[2] The case holding that the defendant's exercise of force constitutes "Assault" of the crime of rape

[2] The case holding that the above act of the defendant constitutes a "rape" in the crime of rape in light of the following: the defendant is a professor of sports department and a professor of Taekwondo team, who has a large height in comparison with the average body style of Korean people; the defendant flicked his body; the defendant flicked the victim by completing his ability, such as leaving the victim's head in the course of rape, taking the victim's back with the back part of the victim, taking the body flicking his body, or cutting the victim's body flicked with his body; the victim who obtained a doctor's degree from the defendant as the defendant at the time of the damage was at the time of rape and failed to report it to the investigator immediately after the rape was requested to help the defendant significantly sound at the time of the damage, and the victim resisted his body at the time to stop rape; and accordingly, the victim took considerable time in the course of suppressing the victim until rape until the rape was rape.

A defendant shall be punished by imprisonment for not less than three years and six months.

A. Summary of the grounds for appeal against the judgment of the court of first instance

(1) misunderstanding of facts

The credibility of the statement by the victims of the indecent act by compulsion and witness in the case of indecent act by compulsion is doubtful by making a statement that continuously revises, reverses, or logically contradictory on the place of each indecent act by compulsion from the investigative agency to the original trial, the circumstances before and after the indecent act by compulsion, and the specific contents of the indecent act by compulsion, and the credibility of the statement is doubtful. The victim Nonindicted 1 should be acquitted of the charges of indecent act by indecent act against the defendant on the ground that it is likely that it is difficult for the defendant to graduate from a graduate school or obtain a doctor’s degree as long as the defendant is teaching, and that it is difficult for him to appoint him as a professor if he knows the inappropriate relation with Nonindicted 2, a part-time lecturer of the same university, as a means to drive away from his school position.

(2) Unreasonable sentencing

The punishment of 10 months sentenced by the court below is too unreasonable.

B. Summary of the grounds for appeal against the judgment of the court below

First, Article 254(4) of the Criminal Procedure Act stipulating the date and time of the crime from December 15, 2006 to the 24th day of the same month specifies the date and time of crime from January 11, 2007 to the 24th day of the same month. This is an unspecified charge that lacks the purpose of Article 254(4) of the Criminal Procedure Act requiring minimum specification of the facts charged to exercise the defendant’s right of defense and makes it difficult to exercise the defendant’s right of defense difficult. Second, in light of the motive and circumstance leading up to the instant complaint, the prosecution as to Article 254(1) and (2) of the facts charged are all dismissed. As such, there is a strong indirect evidence other than the parking lot, time and security card record, the victim’s statement from January 11, 2007 to the 14th day of the same month, and the victim’s physical rape from the first instance court’s argument that it was objectively impossible to reverse the victim’s statement during the investigation process.

2. Determination

A. Judgment on the misunderstanding of facts against the judgment of the court of first instance

(1) As to the indecent act by compulsion against the victim non-indicted 3 on January 24, 2007

On January 24, 2007, the defendant's act of indecent act against the victim non-indicted 3 on the part of January 24, 2007, the victim non-indicted 3 consistently made statements from the police to the court below as to the situation where the defendant committed an indecent act against the victim non-indicted 3 from the police to the court below, and the contents of the statements are the same as those of the victim non-indicted 3's statement, and in the case of non-indicted 4, it is difficult to find any circumstances that make a special disadvantageous statement to the defendant, who is a professor of the sports department where the defendant takes a doctor's degree course, and the situation prior to the defendant's indecent act or the attitude of indecent act, etc.

(2) As to each indecent act by compulsion against the victims of February 15, 2007

The defendant's statement was made on February 15, 2007 by indecent act against the victims at ○○○○○○○○○○○○○○○○○, and the victims were made with relatively detailed descriptions of the victim's indecent act at the time of singing or singing, and relatively consistent statements from the police to the original trial. Nonindicted 4, an witness, even before and after singing, was seated behind the victim's singing and went back to the victim's singing, and the victim's statement could not be seen as an indecent act in light of the fact that the victim's statement was made in a relatively detailed manner after the victim's oral act in △△△△△△’s name was changed to the victim's first place of singing, and the victim's statement could not be seen as an indecent act in △△△△△△ on the ground that the victim's statement was made in a way that the victim's statement was made without any interest in the victim's oral act. However, if the victim's statement was made in a relatively detailed manner, he could not be seen as an indecent act in the victim's statement.

