2014Ma114 Quasi-rape (quasi-rapeive act by compulsion)

A person shall be appointed.

Kim Attempted (Lawsuits) and a new soldier’s office (Trial)

Attorney Sung-sung et al., Counsel for the defendant-appellant

February 6, 2015

A defendant shall be punished by imprisonment for two years.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

The defendant shall order the defendant to attend the sexual assault treatment program for 40 hours.

Criminal facts

On January 26, 2014, the Defendant met the victim A in Daejeon-gu****'s club.

On January 26, 2014: around 24: 05, the Defendant, while drunk in the Seo-gu, Seo-gu, Daejeon, Seo-gu, Seo-gu, Seo-gu, Seoul:*** * the body of the victim, was frightened with the victim, her clothes of the victim, and her chest was cut off, and her chest was prompt. The Defendant continued to insert her sexual organ into the victim’s sexual organ, but did not have a sexual organ.

As a result, the defendant tried to have sexual intercourse with the victim in a state of impossibility to resist, but did not have such intention but did not have attempted.

Summary of Evidence

1. The defendant's partial statement in court;

1. Statement A of a witness in the second protocol of the trial;

1. Each police statement made to A;

1. A written appraisal;

1. The analysis of CCTV in △△, ** CCTV analysis, CD (on-site CCTV data in the instant case);

1. Report on occurrence (thief, etc.);

1. A copy of the sales slip or a Kakaoo ampefagram;

Application of Statutes

1. Relevant Articles of criminal facts;

Articles 300, 299, and 297 of the Criminal Act

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions among the Reasons for Sentencing)

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

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is subject to registration of personal information under the main sentence of Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act

Disclosure Order and Exemption from Notice Order

Where it is determined that there is any special circumstance that the disclosure or notification of personal information should not be disclosed or notified, such as the defendant's age, occupation, risk of recidivism, etc., characteristics of the relevant crime, such as the type, motive, process of the relevant crime, result, seriousness of the relevant crime, etc., the degree of disadvantage and anticipated side effects of the defendant's injury caused by the order to open or notify, the prevention effect of the sex offense subject to registration, and the effect of the protection of victims from the sex offense, etc. (see, e.g., Supreme Court Decision 201Do16863, Feb. 23, 2012).

In light of the above legal principles, it is difficult to conclude that the defendant has no record of punishment for committing a sexual crime, and that there is a danger of recidivism or recidivism in light of the circumstances leading up to the crime of this case. In this case, the personal information registration and participation in the sexual assault treatment program can expect the effect of preventing recidivism by the defendant. In full view of all other circumstances such as the defendant's age, job, family environment, social relationship, etc., the defendant's personal information shall not be disclosed and notified. Thus, it is determined that there is a special reason that the disclosure and notification of the defendant's personal information shall not be ordered pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Articles 49(1) and 50(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse.

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. The Defendant’s ***, along with the victim who first arrived at △, has left the victim’s chest in the △ Domoel, with the victim. However, the Defendant, ******, while dancing with the victim for a long time, and kis the body of the victim, and the victim did not have any state of refusal to resist at the time of the instant case. In addition, the Defendant did not want to have sexual intercourse with the victim by taking advantage of the victim’s refusal to resist, and there was no private road to have sexual intercourse with the victim from the beginning.

B. Furthermore, the Defendant: (a) committed an act by the victim, such as the victim’s omission of kis or chest, and entered her motherel only on the premise that she would be easily aware of such act; and (b) did not attempt to engage in sexual intercourse only with the actual victim on the part of her body contact; (c) therefore, the Defendant’s performance of quasi-rape cannot be deemed as falling under the commencement of quasi-rape.

2. Basic facts

According to the evidence duly adopted and examined by this Court, the following facts are recognized.

A. The victim, around January 26, 2014: 00: around 00, in the Seo-gu, Seo-gu, Daejeon, "**" means that the victim, at the main point of the week, dice, drank by ordering only 1,00 square meters of app soft.

B. The injured party : 03 :00 Na, as well as B,* * Na and neighboring **** * * * * n', so he dn't ma, so much as to be dn't.

C. On January 25, 2014, around 20: 00, the Defendant met with her friend (four persons including the Defendant) and drinked with her friend on January 26, 2014 following the following day after drinking her friend. : 01: 00 friends, and **.

D. The Defendant, while playing together with her natives, **** in the state in which she left her married with her natives (round January 26, 2014: 03:00 on January 26, 2014), her playing on the same day, such as first met with her victim and dancing with her victim: 05:00 with her natives ***.

E. The Defendant, along with the victim from a taxi in the Seo-gu Seoul Special Metropolitan City, was 05:24 on the same day as the “Seoul Special Self-Governing City, Seo-gu, Seo-gu, Seo-gu, Seo-gu.” 1:05 on the same day with the victim from the taxi, and the Defendant was her married her at around 06:00,000 after about 40 minutes. In this process, the Defendant directly paid the her cab and her her her her son by using the victim’s card.

