However, the execution of the above punishment is suspended for 4 years from the date this judgment became final and conclusive, and the defendant is ordered to attend the sexual assault treatment lecture for 40 hours.The theft among the facts charged in this case is acquitted.

1. Fraud or violation of the Specialized Credit Finance Business Act;

On June 24, 2017, at around 06:30, the Defendant: (a) discovered the F (tentative name, 22 years of age) under the influence of drinking in the subway platform of 2 lines EV located in Gangnam-gu Seoul, and intended to have sexual intercourse with such female; (b) laid off such female to the taxi and moved the female to the her motherel village located in G while riding in the taxi. At around 07:14 of the same day, the Defendant left the taxi in front of the ○○○○○el located in Dongjak-gu Seoul, Seoul, and took the said F in the said model, and took the her female’s credit card out of the taxi, and took it out from the taxi, and then paid the above F in excess of 5,500 won by presenting the above credit card to the victim without legitimate authority to use, but the Defendant did not have any reasonable authority to use the said credit card. However, the Defendant did not have any reasonable authority to use the said 5,000 won by deceiving the said female’s property interest.

2. Quasi-rape;

After paying the fee for the above room, the Defendant: (a) laid the victim F into the above room 205 room; and (b) 07:30 on the same day, the Defendant exceeded the clothes of the victim who lost consciousness by drinking in the above guest room; and inserted the Defendant’s sexual organ into the part of the victim’s sound. By doing so, the Defendant had sexual intercourse by taking advantage of the victim’s mental disorder or the state of refusing to resist.

Summary of Evidence

1. Defendant's legal statement;

1. Each police statement made to F and I;

1. CCTV video CDs;

1. A report on the occurrence of a crime, quasi-rape, report on internal investigation into CCTV, report on internal investigation (in cases of a taxi in which related persons are aboard), investigation report (in cases of CCTV investigation into mobile routes of interested persons), investigation report (in cases of response to the results of national scientific investigation conducted by relevant persons), response to respective requests for appraisal, investigation report (related to settlement method of the telecom);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 347(1) of the Criminal Act (Fraud, Selection of Imprisonment), Article 70(1)3 of the Specialized Credit Financial Business Act (Unlawful Use of Credit Card, Selection of Imprisonment) and Articles 299 and 297 of the Criminal Act (the point of quasi-rape).

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes concerning quasi-rape with the heaviest penalty)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Order to attend lectures;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Exemption from an order for disclosure and notification;

Considering the overall circumstances such as the benefits expected by the disclosure order or the effect of prevention, disadvantages and side effects expected by the registration of personal information of this case, the following circumstances are comprehensively considered: (a) the proviso to Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; (b) the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the first offender who has no record of punishment for the same crime; and (c) the crime of this case alone, it is difficult to readily conclude that there is a criminal tendency against many and unspecified persons; (d) the victim does not want the punishment of the defendant by mutual consent with the defendant; (e) the person living in a certain dwelling; and (e) the social relationship is relatively clear; and (e) the fact that the registration of personal information alone seems to have an effect to prevent recidivism

In a case where a conviction becomes final and conclusive with respect to the crime of quasi-rape, the Defendant is a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the Defendant is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act. The period for the registration of personal information of the Defendant is 15 years pursuant to Article 45(1)3 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. In full view of the nature of the crimes causing the registration of personal information and the other crimes, the nature of the crimes causing the registration of personal information and the seriousness of the crimes, etc., in this case, it is deemed unnecessary to determine the period for the registration of personal information as a short-term period than the period according to the sentence of punishment

Reasons for sentencing

1. The scope of punishment by law;

From June to June 22

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

(a) Crimes of quasi-rape;

[Extent of Recommendation] General Criteria for the mitigation area of rape (general rape) of Type 1 (at least 13 years of age)

[Special Mitigation] Ad hoc Inspector

B. Fraud

[Extent of Recommendation] General Frauds No. 1 (less than KRW 100 million)

[Special Mitigation] In a case where punishment is not granted or a considerable part of damage is recovered;

(c) Non-establishment of sentencing criteria for offenses of the Specialized Credit Financial Business Act;

(d) Imprisonment with prison labor for a period of not less than one year and six months according to the standards for handling multiple crimes (in cases of concurrent crimes for which the sentencing criteria are set and crimes for which no sentencing guidelines are set, compliance with the lower limit of the scope of the recommended sentence for the crime of quasi-rape for which the sentencing guidelines

3. Determination of sentence;

The Defendant had sexual intercourse with the victim under the influence of alcohol, and acquired pecuniary benefits by illegally using the credit card of the victim. In light of the criminal history and the method of the crime, the crime is not good, and the victim seems to have suffered considerable mental pain. The Defendant’s liability for the crime is not easy.

However, considering favorable circumstances, such as the Defendant’s primary offender, the amount of damage from each of the crimes of this case’s property does not exceed the amount of damage, and the victim does not want the Defendant’s punishment by mutual consent with the victim, and the fact that the Defendant recognized the Defendant’s mistake, the Defendant’s age, character and conduct, environment, details of the crime, circumstances after the crime, etc., the punishment as ordered shall be determined in full view of all the circumstances

The acquittal portion

1. Summary of the facts charged

On June 24, 2017, at around 10:30, the Defendant stolen cash 27,000 won, which is the victim’s possession, from the victim F, in a crepit of eromobur 205 in Dongjak-gu Seoul Metropolitan Government H, under the influence of alcohol by the victim F, and was locked.

2. Determination

A. The facts constituting the elements of a crime prosecuted in a criminal trial are the prosecutor’s burden of proof, and the establishment of facts constituting a crime must be based on strict evidence with probative value, which makes a judge not likely to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to fully reach the extent that such conviction would lead to such conviction, even if the defendant’s assertion or defense is inconsistent or unreasonable, it should be determined in the interests of the defendant. In a case where the victim’s statement that corresponds to the facts charged is practically the sole statement of the victim, in order to find the defendant guilty of the facts charged, the high probative value is required to have sufficient probative value to the extent that there is no room for doubt as to the authenticity and accuracy of the victim’s statement, and when determining whether there is such probative value, the reasonableness, consistency, objective reasonableness, etc. of the victim’s statement should be comprehensively taken into account (see Supreme Court Decision 2011Do16413, May 10, 2012).

B. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court in light of the aforementioned legal doctrine, the evidence alone presented by the prosecutor cannot be deemed as having been proven to the extent that there is no reasonable doubt.

① The Defendant consistently asserts that there was no theft of cash owned by the victim from the investigative agency. The victim’s statement is flexible as evidence that conforms to the facts charged in the instant case. Whether there was actual cash 27,000 won in the victim’s bank or whether the victim was lost or not. The victim made a statement that “the investigative agency had cash 27,000 won in the bank, but no longer fell.” The Defendant did not commit the theft.

② The victim appears to have been in the state of mental disorder due to the drunkenness of alcohol at the time. It is difficult to verify the authenticity of the victim’s statement alone, as to whether the victim had a cash, or whether the victim had already consumed cash. Moreover, if cash was entered a bank, not a wall, it is difficult to eliminate the possibility that the victim under the influence of alcohol was in cash in the process of opening the bank.

③ The Defendant made a confession of each of the above facts constituting a serious crime, and agreed with the victim on each of the above facts constituting a crime. If the Defendant stolen KRW 27,00 in cash, it seems that the Defendant did not dispute over the relatively insignificant facts constituting a crime and agreed with the victim.

3. Conclusion

Thus, this part of the facts charged is judged not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime.

Judges Kim Gin-soo

Judges Kim Gin-young