(3) As to the indecent act by compulsion against the victim non-indicted 3 on March 16, 2007

Defendant’s indecent act by force against Nonindicted 3 on March 16, 2007: (a) the health stand, Nonindicted 4, a witness at the time, had the police from March 16, 2007 to the original trial; and (b) the victim Nonindicted 3 requested the victim to send text messages several times on March 16, 2007 to himself; and (c) accordingly, he had the victim go through the voice of the victim after completing the operation; and (d) the Defendant had the victim go through the singing room. At this point, the Defendant sent the head of Nonindicted 3 on his hand before the monitor in the singing room, and the Defendant was going to go to go to the court; and (e) the content of Nonindicted 3’s statement is the same; and (e) the victim’s text messages was sent to Nonindicted 4 before the victim appears to be indecent act by force from the Defendant; and (e) the victim’s statement and the content of the text messages are also consistent with each of the Defendant’s assertion that the victim’s text messages was sent to Nonindicted 3.

(4) As to the indecent act by compulsion against the victim non-indicted 1 on May 2, 2007

On May 2, 2007, the defendant's indecent act against the victim non-indicted 1 was committed, although there is a little difference in the contents of the statement made by the victim non-indicted 1 and witness non-indicted 3 at the early stage of the investigation, the non-indicted 5, 6, and 7 at the time were made that they were unable to witness it. However, the non-indicted 3 made a relatively small and consistent statement from the police to the court below. The victim non-indicted 1 has a difference in the contents of the statement made by the non-indicted 3 who was witness at the early stage of the investigation, that is, the victim non-indicted 3, who was witness at the time of the investigation, was committed an indecent act at the early stage from the prosecution to the court below, and the contents of the testimony at the early stage of the investigation seem to have been recorded in the protocol only in the victim non-indicted 1's damages, and there was no experience in the witness's indecent act in light of the fact that there were many people in this part of the defendant's speech.

(5) As to the indecent act by compulsion against the victim non-indicted 1 on May 18, 2007

On May 18, 2007, the Defendant’s act of indecent act by compulsion against Nonindicted Party 1 by the victim, Nonindicted Party 8, who was the witness at the time, consistently from the police to the original trial, had consistently made the Defendant and the victim Nonindicted Party 1 and the drinking place together, the circumstances leading to the second and third instances, the reason why the drinking place was caused, the situation where the Defendant had been present at the scene of committing an indecent act against the victim Nonindicted Party 1, or the contents of the witness in detail; Nonindicted Party 8’s above statement conforms with the contents and overall aspects of the victim Nonindicted Party 1’s statement; in Nonindicted Party 8, it appears that there is no reason to make a statement to the Defendant specifically disadvantageous to the Defendant as a doctor’s student at the sports department as a professor, this part of the Defendant’s assertion is without merit.

B. Judgment on the grounds of appeal against the judgment below of the second instance

(1) Judgment on the rejection of prosecution

The purpose of Article 254(4) of the Criminal Procedure Act, which requires that certain elements of the facts charged be met, is to facilitate the exercise of the right of defense by specifying the scope of the defendant's defense. As such, the facts charged are sufficient to the extent that the specific elements of the crime can be identified to the extent that the specific facts that meet the elements of the crime can be identified, and the time of the crime as referred to in the above provision of the Criminal Procedure Act can be stated to the extent that it does not conflict with double prosecution or prescription. Thus, even if the time of the crime is not specified specifically in the indictment, the statement is not contrary to the above extent. Furthermore, if it is inevitable to indicate the time in general in light of the nature of the crime, and it is deemed that the exercise of the defendant's right of defense is not impeded (see Supreme Court Decision 97Do1211, Aug. 22, 1997, etc.).

