[성폭력범죄의처벌및피해자보호등에관한법률위반(13세미만미성년자강간등){인정된죄명:성폭력범죄의처벌및피해자보호등에관한법률위반(친족관계에의한강간등)}·청소년의성보호에관한법률위반(청소년강간등,공소기각){인정된죄명:성폭력범죄의처벌및피해자보호등에관한법률위반(친족관계에의한강간등)}·성폭력범죄의처벌및피해자보호등에관한법률위반(친족관계에의한강간등)][미간행]
Defendant
Defendant and one other
Freeboard Kim
Attorney Cha Sung-sung (Korean)
Seoul Western District Court Decision 2005Gohap22 Delivered on June 9, 2005
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for five years.
The 136-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence.
Two (No. 1) seized Rono tape shall be confiscated.
1. Summary of grounds for appeal;
A. Defendant
Although the Defendant did not rape the victim at all, the lower court erred by misapprehending the fact.
(b) Prosecutors;
The lower court dismissed the prosecution on the violation of the Act on the Protection of Juveniles against Sexual Abuse (Juvenile Rape, etc.) in the lower order of May 2001 and April 2002 by misapprehending the legal doctrine on the legal representative’s independent right to file a criminal complaint.
2. Determination
A. Judgment on the defendant's assertion
Although the victim was 198's age, the contents of his statement are very specific and detailed, consistent with the explanation of the situation, the statement is deemed to be reliable as there is no director in the expression, and the statement of Nonindicted Party 1 and the protocol of seizure of police also conforms to this. On the other hand, with respect to the advance donation treatment and injection that were seized in the defendant's house air condition condition while the defendant was purchased at around April 2002, before his divorce with Nonindicted Party 2, the police made a statement that the aforementioned advance donation treatment system was not used after its divorce with the victim around 199, but it was proved that the above advance donation treatment system was manufactured on October 22, 2003, and that it was not consistent with the victim's statement in the prosecutor's office or the record of seizure of police officers. In full view of the fact that the defendant made a statement that there was no date of purchase, but it was no consistency between the victim and the victim's statement in the court below and the defendant's statement that it was impossible to obtain it from the prosecutor's office.
B. Ex officio determination
A prosecutor shall change the applicable provisions of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Rape, etc. with Minors under 13) and the violation of the Act on the Protection, etc. of Juveniles from Sexual Abuse to "Violation of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims (Rape, etc. with Relatives)" from among the facts charged at the trial, to "Article 7 (1) of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims from Sexual Abuse," and Article 297 of the Criminal Act, respectively, and applied for amendments to the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims from Sexual Abuse to "Rape, etc. with the minor victims under 13 years of age" among the facts charged, and applied for amendments to the Act on the Punishment, etc. of Sexual Crimes to "Rape with the minor victims under 13 years of age" and "Rape with the victim who is a female juvenile," and as a result of this court'
3. Conclusion
Therefore, without examining the prosecutor's assertion, the judgment of the court below is reversed ex officio pursuant to Article 364 (2) of the Criminal Procedure Act, and it is again decided as follows.
On September 14, 2002, the defendant was divorced from the non-indicted 2, and was living with himself. On April 9, 200, the defendant entered into a fostering contract with the non-indicted 5, Brerker, the only legal representative of the victim (n't., China, China: the child of February 6, 198), who is the mother of the non-indicted 1, to the effect that "the defendant adopted, rear the victim, provide necessary support, such as education, etc., and the victim must live together until the death of the victim," and then, the defendant was living together with the victim in Korea. On April 9, 2002, the victim was reported as the natural father born on January 18, 198 between the defendant and the non-indicted 2.
1. On September 23, 200, at around 23:00, at the dwelling room of the defendant of the second floor of the detached house located in Seoul (detailed address omitted) around the second floor, the person locked by suffering a reflector shall prevent the victim from having sexual intercourse with his/her body, boom the victim's resistance with his/her body, restrain the victim's resistance, cut off the victim's half- and panty with another hand, fright the victim's bridge over his/her shoulder, cut off the victim's panty, cut off the victim's bridge over the defendant's shoulder, cut down the victim's will, cut back his/her sexual organ over the defendant's shoulder, sexual intercourse with the victim's sexual organ taken out at the same place at the beginning of January 23:00, 201, and rape him/her once in the same manner at around 23:00, respectively;
2. On May 200, at around 23:00 on the second day of May 2001, in the room of the defendant's residence in the apartment floor of a single house located in Seoul (detailed address omitted), as in the victim's refusal to do so, "to extend" is a threat to the victim's hand that he does not want to do so by hand, biffs the victim's body, divided the victim's resistance into the victim's body, cut off the victim's upper and lower part of the victim's body, biffs the victim's bridge over the defendant's shoulder, biffs the victim's bridge over the victim's shoulder, sexual intercourse, and rape on the first day of April 200 and at around 23:00 on the same place as of the first day of April 200, each de facto raped the victim, and:
3. At around 23:00 on April 2002, at the same place, at around 23:0, at the same time as the lower end of 2002, the victim made a threat to the victim’s refusal to take the victim’s “at all times,” and booms the victim’s body, booms the victim’s resistance, booms the victim’s clothes over the victim’s shoulder, takes the victim’s legs over, rapes the victim’s legs over one time, and sexual intercourses the victim at the same place at around 23:0 on the date of the lower end of 200 and around 23:00 on the same day, each raped the victim in the same manner.
1. Each statement that conforms to the facts set forth in the judgment of the court below by Nonindicted 6, Nonindicted 1, Nonindicted 5, Nonindicted 8, and Nonindicted 9
1. Each statement that conforms to the facts stated in the judgment in each of the prosecutorial statements against Nonindicted 5, Nonindicted 6, and Nonindicted 7, Nonindicted 8, Nonindicted 1, and Nonindicted 9
1. Statement consistent with the facts stated in the police seizure record and list;
1. A copy of a resident population registration card, a copy of a female child care contract, a copy of a letter of civil conciliation, a copy of a resident population registration slip, each investigation report (refesing articles, standards, and photographs), and descriptions and videos consistent with the facts set forth in the ruling in the articles seized;
1. Article applicable to criminal facts;
Articles 7(1) and (5) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof, and Article 297 of the Criminal Act
Article 3 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof: Article 7(1) of the Act on the Punishment of Sexual Crimes and Article 297 of the Criminal Act
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 with punishment prescribed in the Act on the Punishment of Sexual Crimes and Protection of Victims (Rape, etc. in Connection with Relatives) on November 2, 2002 with the largest judgment of the court below]
1. Calculation of days of detention;
Article 57 of the Criminal Act
1. Land to be submerged;
Article 48 (1) 1 of the Criminal Act
The Defendant, as a Joseon Women’s Child, adopted a female her age who had been living together with Korea, had repeatedly raped the victim for a period of up to two years. This is a non-human and anti-human crime committed against the victim who is a weak state in all aspects, such as nationality, gender, age, etc., and is very poor and is very serious. Nevertheless, the Defendant denies the Defendant by making another statement according to his/her situation and without being divided. Even if the Defendant was aged over 70 years old, even if the Defendant had no criminal record, considering the aforementioned facts, and all of the factors of sentencing prescribed in Article 51 of the Criminal Act, such as the Defendant’s character and behavior, family environment, and other circumstances after committing the crime, etc., it is reasonable to determine that the Defendant is subject to a more severe punishment than the Defendant, and thus, the sentence shall be determined as ordered by the lower court.
Judges Jeon Soo-ahn (Presiding Justice)