2016Gohap873 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape)

2016. Before maturity34 (Joint Attachment Orders)

Claimant

A

Orscop (prosecutions) and Kim Jong-sung (Trial)

Attorney B

January 20, 2017

The defendant shall be innocent.

The request for the attachment order of this case is dismissed.

1. The facts charged in this case and the facts constituting a claim for attachment order;

[Facts of Prosecution]

Around 20:00 on July 18, 2015, the Defendant and the person subject to a request to attach an attachment order (hereinafter referred to as “Defendant”) drink drinking together with the Victim F (the name, credit, 16 years of age) known through NVV’s “E” camera, an Internet site, in the Defendant’s dwelling in Gwanak-gu, Seoul Special Metropolitan City, at the beginning of the same month, at the Defendant’s 308 domicile. The Defendant and the person subject to a request to attach an attachment order (hereinafter referred to as “Defendant”) went through drinking together with the Victim F (hereinafter referred to as the “E”), which was known by NVV’s Internet website, at the Internet site of the Defendant’s dwelling in the same month. The Defendant and the victim under the influence of alcohol demanded a sexual relationship with the victim, who was placed on the part of the victim’s body and was rejected by taking the victim’s hand, and exceeded the victim’s panty, thereby preventing the victim’s body from inserting into the victim’s port.

Accordingly, the defendant raped the victim who is a child or juvenile.

[Fact of Grounds for Filing Requests for Attachment Orders]

In light of the following: (a) the Defendant did not appear to have committed rape against a victim, who is a child or juvenile; (b) the Defendant did not appear to have committed a crime; and (c) the result of the evaluation of the PC-R, which lacks the ability to take responsibility for the act; and (d) the likelihood of recidivism is high in light of the fact that there is a dynamic tendency and lack of behavioral control. Therefore, the Defendant requested an order to attach an electronic device to the Defendant pursuant to Article 5(1)4 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders.

2. Defendant and his defense counsel’s assertion

The defendant has sexual intercourses under the agreement with the victim at the time and place specified in the facts charged, and there is no fact that the defendant has been raped by suppressing the victim's resistance by taking the hand of the victim who has refused to engage in sexual intercourses and taking the body of the victim by his own body.

3. Facts of recognition;

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

A. On July 2015, 2015, the Defendant residing in Seoul and the victim, who was enrolled in the Seoul metropolitan high school, was first known through the NAV 'E' car page, and the victim sent contact to the Seoul metropolitan during the vacation period.

B. Around 18:20 on July 18, 2015, the victim was enrolled in Seoul, and around 18:20 on the same day, the Defendant met in the studio room of the Defendant located in Gwanak-gu in Seoul Special Metropolitan City. The Defendant and the victim got to the Defendant’s studio after a beer and 2 disease in the convenience store.

C. The Defendant and the victim, who entered the studio of the Defendant, dice together with drinking in a computer. After that, the victim was unable to enjoy the Defendant’s scam by “10 minutes after a 10-minute scam,” and “10 minutes after the 10-minute scam

D. The Defendant stated that the Defendant would be faced by “the victim,” and that the victim would be called “the victim,” and that the Defendant was placed on the bed from the victim who was on the bed. At that time, the Defendant was called “the victim,” “Ilna?” and the victim respondeded to “the victim, who is fine,” “the victim,” and “the victim,” respectively.

E. After that, the Defendant and the victim were sexual intercourses, and immediately after that sex relationship, the victim was able to enter the toilet and brupt it again in the bruent state.

F. The Defendant stated that the Defendant would be friendly to the victim who was in her beds, and the victim her frighted to the fright in Seoul, boarding a taxi and going to the fright home in Seoul.

4. Determination

A. There are the victim's legal statement, one video record CD (Evidence No. 19) as evidence concerning the facts charged in the instant case, each of the police statements against the victim, each of the recording records, criminal complaint, opinion opinion, statement statement on the victim's cell phone telephone call, and statement on the request for appraisal (National Science Investigation Research Institute of Korea).