1. On the 20th anniversary of the facts charged, Non-indicted 1 stated on the victim's 20th day and the 1st day and the 20th day and the 1st day and the 20th day and the 1st day of the 20th day and the 1st day of the 20th day and the 1st day of the 20th day of the 20th day and the 1st day of the 20th day and the 1st day of the 1st day of the 20th day and the 1st day of the 1st day of the 20th day and the 1st day of the 1st day of the 20th day and the 1st day of the 1st day of the 20th day and the 1st day of the 20th day and the 1st day of the 20th day and the 20th day and the 1st day of the 20th day after the 20th day and the 3th day.

(2) Determination of misunderstanding of facts

(A) As to the assertion of false accusation regarding the motive of the accusation

As to the motive of the victim's criminal complaint, the defendant raised a crisis that the victim's body is closed and the defendant is unable to obtain a doctor's degree or to appoint professor as long as he/she is a guidance professor, and the defendant knew the inappropriate relationship with the non-indicted 2, and raised a false complaint on the ground that the investigation of this case was conducted at an economic crime investigation team, which is not a female juvenile community, and the investigation procedure was conducted rapidly during the initial investigation process.

However, the victim non-indicted 1 appears to have been able to have sufficiently predicted that the acquisition of doctor's degree or the appointment of professor who the defendant wishes at the time of filing the complaint against the defendant at the time of the complaint against the defendant, and that if the fact of damage is known, the marriage or social life may be achieved in our society in the future. Nevertheless, it is difficult to regard that the defendant was simply punished for a false complaint for the purpose of committing the defendant, and in the case of the inappropriate relationship between the victim non-indicted 1 and the non-indicted 2, the students who had been in the same graduate school do not have any opinion, and in the case of the non-indicted 2, the consultation with the non-indicted 9, his wife around June 12, 2007, it does not appear that the defendant had a substantial influence on the course of the victims, and thus, it does not appear that the department in charge of the investigation team of this case and the criminal investigation team of this case could not have any substantial influence on the criminal investigation team of this case.

(B) Regarding the reversal or contradiction of the victim's statement

The Defendant asserts that the victim Nonindicted Party 1’s statement continues to reverse the Defendant’s statements in essential and core parts, such as the date and time of rape, the state of clothes at the time of injury, the work immediately before rape, the circumstances after rape, and the treatment of clothes, etc., during the course of the first instance trial from the date and time of rape in the course of the investigation.

However, the victim non-indicted 1 stated the date and time of the crime in the initial statement at the complaint center and at the police center by demanding the victim to specify the date and time of the crime at the bar office that requested the case, but it appears not to have been stated on the basis of accurate memory. After that, he stated the date and time stated in the indictment of this case as the date and time of rape, and stated the date and time of rape in detail on a reasonable ground as stated in the indictment.

With respect to clothes worn at the time of rape, the victim non-indicted 1 stated from the police to the public prosecutor's questioning on June 24, 2008 that he had worn a Cheongbus from the police to the public prosecutor's questioning on June 24, 2008 that he had no accurate memory as to the defendant's appearance. As the defendant's defense counsel pointed out, it is difficult for the victim to reverse his statement by mentioning that it is not easy for the prosecutor to take off in comparison with other ones ordinarily open by the public prosecutor at the examination on the day of June 24, 2008. However, even when the victim took place in a usual place, it is difficult for the victim to say that he was raped at the time of initial statement, and that he did not change his credibility to the part that he made the statement to the extent that it is not clear after the second investigation order was issued, and that he did not change his credibility in the part that he made the statement to the extent that he made the statement.