F. At around 12:00 on the same day, the victim was shouldered at a diving, and at the end, reported rape to the police. At around 14:18 on the same day, the Defendant visited the Daejeon Won saw Support Center, but was unable to make a statement under the influence of alcohol. On January 30, 2014, the Defendant made a statement of the fact of injury by visiting the Won saw Support Center and making a statement of the fact of injury.

3. Determination

(a) the meaning of the state of impossibility to resist (related precedents);

Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits an indecent act by taking advantage of the person's mental or physical condition to resist shall be punished together with the crime of rape or indecent act under Articles 297 and 298 of the same Act. In light of the fact that the crime is protected by the law to protect the sexual self-determination right of a person who is unable to defend himself due to mental or physical reasons, and Article 302 of the same Act separately provides for the punishment of a person who has sexual intercourse or indecent act against a minor or a person with mental disability under Article 299 of the Criminal Act, the state of non-performance under Article 299 of the same Act refers to the case where psychological or physical resistance is absolutely impossible or considerably difficult due to the reason other than the mental or physical disorder under Articles 297 and 298 of the same Act (see, e.g., Supreme Court Decision 98Do3257, May 26, 200).

B. Whether the defendant has an intention to engage in sexual intercourse

In full view of the following circumstances admitted by the evidence of this case, it can be sufficiently recognized that the Defendant had a sexual intercourse at the time of making a considerable physical contact with the victim.

1)*** The young men and women have danced with their body, and according to the Defendant’s statement, the Defendant and the victim also *** * * while dancing in her chest and her, and so on. The Defendant and the victim made it easy for young men and women to have their own chest, her, etc.

2)**** * at the time of Na, there was around 05:0 new walls 00, and the Defendant had no money during water. Nevertheless, the Defendant, on the victim’s card, sent the victim a taxi (3,300 won) and the telecoming room fee (50,00 won) with the victim’s card, left the victim who was unable to walk without drinking and went to the telecoming, and her physical contact with the victim, including, but not limited to, the victim’s chest by taking advantage of the victim’s clothes even after the her entrance into the her mouth.

3) The Defendant, without having a sexual intercourse, had a lot of training on the reason why the Defendant went into the her mother and the reason why she came to go to the her 40-minute met with the her woman-friendly Gu, which had been hered, and there was no way to bring about another woman-friendly Gu in addition to the her woman-friendly Gu. Moreover, even if the Defendant thought that her parent should immediately go to the her home before her shouldering, she has stopped from doing her act and her returning home.

In light of all the circumstances, including the defendant's behavior, defendant's age, and health conditions, although the defendant's oral statement was made, it is difficult to understand the above defendant's oral statement in a common sense (it is common sense to view that the victim was unable to engage in sexual intercourse due to other reasons, such as the victim's birth or not the defendant's birth).

4) The Defendant changed from the beginning to the telecom to the telecom without sexual intercourse, but it is difficult to understand the change in light of the above circumstances.

C. Whether the victim was in a state of failing to resist at the time of the instant case, and whether the Defendant was aware of this

In full view of the following circumstances admitted by the evidence of this case, the victim was under the influence of alcohol at the time of this case, and was in the state of not having been able to resist or not having been physically able to resist, or to resist significantly difficult resistance, and at the time, the defendant was fully aware of such circumstances.

1) Statement of the victim

A) The victim consistently stated to the effect that “from the police to this Court, you drink B at the time of the instant case” and drink B at the time of this case ***** * * * * * * * * * * her memory to drink B and dancing. However, the defendant * * * * * ? Do not influencencing in the case of what he was placed in the juteel and △ △.”

나 ) ① 피해자는 이 사건 당일 처음 피고인을 만난 사이로 그 전까지 피고인과 어떠한 관계도 없었던 점 , ② 피해자 측에서 피고인에게 합의금을 요구하는 등 다른 목적이 있다고 보이지 아니하고 , 피해자가 경찰에 피해신고를 하게 된 경위도 자연스 러운 점 , ③ 이 법정에서의 피해자의 진술태도 역시 상당히 꾸밈없고 자연스러워 보이 는 점 , ④ 사건 다음날 피해자가 B과 주고받은 카카오톡 메시지 내용 등을 종합하여 보면 , 피해자의 진술은 신빙성이 충분하다고 판단된다 ( 피고인도 피해자 진술의 신빙성 그 자체를 특별히 다투지는 아니한다 ) .

2) Status of the victim before and after the instant case

A) The form of the victim immediately before the instant case, which was revealed in CCTV images, appears to have been in a state of personnel in a state of influence by drinking.

① 피해자는 * * * * 를 나올 당시 ( 05 : 02경 ) 피고인이 옆에서 부축하지 않으면 제대 로 서 있지 못하였고 , 두 손으로 머리를 감싸고 고개를 푹 숙인 채 똑바로 걷지 못하 고 뒷걸음질치기도 하였다 . 또한 자신의 소지품인 가방을 스스로 챙겨 나오지도 못하 였다 .

② At the time of entering the Do dong-gu, Seoul Metropolitan City (05:22 around) into the telecom, the victim was her by getting his/her fluence, and the Defendant was her hand, leading his/her hand to the telecom.