B. However, the statement of the victim's cell phone call is prepared on the basis of the victim's statement, and it is not meaningful as an independent evidence. The statement of the victim's cell phone call contains letters sent before and after the maturity of July 18, 2015, the victim's statement and the defendant's statement, and the statement of the victim's statement that the victim's sexual intercourse is observed in the victim's panty, and the victim's sexual intercourse is detected. Thus, in this case where the defendant asserted that he had sexual intercourse with the victim, each of the above evidence is not directly related to the facts charged that the defendant raped the victim. Ultimately, the evidence that the defendant raped the victim as described in the facts charged is contained in the victim's statement, the victim's video statement (Evidence No. 19), each police statement of the victim, each reading statement of the victim, each reading statement of the victim, and the victim's statement of the victim.

In a case where the defendant strongly denies the facts charged and the direct evidence consistent with the facts charged in the record is the victim's statement, and the remaining evidence is merely hearsay evidence based on the victim's statement, in order to find the defendant guilty of the facts charged, the victim's statement is required to have high probative value so as to be sufficient to doubt about the truth and accuracy of the statement. In order to determine whether the defendant has such probative value, the victim's own rationality, consistency, objective reasonableness, as well as personal factors, such as the victim's sexual character, should be comprehensively taken into account (see Supreme Court Decision 2011Do16413, May 10, 2012). Meanwhile, the prosecutor bears the burden of proving the facts charged in the criminal trial, and the conviction of the defendant must be based on evidence with probative value, which leads to the judge's conviction that the facts charged are true beyond a reasonable doubt. If there is no such evidence, even if there is no doubt as to the defendant's guilt, the defendant's profits should be determined as the defendant's profits (see Supreme Court Decision 20136Do1646.

C. Each statement in the police of the victim, the prosecution, and this court was raped by the defendant by taking the hand of the victim who refused to engage in sexual intercourse at the time, time, and place indicated in the facts charged, and by taking part in the body of the victim, etc., leading the victim to suppression of the victim’s resistance.

However, in light of the following circumstances revealed by the above facts of recognition and the evidence duly adopted and examined by this Court, it is difficult to view that the victim’s above statements have probative value to the extent that there is little room for doubt about the authenticity and accuracy of the statement.

1) The consistency of the statements made by the victim

On July 23, 2015 and August 5, 2015, the victim made a statement to the police on March 4, 2016, to G of the Prosecutor’s Statement Analysis Officer (hereinafter “Statement Analysis Officer”) and in this court on August 18, 2016, to each of the damaged facts. Each of the victim’s statements is in conflict with his/her own statement, is against his/her common sense, and is against the victim’s statement, and its contents are specified after the lapse of time, so the credibility of the victim’s statement is doubtful.

A) Statements concerning the circumstances of sexual intercourse

On July 23, 2015, the victim stated to the effect that the defendant was unable to take the victim's left hand on one hand, and that he was placed in the victim's sound part (Evidence No. 20 pages) after putting the victim's panty, and putting the Defendant's sexual organ into the victim's sound part (Evidence No. 20 pages). However, while she was getting on and off a taxi, she was kid on the wall, she did not kid on the 5th chest, and she did not kid on the 5th chest, and she did not kid on the 5th chest, and she did not kid on the 5th chest, and she stated that she was kid on the 5th chest, and she did not kid on the 5th chest, and she did not her chest on the 8th chest, and she did not her on the her chest.

However, while meeting the statement analysis officer on March 4, 2016, the victim made a statement to the effect that "the victim saw the atmosphere before the defendant had a sexual intercourse with the victim before her sexual intercourse with the victim, was completely cut off the victim's primary skin, and the victim saw her chest by inserting his finger into the brode of the victim's brogate, let the her breast, let the brogate down the brogate, let the her breast, let the defendant her finger into the panty, her finger, and her finger into the part of the victim's panty, and then put his finger into the part of the victim's panty" (Evidence record 297-305 pages), but on August 18, 2016, the victim made a statement to the effect that the defendant spawn or her finger out the part of the victim's son, like the police statement, as the victim made by the defendant, and that the son did not have any her finger.

The circumstances surrounding the background leading up to the gender relationship between the defendant and the victim are very important parts in close relation with whether the victim has refused the gender relationship with the defendant, and the attitude and degree of assault used by the defendant, but it is not consistent with the statements made by the victim concerning this part.