In addition, the victim non-indicted 1 had been working as a unit procin instead of the research paper of the defendant in the initial accusation on January 2007, but, on the first police statement, it had been working as a unit procin since it was possible to print the paper as a unit procin and output it as a unit of the defendant's laboratory in the first police statement. After that, in the prosecutor's statement, the victim was working as a unit of the defendant's laboratory in order to print the computer, and printed it into the defendant's laboratory in order to print out the computer. The above contents of the statement in the prosecutor's statement were minor differences in the specific part, but the victim's work as a unit of the defendant's thesis and came into the defendant's laboratory for printing the computer, it is judged that the above minor differences have been consistently stated except for the above minor differences.

In addition, the defendant made a statement to the investigative agency that "bucks that the victim has flown down at the buckbbbbbbs" when he stated that the above statement was replaced by "dobs," but it is extremely impossible to memory the time and place for which he handled the fixed amount. However, the victim made a professor's appearance to ask questions about how to rape in the prosecutor's office after rape, and the victim made a statement to the investigative agency that the victim had flown down at the buckbbbs. In light of the purport that the victim's statement that the victim was forced to fuck, it seems that the victim had expressed the situation immediately after rape, and that the victim's statement that the victim fucks down at the trial was fucked, and that the victim's specific experience in the examination and treatment of the victim's house should not be found to have been able to be consistent with the victim's testimony and treatment in the past, and thus, it seems that the victim's specific statement or treatment of the victim's clothes before rape.

(C) As to the assertion regarding the entry and departure record of the parking lot

The Defendant first entered the parking lot on January 11, 2007 based on the records of the entry into and departure from the parking lot concerning rape on January 11, 2007. On the 12th of the same month, the Defendant and Nonindicted Party 1 did not have an opportunity to see that the Defendant and Nonindicted Party 1 entered the parking lot on January 15, 2007, on the grounds that the Defendant’s vehicle entered the parking lot on January 12, 2007, and that there was no opportunity to see: (a) the Defendant was working at a graduate school on January 15, 2007 through September 24, 2007; (b) the parking lot was set at 08:53, 16 days, 09:05, 17 days, 09:01, 222 days, 09:15, 23 days, 09:26 days, 209:26 days, 14 days, and 208 days, etc.

However, the victim stated that the defendant and the victim are not necessarily going out and leave a lane, and that the university's entrance and departure management media is composed of parking ticket issuing machine, tea numbering machine, RF premiumer, etc. The entrance and departure management media of the university in which the defendant had been employed is not recorded at the time of static or repair, but at the time of school events, it is not recorded because the entrance control devices are cut off. Even when two or more vehicles enter the school, it is difficult for the settlement personnel to enter the vehicle number at several times because the vehicle number is not recognized after the vehicle number is turned out. In light of the fact that there is a possibility of an error in the entry process, the entrance and departure time of the defendant's vehicle is 10:42 on June 18, 207, the entrance and departure time of the defendant's vehicle is 10:36 hours, and the defendant's entrance and departure time is 10:40 hours on the day of each 10:5 hours on the date of entrance and departure.

(D) As to the argument regarding the record of the security card

On January 1, 2007, the Defendant stated that the victim stated that he had entered the Defendant’s laboratory in the situation where he entered the Defendant’s laboratory, and that such situation may arise, the victim should first remove the security device of the Defendant’s laboratory. During the period from January 11, 2007 to January 24, 2007, the date when the victim first removed the laboratory security device from the Defendant is not only 12 days, 19 days, and 22 days, and the remainder day did not first remove the laboratory security device or remove it from any way. The Defendant did not first remove the security device. On the above 12 days, 12 days, 19 days, and 22 days, the time until the time until the victim installed the security device. In other words, it is merely 1 to 7 minutes in the laboratory and the situation as alleged by the victim could not occur during that period.

However, the above argument by the defendant is basically premised on the fact that the victim cannot take care of the situation where the defendant is in the room of the defendant at the time of cancelling the laboratory security device. However, the defendant could have been raped by the defendant who left the room without operating the security device for seeing the locking day after leaving the room after leaving the room for the defendant's work and leaving the room for seeing the locking day. In light of the fact that the defendant goes to the morning from January 11, 2007 to the 24th of the same month and goes to the day of cancelling his laboratory security device, it is determined that the occurrence of the situation claimed by the victim is sufficiently possible.

