was not memoryd, it seems that the Defendant sufficiently recognized that the victim was under the influence of alcohol to the extent that the victim could not be memoryd at the time of the instant case.

In addition, the fact that the defendant and the two were in the office of the defendant until 3:00 p.m. after attending the office of the defendant on the day of the instant case ( April 18, 2016), the fact that the defendant and the two were in the office of the defendant, which had been in the office of the defendant, is somewhat different from the victim of sexual crime, or that the victim was not in the body of the victim, and that the defendant also made a statement (the military prosecutor's examination protocol, evidence record No. 150 pages of the military prosecutor's examination protocol, evidence record No. 150 pages of the defendant's examination record) that he was well aware that he was in the office of the defendant, and that he was in the office of the defendant, even though he was in the office of the defendant's wife, he was in the office of the defendant, and even after he was in the office of the defendant's wife, it cannot be concluded that the defendant did not have any behavior of sexual crime such as recording No. 41 of the trial record.

Therefore, the defendant and his defense counsel are not accepted.

Imprisonment with prison labor for not less than three years nor more than thirty years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] Adaptable rape (subject to 13 years of age or more)

【Special Convicted Person】

【Recommendation Area】

[Scope of Recommendation] Two to Five years of imprisonment

3. Determination of sentence: Three years of imprisonment; and

The Defendant, when his wife and her child are living in a ward, has sexual impulse with the victim, who was the most friendly victim with her wife and her child, was sexual impulse, causing the victim to destroy the human relationship of the victim and substantially dissolve her family against the victim's will, which led to the destruction of the victim's sexual intercourse and the de facto dissolution of the defendant's family. However, even though the defendant did not receive any written evidence from the victim until this court, it is consistent in reliance on the victim's own family, etc., which is disadvantageous to the defendant: Provided, That any crime committed by the Defendant shall be considered in consideration of favorable circumstances, such as the defendant's age, character and behavior, environment, details and method of the crime, circumstances before and after the crime, and other circumstances revealed in the argument of this case, and shall determine the same sentence as the order

The summary of the charge of rape among the facts charged of this case is that the defendant raped the victim at the time and place of the crime in the judgment of the court.

2. Relevant legal principles

In the case of rape, violence or intimidation must be such to the extent that it would considerably make it difficult for the victim to resist. Whether such violence or intimidation was significantly difficult for the victim to resist, shall be determined by comprehensively taking into account the following circumstances: (a) the content and degree of assault and intimidation by exercising tangible power; (b) the developments leading up to exercising tangible power; (c) the relationship with the victim; and (d) the circumstances at the time of the crime (see Supreme Court Decision 2001Do230, Apr. 27, 2001; 2001Do230, Apr. 27, 2001). In addition, in order to have commenced the commission of rape, violence or intimidation should have been the means of rape, and it is difficult to conclude that the defendant committed sexual intercourse with the chest of the victim being invaded by the victim for the purpose of rape, and even if he committed sexual intercourse with him, it is difficult to deem that the victim commenced as a means of rape (see, e.g., Supreme Court Decision 90Do607, May 25, 190).

3. Determination

In full view of the circumstances acknowledged by the evidence duly adopted and examined by this Court, namely, the Defendant and the victim themselves were in the atmosphere itself and the victim did not influence, and the statement was made to the effect that the victim could not be contacted or threatened to the extent that the resistance cannot be completely impossible if the victim was not drunk from a general point of view (the fifth page of the trial record). In full view of the following, it cannot be readily concluded that at the time of the crime of this case, the use of force or other force corresponding to the assault of rape was impossible or that there was an assault or threat to the extent that it could be considerably difficult to resist or substantially difficult to resist, and the evidence submitted by the military prosecutor alone cannot be recognized.

4. Conclusion

Thus, this part of the facts charged should be pronounced not guilty in accordance with the latter part of Article 380 of the Military Court Act, because there is no proof of facts constituting a crime. However, as long as the crime of quasi-rape, which is the ancillary facts charged, is stable, the court shall not

Definition (Presiding Judge) of the First Lieutenant rank of military judge