Attorney Yoon Tae-sik, Counsel for the plaintiff-appellant

around 2019, 4, 24 03:00, the Defendant, at around 03:0, 200, purchased the victim D (tentative name, leisure, 47 years of age) from the telecom to the telecom near the Cridge located in Dobong-gu Seoul Metropolitan Government, as drinking alcohol at the telecom, purchased 1 disease, etc. from the neighboring convenience store, and then moved the victim to the Macomto the Dobong-gu Seoul on the same day at around 03:35.

At around 04:30 on the same day, the Defendant, while drinking with the victim, has sexual intercourse by putting the victim off the clothes of the victim under the influence of alcohol and inserting the Defendant’s sexual organ into the negative part of the victim.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental condition.

2. Defendant and his defense counsel’s assertion

The Defendant had sexual intercourse in accordance with the agreement with the victim. The victim was not in a state of mental disorder at the time of the sexual intercourse, and the Defendant was not aware of the fact that the victim was in a state of mental disorder.

3. Determination

A. Relevant legal principles

The facts charged in a criminal trial must be proved by the prosecutor, and the judge should be convicted with evidence having probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, the defendant should be judged in the interest of the defendant even if there is doubt as to guilt (see Supreme Court Decision 2005Do767, Apr. 15, 2005).

B. Specific determination

In light of the following facts acknowledged by the evidence duly adopted and investigated by the court or the circumstances that can be known therefrom, it is difficult to believe that the victim’s investigative agency and legal statement that conform to the facts charged in the instant case are difficult to believe (the defendant’s statement is more believed) or the victim stated that his/her memory is lost after the fact, and other evidence submitted by the prosecutor alone is insufficient to recognize the facts charged in the instant case.

1) The background leading up to the Defendant and the victim's becoming the victim

A) After becoming aware of about one year prior to the date of the instant case, the Defendant and the victim obtained text messages using the Kakao Stockholm, a smartphone hosting display, one-year period from the date of the instant occurrence, and then the text messages were sent to the Defendant and the victim during the liaison period.

B) The Defendant and the victim once again exchanged text messages through Kakakao Stockholm, one week prior to the date of the instant case. From April 23, 2019 to April 17:52, the Defendant and the victim exchanged their opinions on specific remaining places or time.

C) The Defendant was aware of the fact that the victim was operating the LBC through text messages, etc., and, if friendly with the victim, the Defendant was aware of the fact that the victim was working the LbC, and, if friendly with the victim, the Defendant was able to receive economic support, such as money

D) On or after 02:00 of the new wall that ends the business of the Victim’s Operation, the Defendant met with the Victim, and the Victim moved to the vicinity of the Chykao Amera text message, and completed the Lbaf business, and first met with the Victim on April 24, 2019.

2) Circumstances leading up to the entry of the EelF

A) The Defendant and the victim got out of the restaurant immediately after the passage and moved to the vicinity of the G Station by getting out of the taxi. The Defendant, after getting out of the taxi, purchased a liquor 1 disease and a beverage 1 disease from the taxi with the victim, putting them into a vinyl wing place, and entered into Eel where the convenience store was located near the convenience store on April 24, 2019.

B) According to CCTV images taken from the Eel, it is confirmed that ① the head of the Defendant who enters the Eel and settled the price at the office counter following the Defendant’s entrance into the Eel, ② the head of the Defendant, who was followed by the Defendant’s rear, immediately sees the form of the Defendant who settled the price by sticking both descendants, ③ the victim walked the 5th floor corridor following the Defendant’s rear, moved to the front of the Fhogate, and enters the door of the visit opened by the Defendant.

C) It is not confirmed whether the victim was unable to hold his body until the victim got off the Defendant’s body or off the EcomF, or was frightened by the Defendant’s father, or the victim was frightening into the her motherel.

3) The degree of victim's drinking, etc.

A) On April 27, 2019, the victim stated that the level of drinking alcohol on his own alcohol and the degree of drinking on that day at the H Center stated that "n't 4-5 illness is so small that she dn't drink 2 disease before 2: she dn't dn't her smallest disease; she dn't her dn't fn't her half or more disease in her motherel (the level of 2-3 n't her dn't dn't her dn't sn't her to the judicial police officer's question on June 18, 2019 that "the degree of drinking alcohol on the preceding day is the degree that she became aware of all the memory." The maximum drinking alcohol is 4-5 n't a small amount of 2 ben't ben't sn't.

B) On January 31, 2020, the victim made a statement to the effect as above with regard to the volume of alcohol on the day or level of alcohol. On the part of the victim's blood and urine appraisal, the victim's blood alcohol concentration was measured at 00.102% on the surface of the body, and it was 03:00 on the surface of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body.

