2013No82 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Commission (or Commission)

A.

Defendant

Simplely Correction (Public Prosecution) (Public Trial) (Public Trial)

Law Firm B

Attorney BA,B

Chuncheon District Court Decision 2013Gohap7 Decided April 4, 2013

October 2, 2013

The judgment of the court below is reversed.

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

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The Defendant did not have sexual intercourse with the victim, and even if having sexual intercourse, did not commit assault and intimidation necessary for the establishment of the crime of rape. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby convicting the Defendant of the facts charged in this case.

(b) Mental illness;

At the time of the instant case, there is room for the Defendant to have weak ability to discern things or make decisions due to mental illness, etc.

2. Determination

The grounds for appeal by the defendant shall be considered ex officio prior to the judgment.

The facts charged in the instant case are crimes falling under Article 5(1) and Article 297 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012; hereinafter the same shall apply) and Article 5(1) of the same Act and Article 297 of the same Act, and the statutory penalty is imprisonment for a limited term of at least seven years, and thus constitutes necessary attorney-at-law pursuant to Articles 33(1)6 and 282 of the Criminal Procedure Act. Accordingly, the instant case may not be amended or examined without the presence of counsel.

However, according to the records, the court below can find the facts that the court below revised and deliberated without defense counsel, and concluded the pleadings and sentenced the judgment. Thus, the court below's trial procedure is unlawful, and the litigation procedure conducted in an unlawful procedure is null and void (see, e.g., Supreme Court Decisions 95Do1721, Sept. 29, 195; 2005Do5925, Jan. 13, 2006). The judgment of the court below was unlawful in violation of the law, which affected the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant on the ground of ex officio reversal, and it is again decided as follows.

Criminal facts

The defendant is the victim C(52 years of age)'s children, and the defendant and the victim do not live together for about 20 years. From around 2010, the defendant and the victim have come to contact again and have come to contact.

At around 20:30 on August 30, 201, at the victim's house located in Asan City D, the Defendant: (a) performed drinking to the victim; (b) performed drinking; and (c) controlled the victim's body by dividing the victim's body by force; (c) forced the victim's resistance; and (d) forced the victim's body to cut off the victim's clothes; (b) forced the victim's body to cut off the victim's clothes; and (c) had sexual intercourse once by inserting the victim's sexual organ into the part of the victim's body.

In this respect, the Defendant raped the victim who is a parent of the mother.

Summary of Evidence

1. The witness C’s statement in this Court;

1. Each statement of the suspect interrogation protocol prepared by the public prosecutor on the accused;

1. All documents, such as meetings for appraisal request, visits to the E Support Center, etc., and the victim's family relation certificate;

Each entry

Application of Statutes

1. Article applicable to criminal facts;

Article 5(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and Article 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Exemption from disclosure and notification;

In light of the proviso to Article 37(1) and the proviso to Article 41(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the first offense committed by a person who is not only sexual assault but also other criminal records), the contents of the instant crime, Defendant’s tendency and attitude, etc., it is difficult to see that the Defendant is in danger of recidivism or recidivism of sexual assault crime, and rather, there are special circumstances that may not disclose and notify Defendant’s personal information due to the side effect in which the victim’s personal information is exposed.

Judgment on the argument of the defendant and his defense counsel

1. Defendant and his defense counsel’s assertion

The defendant and his defense counsel asserted that the defendant did not have a sexual intercourse with the victim at the time of the instant case, and even if he had a sexual intercourse, he did not commit assault and intimidation necessary for the establishment of the crime of rape (the defendant does not have a claim for a mental or physical disability in the trial and does not judge it. Even if the defendant alleged a family relation, it does not appear that he was in a state of mental or physical disability at the time of the instant case).

2. Determination

Whether a perpetrator committed assault and intimidation to establish the crime of rape ought to be determined by comprehensively taking account of all the circumstances, including the use and degree of assault and intimidation in question, the developments leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of sexual intercourse, etc., and the victim was able to escape the scene of the crime before sexual intercourse or the victim did not resist with the intent of sexual intercourse. From an ex post perspective, it should not be readily concluded that the perpetrator’s assault and intimidation did not reach the extent that it was significantly difficult for the victim to resist (see, e.g., Supreme Court Decisions 2005Do3071, Jul. 28, 2005; 2012Do4031, Jul. 12, 2012).

이 사건에서 앞서 채택한 증거들에 의하여 인정되는 다음과 같은 사정, 즉 ① 피해 자는 이 사건에 관하여 “바닥에 앉아있는데, 피고인이 저를 밀어 넘어뜨리고 강제로 저의 바지와 팬티를 벗겼습니다. 피고인이 저의 양팔을 붙잡고 있었기 때문에 일어나 려고 해도 일어날 수가 없었습니다”라고 진술한 점 , ② 이 사건 다음날 피해자가 E 지 원센터에 방문하여 아들인 피고인으로부터 강간을 당하였다고 진술하면서, 이 사건 당 시 입었던 팬티, 질액채취물 등을 감정의뢰했는데, 위 팬티와 질액채취물에서 남성의 정액이 검출되었고, 위 정액의 유전자가 피고인의 유전자와 일치하는 점, ③ 피해자는 위와 같이 유전자검사까지 의뢰한 이유에 대하여 “제가 피고인이 어렸을 때 피고인을 버렸다는 이유로 피고인이 저를 엄마로 안보고 아줌마로 보는 것 같아 괘씸한 마음에 정액을 채취했습니다”라고 진술한 점, ④ 피고인의 체격이 피해자에 비하여 월등히 큰 점 등을 종합적으로 고려하면 보면, 이 사건 당시 피고인이 피해자의 의사에 반하여 피해자와 성관계를 하였고, 강간죄의 성립에 필요한 폭행이 있었음을 충분히 인정할 수 있다.

Therefore, the defendant and his defense counsel's assertion cannot be accepted.

Registration of Personal Information

Where a conviction becomes final and conclusive on the crime of this case, which is a sexual crime subject to registration under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant is a person subject to registration of personal information as prescribed in Article 42 of the above Act and is obligated to submit personal information to the competent agency pursuant to

Reasons for sentencing

1. Sentencing criteria;

【Scope of Recommendation】

From June to June of 3 to May of 5 [the scope of mitigation of punishment among the types of crimes of sex and the types of crimes of rape (a rape in relation to relatives), however, the revision to the lower limit of the punishment by law];

2. Determination of sentence;

The crime of this case is raped by the defendant in order to simply resolve sexual desire for sexual intercourses which have not been mentally transferred, and thus, it cannot be socially accepted and anti-humanistice. Therefore, the defendant is subject to punishment corresponding thereto. However, the defendant has no record of criminal punishment prior to the crime of this case, the victim does not want to be punished against the defendant, and other conditions of punishment as stated in the arguments of this case, such as the age, character, conduct and environment of the victim, motive, means and consequence of the crime, etc., and other conditions of punishment as stated in the arguments of this case, such as the circumstances after the crime.

Oral (Presiding Judge)

Kim Jong-tae

Long-term salary