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(영문) 서울고등법원 2020.06.30 2020노388

유사강간

Text

The prosecutor's appeal is dismissed.

Reasons

1. In light of the gist of the grounds for appeal (the factual error) that the victim gives specific statements that cannot be said to have been experienced without direct experience, etc., the victim’s statement that corresponds to the facts charged in the instant case may be believed.

Unlike this, the lower court erred by misapprehending the legal doctrine on the facts charged of this case.

2. Judgment on the prosecutor's assertion of mistake of facts

A. In light of the fact that the victim’s statement concerning the facts charged is relatively specific, and the victim sent a text message to the defendant around May 2, 2017, stating that “the sexually indecent act should be cut off,” and the victim was consulted with F consultants around October 2017 about this case, it is doubtful whether the defendant was committing the same crime as the facts charged in the instant case. 2) However, in light of all the circumstances acknowledged by evidence duly adopted and investigated in the lower court (the first instance court) and the first instance court (the appellate court), there is insufficient evidence of the facts charged in the instant case (the similar rape into the victim).

We do not accept the prosecutor's assertion that the defendant's crime of similar rape as stated in the facts charged cannot be seen as proved.

If any judgment of the court of original is supplemented or added, the following:

B. 1) The key part of the instant facts charged is that “The credibility of the victim’s statement on the key part of the instant facts charged is as follows: (a) the core part of the instant facts charged is that “the victim’s head of the victim who was refused by the Defendant was placed in the victim’s entrance, and the Defendant’s sexual organ was subdivided into the victim’s entrance

However, as pointed out by the court below, the victim's statement in the court below as to this issue is different from the victim's statement in the investigation agency.

(b) the injured party.