According to the security card records of the Defendant’s laboratory on June 18, 2007, on the same day, the victim Nonindicted Party 1 removed the security device at 9:23:58 seconds on the same day, and immediately set at 9:24:10 seconds on the same day, and thereafter, the Defendant removed the security device at 10:36:52 seconds, but re-exploited at 17:24:5 seconds. At least on the same day, the victim Nonindicted Party 1 entered the laboratory first, and entered the laboratory, and the Defendant was found to have entered the laboratory, and at least on the same day, the victim Nonindicted Party 1 entered the laboratory first, but the situation where the victim and the victim were made later, as stated by the said victim, cannot be achieved.

However, according to the records on the security card of the laboratory and the school room, the defendant removed his own laboratory security device at 10:36:52 seconds on June 18, 2007, and then removed the school room security device at 11:12:46 seconds on the same day after the date. Thus, the defendant could have been raped by the defendant who entered the defendant's laboratory in order to make the toilet or other see that the victim gypted at the school after his working in the laboratory. At the time, the defendant was 30 minutes inside and outside of the school, but according to the victim's statement, the defendant started rape with his efforts to leave the laboratory, and the defendant was released from the view that the defendant's sexual assault time was about an average of 20 minutes after his working in the school, and the security device was suspended without considering the situation that the defendant was released from the view that the defendant's gypted.

(E) As to the argument regarding the record of work log

On June 18, 2007, the Defendant asserts to the effect that rape cannot be achieved in the time indicated in the facts charged, on the following grounds: (a) the victim was employed as a assistant worker from 09:00 to 14:0 on the working log in the third joint computer room in the university science museum of the university that he/she had employed on June 18,

However, the duty of computer counseling in the joint computer room of the science museum in which the victim was in charge may be resolved first when the student uses a computer and operated a computer or a printer, and if not resolved, the duty is not so much. The duty of the computer teaching staff is not so much. Since the computer teaching staff actually reduced or exempted school expenses in the form of scholarships from the university, it can be done with the approval of Nonindicted 10, a manager, and even if the computer teaching staff is in the place of work, it may not be written in the work site. In light of the form of preparation of the work site, the computer teaching staff does not strictly separate the work hours from the work site to record the work hours in the computer room, and it can not be readily concluded that the victim entered the work site only in the above work hours.

(f) As to the argument regarding the statement that the defendant had observed the chest of the defendant

In addition, in light of the fact that the victim non-indicted 1 made a statement that he was aware of the defendant's chest, and the length, color, degree, etc. of the defendant's hair and did not respond to any question about how the defendant's right is simple, it is argued that the victim only made such statement by the facts that he was well aware of the defendant's physical characteristics, such as frequent appearance of the defendant and golf, and that he did not witness the victim's chest at the time when rape was actually committed.

However, the victim non-indicted 1 stated in the court below that he was aware that he was aware of the chest on June 18, 2007 at the time when rape on the part of the defendant was raped on June 18, 2007, and since the court below made a statement that the victim had been aware of the chest in the chest in the process of resisting and resisting the defendant's rape, the victim made a statement that he had been aware of the bodily characteristics of the defendant at the time when raped on the part of the defendant. The victim's statement was made in the court below just before raped just like in the trial, and that he had been heated and heated, not through heated and heated. The contents of the statement are consistent as a whole, and the degree and form of the hair of the chest in the upper half of the defendant's body correspond to the victim's statement and it is sufficiently recognized that the credibility of the victim's statement is sufficient.

(G) As to the assertion that the physical and objective impossibility of rape

The defendant asserts that rape is physically and objectively impossible in the attitude that the victim non-indicted 1 was raped.

However, from among the facts charged about rape against the victim non-indicted 1, rape first 2 was conducted by the defendant divided the victim's rear neck, etc., and by pressure, such as breaking the victim's body into his body, etc. The last rape was conducted by the defendant's act of rape. The defendant's act of rape was conducted by taking the victim's body in order to put the victim's body into the victim's body and breaking the victim's body into the victim's body. However, if the victim's resistance, it is not easy to put into the victim's sexual organ into the victim's body. However, even according to the victim's statement, the sexual assault time is about 20 minutes, which has much time to suppress the victim's body, and the victim's act of rape was made in the actual form of rape as stated in the victim's statement.