③ 모텔 안으로 들어와 피고인이 모텔 대실료를 결제하는 있는 동안 ( 05 : 23경 ) 피 해자는 카운터 옆 벽에 몸을 완전히 기댄 채 서 있었는데 , 그러는 동안에도 목을 제대 로 가누지 못하고 휘청거리고 있었고 , 결제를 끝낸 피고인이 방으로 들어가자며 손을 내밀었음에도 손사래를 치는 정도의 행동만 하였을 뿐 고개를 푹 숙인 상태로 여전히 몸을 벽에 기댄 채 서 있었다 .

④ At the time of boarding (05 : 23 : 05) the elevator, the victim was seated because he was unable to walk properly, and the elevator was towed by the Defendant’s hand.

B) The victim** * Mauritius a considerable quantity of alcohol with B before arrival**** * was completely unsatisfying on the subsequent yellow dust, and by the 14th day of the instant case, until the 18th day, the original saw support center was unable to make a statement.

C) According to the circumstances that the victim ***** was found in the cell phone number, and the circumstances that the victim was under the influence of the defendant for the loss and finding of the cell phone number, etc., the victim argued that the victim was under the influence of the defendant was not in the state of failing to resist, but rather in the state of failing to resist. ① The victim was in the absence of the victim’s phone number left in the absence telephone. ② As seen earlier, the victim ********* * was under the influence of alcohol so that he was under the influence of alcohol so that he was unable to resist, the victim cannot be deemed to have not been in the state of failing to resist.

D) In addition, even if the victim actively committed an act in which the victim was aware of and did not have been able to resist, even if he had actively committed an act in which the victim had been aware of, before entering the motel, it is difficult to view that the video confirmed through the Domomo CCTV was the victim actively engaged in the above act. Rather, it seems that the video confirmed through the Domomomoto Domoto was merely an influent response or response to the Defendant’s act while under the influence of alcohol and under the influence of alcohol.

3) Whether the victim consented

A) The Defendant and the victim divided a conversation on the age, occupation, etc. of each other in **** from first in ** in ** in * in * in * in * in * in * in * in * in * in * in *.

B) The Defendant*** along with the victim around the end of the business**** around the end of the business, and even at this time, it seems that there was no talk about the sex relationship between the Defendant and the victim about the telecom or about the sex relationship.

C) The Defendant asserts to the effect that “********?? There was no answer, so how the victim would be the victim after the call,” and that the victim’s movement to the telecom was “the victim’s response,” and that there was the victim’s consent. However, the victim consistently stated that such fact was not memoryd at all, and even if the victim was given the call, it is difficult to view the victim as a conversation divided by the situation where the victim could make a normal judgment on sexual relations, etc. when considering that the victim was bread and was unable to resist, as seen earlier.

D) Therefore, the above conversation alone cannot be deemed to have agreed on the victim’s sexual intercourse with the Defendant, and furthermore, it is difficult to view that the victim in the form of deception gave implied consent to it, even though considering the fact that the young male and female were able to do so while dancing, and that the victim was frequently engaged in such a club, and that the victim was able to do so, ****** even if the victim expressed a sense to the Defendant and responded to it to a certain extent.

4) Degree of the defendant's entry

A) Unlike the victim who was unable to walk properly at the time of the instant case, in light of the Defendant’s behavior revealed in CCTV images, such as saving the victim from the victim’s body and paying the body room fee at the victim’s home, it appears that the Defendant was not in a state of drinking at the time of the instant case (the Defendant-friendly C testified that the Defendant was not the same as the Defendant had taken a large volume of drinking).

B) Therefore, it is difficult to deem that the Defendant did not recognize the victim’s state of impossibility to resist or erroneously determined whether the victim gave consent thereto.

D. Whether the commission of quasi-rape has commenced

As seen earlier, insofar as there was considerable physical contact by the Defendant, as long as the Defendant had had the intent to resist with the intention to have sexual intercourse, such as taking the victim’s chest into the bee part, and taking the victim’s chest into the bee part, it is sufficient to view such Defendant’s act as the commencement of quasi-rape.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment with prison labor for one year and six months to fifteen years; and

2. Determination of sentence: Imprisonment with prison labor for not more than two years and three years of suspended sentence;

The crime of this case is intended to have sexual intercourse with a victim who had been unable to resist under the influence of alcohol. Considering the fact that the crime of this case is not good in light of the applicable law or content, it appears that the victim was suffering from the crime of this case, which led to the occurrence of the crime of this case, that the victim was not able to feel sexual humiliation and the destruction of the victim's sense of sexual humiliation, that the victim did not return back, that the victim was wishing to punish the defendant, and that the defendant committed the crime of this case even though high school teachers demanded high school ethical awareness, there is a need to punish the defendant strictly.

However, there are some circumstances that may be taken into account the background leading to the instant crime, and the primary offender who has no criminal records is considered favorable to the Defendant. In addition, considering all the circumstances revealed in the instant pleadings, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the instant crime, the punishment as ordered shall be determined in light of all the circumstances indicated in the instant pleadings, including the following circumstances.

Judge Yellow-dong of the presiding judge

Judges Cho Jong-soo

Judges Jeong-chul