C) In addition to the fact that the Defendant and the victim drinked the alcoholic beverages or beverages purchased at the convenience store immediately after the Defendant entered the EcomF, and divided the victim’s experience in residing in a foreign country or dialogue on a social gathering, etc., the victim’s statement or blood alcohol level alone was under the influence of alcohol to the extent that the victim was unable to be perceived at the time of the sexual intercourse with the Defendant. It is insufficient to recognize that the victim was locked at the time of the sexual intercourse with the Defendant. Moreover, there is no other obvious cause or circumstance that may cause the victim to be in a state of mental disorder or failing to resist at that time.

4) Circumstances at the time of gender relationship

A) After the victim from the instant telecom, at around 10:30 on April 24, 2019, the victim went to the instant telecom, and lost his mind. At the same time, at the time of the instant telecom, the victim submitted a written petition stating that “I would have been imprisoned, and that I would have been suspected of being satisfy and satisfy,” and that “I would like to be satisfy and satisfy,” the victim later stated that I would like to drink the alcohol to the investigation agency and this court, and that the situation at the time of sexual relations was entirely unsatisfy, and that I would like to not explain the specific reasons and circumstances where I would have lost their mind even after drinking alcohol more than the ordinary confisfy and having lost their mind.

B) After entering an investigative agency to this court, the Defendant consistently and specifically stated the content of the conversation between the Defendant and the victim, situations at the time of sexual intercourse, specific sexual conduct methods, etc. The Defendant stated as follows: “At the time of sexual intercourse, both of the victim’s chest was prompted;” and “consected with the Defendant’s appearance on the chest side of the victim’s chest as a result of genetic or legal chemical assessment; or the Defendant’s appearance was not detected from the victim’s quality contents. Furthermore, the Defendant stated as follows: “If the Defendant was 5 to 6 times after inserting inserted, the victim would be cut off.” (ii) The Defendant complained of the Defendant’s pain from the time of submission of the first authentic statement, but the Defendant’s credibility and credibility in the noise observation at H center on April 24, 2019 to the right side of the victim and the Defendant’s 15cm in the noise observation in order to support the victim’s credibility and credibility in the noise observation.

5) Circumstances after gender relations

A) After having sexual intercourse with the victim on April 24, 2019, the Defendant got married with the victim on or around 07:02 on April 24, 2019.3), from around 08:41 of the same day, the victim sent the victim a Kakao text message to the Defendant from around 08:41 to around 08:41 of the same day, (i) the victim called the “influence,” (ii) the “influence,” (iii) the “influence,” (iii) the “influence,” (iv) the “influence,” or (v) the “influence,” and (v) the Defendant did not receive any answer from the Defendant).

나) 피해자는 2019. 4. 24. 앞서 본 바와 같이 사진 촬영이 의심된다는 내용의 진정서를 제출하였고, 2019. 4. 27. H센터에서 '정말 일어나자마자 딱 생각이 사진, 이 생각밖에 안 났다', '신고한 건 사진 그런 거 때문에'라고 진술하였으며, 2020. 1. 31. 이 법정에서도 '솔직히 성폭행 그건, 나도 성인이고 걔도 성인이고, 어쨌든 같이, 머리 끌려서 들어간 것도 아니고 같이 간 거고, 그날 아침 너무 염려되었던 건 사진이나 동 영상 그런 거였다'라고 진술하였다.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Young-young

Judges Yoon Jong-chul

2) On June 6, 2019, the Defendant initially conducted an investigation at the female juvenile investigative department of the Seoul Regional Police Agency, and stated as above. At the time, the Defendant appears to have failed to know the content of the victim’s petition or the H center’s childbirth and the content of the opinion.

3) In the investigative agency and this court, the Defendant suspended the sexual intercourse with the victim’s appearance during the sexual intercourse. On the other hand, the Defendant thought that the victim was 's truth' and the victim was scarked by the end of the fact that there was no container from the victim, and that the victim was her first confirmed the fact that he did not have the contact.

4) The content of the victim’s petition or the content of the text message as seen earlier seems to have been written in the situation where the victim was suspected of having taken photographs, and the victim did not contact with the Defendant. Even if the victim’s statement that the Defendant had no memory with respect to sexual intercourse is not false, the possibility of loss of memory may not be ruled out (the time the victim spawns the amount much less than the ordinary level at the time, but the victim’s blood alcohol concentration did not amount to 0.102% as seen earlier).

5) The Defendant stated that, while going through the telecom, the text message was received by the Defendant, and according to the victim’s photograph (Evidence No. 14 pages) submitted to an investigative agency, the Defendant appears to have shown “I” in front of each of the above dialogues of the victim, and the Defendant’s above statement appears to have been true.