(h) As to the assertion that the statements made by the victim are different from the statements made by the victim of rapes in ordinary

The defendant asserts that the victim non-indicted 1 was not at all suffering from rape as well as the inside and outside of the body after rape, and that he did not know about the sex and her pregnancy at all after rape, and that he did not receive any medical treatment from a woman in childbed or a psychiatrist, and that there is no credibility of the statement because the form of the victim for rape was different from that of ordinary rape.

However, the victim non-indicted 1 stated, however, that he was able to ask the investigative agency and the court below and the court below to ask the defendant whether he was injured after rape, and that the part of the sexual organ was forced by inserting questions about whether the defendant was injured. At that time, the victim's statement that he was rape was unable to seek advice on the surrounding area, and that he was unable to find the obscencies, and that he was able to ask the victim about whether she was pregnant, and that he did not know about whether she was pregnant. In full view of the above statements of the victim, the victim's statement appears to have been sexual shock with the victim's injury, such as the injury and injury, after rape, and that the victim did not appear to have been sexual shock, or that she did not appear to have been able to ask the victim for counseling or consultation about the surrounding part because she did not appear to have been rape with the victim's behavior.

(i) As to the assertion that there was no assault in the crime of rape

The defendant asserts that even according to the victim non-indicted 1's argument, it is difficult to see that there was an assault in the crime of rape.

However, whether a perpetrator committed assault and intimidation to establish the crime of rape should be determined based on the specific circumstances in which the victim was faced at the time of rape by comprehensively taking into account not only the content and degree of assault and intimidation, the background leading up to exercising force, the relationship with the victim, and the circumstances at the time of rape and the subsequent circumstances. From an ex post perspective, the mere fact that the victim could escape the scene of crime before the sexual intercourse, or the victim did not resist with his/her mental capacity should not readily conclude that the perpetrator’s assault and intimidation did not significantly obstruct the victim’s resistance (see, e.g., Supreme Court Decision 2005Do3071, Jul. 28, 2005). From the perspective of the fact that the victim’s act of assault and intimidation was not only a professor of sports department, but also a serious and serious situation when compared with the average body type of Taekwondo, and that the victim was forced by acquiring the victim’s doctor’s consent from the victim’s body during the course of rape, etc., and that the victim’s body was seriously s body or obd by acquiring the victim’s body.

(j) Sub-decisions

Therefore, there is no reason to argue that the defendant's second instance judgment should be acquitted because there is no fact that the defendant rapes the victim in the charges of rape against the defendant.

C. Ex officio determination

After the court below's first and second judgments against the defendant separately, the defendant was sentenced to imprisonment for 10 months with prison labor for the former and 3 years for the latter, and the defendant appealed against each of the above two appeals cases. The defendant filed an appeal against the above two appeals cases. The court below's decision of the first and the second judgments of the court below should be sentenced to a single sentence within the scope of a prison term for concurrent offenses under Article 38 (1) of the Criminal Act because each of the offenses listed in the judgment of the court below and each of the offenses listed in the judgment of the court below in Article 37 of the Criminal Act are concurrent offenses under the former part of Article 37 of the Criminal Act. Thus, the judgment of the court below and the second judgment of the court below cannot be exempted from all reversal.

3. Conclusion

Therefore, the judgment of each court below is reversed in its entirety without the need to decide on the grounds for appeal of unfair sentencing against the Defendant’s first instance judgment, and it is again decided as follows through pleading.

Article 297 of each Criminal Code (Rape) and Article 298 of each Criminal Code (Indecent Act by Indecent Act by Force, Selection of Imprisonment)

1. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent Crimes for the Victims Non-Indicted 1 of June 18, 2007)

Judges Lee Dog-won (Presiding Judge)