B) Statement on the process of gender relationship

On July 23, 2015, the victim got off the body and her hand, "I am off with the upper part of the body, with the upper part of the left part of the body, and am off with the other hand, I am off with the panty. I am out with the upper part of the body, but am off with the upper part, and "I did not am off with the male force", and "I am off with the upper part of the chest," and continued without the lubing 5 to 6. So, I am "I am off with the upper part of the body," and "I am off with the upper part of the body," and am off with the upper part of the body of the defendant, it was hard to see that I am out with the upper part of the body of the defendant before am out with the upper part of the body of the defendant, and am out with the upper part of the body of the defendant, and it was hard to see that I am out with the upper part of the 2.

In addition, the victim stated that "I am while I am on the agenda, I am on the spot, I am on the spot (on the left hand) and continue to come, I am on the spot, and I am on the spot that I am on the spot, I am on the spot (Evidence No. 188) and "I am on the middle, I am on the spot, I am on the first day, I am on the part, I am on the first day, and I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the back, I am on the part of the victim's sexual relationship." (Evidence No. 189)

C) A statement embodied after the lapse of time;

피해자는 2016. 3. 4. 진술분석관과 면담하면서 "이제 아침에 이제 그때 손 막잡았다 했었잖아요. 근데 일어나보니까 제 손목이 이렇게 완전 부어있는 거예요.", "그래갖고 부어있긴 했는데 며칠 후에 가라앉아 갖고 따로 병원 가거나 그러진 않았는데, 부어있더라고요, 일어나보니까 (증거기록 292~293쪽), "아, 그때 이제 하면서 생각해보니까 손을 잡기는 잡았었어요. 그런데 계속 손으로만 잡은 게 아니라 이제 말했잖아요, 덩치가 좀 있었다고. 그러다 보니까 이제 좀 몸으로, 몸을 뭐라 해야 되지? 손으로만 이렇게 한 게 아니라, 잡은 게 아니라 몸을 이제 위로 이렇게 올라왔고, 이렇게 가만히 있게 하고... 예, 그랬어요."(증거기록 316쪽), "이제 손 이렇게, 계속 이렇게 연, 잡을 수 없으니까 그때 이제 몸으로 해가지고 이제 한 손으로 안 되면 몸으로 해가지고 그런 식으로 했던 것 같아요"(증거기록 317쪽), "아니, 그러니까 그때 넣으면서 이제 그냥 몸으로 이제 저지시킨 것 같으니까. 예를 들면 이렇게, 제가 이러고 있으면 만약에 손을 치려면 (왼쪽 손을 오른 쪽 어깨에 올려놓으며) 이러고, 이러고, 그러니까"(증거기록 329쪽), "이렇게, 그니까 말했잖아요. 이렇게 올라와가지고 그러니까 (오른 손으로 왼쪽 어깨를 잡으며) 어깨를 이렇게 잡았다고, 그러니까 이런 식으로 손을..."(증거기록 331쪽), "발로, 그러니까 발로 이렇게. 그러니까 위에, 몸이 위에 있잖아요. 그러니까 발로 치고도, 발로 치거나 손으로 계속하고, 그러니까 그랬었잖아요. 그래도"(증거기록 326쪽)라고 진술하고, "발은 처음 나왔는데, 발로는 쳤어?"라는 진술분석관의 질문에 "네. 그러니까 그냥 몸은 계속 이렇게 뒤척이면서...", "아니, 뭐 이러고 있으면 그냥 막, 이렇게 몸이 이렇게 있으면 (발 구르는 소리) 이런 식으로 계속해도"(증거기록 326쪽), "짜증나갖고 그냥 '제발 그만하라', 그런 식으로 좀 진짜 욕하면서 그랬었어요"(증거기록 333쪽)라고 진술하고, "손으로 할 때는 어떻게 했다 했지?"라는 질문에 "그때도 욕하면서 이제,"(증거기록 334쪽)라고 진술하여, 피고인이 잡은 피해자의 손목이 며칠 간 부어 있었고, 피고인이 피해자의 손목을 잡은 것 뿐 아니라 피고인의 몸으로 피해자의 몸을 누르고, 피해자의 어깨를 손으로 잡아 피해자가 움직이지 못하게 하는 등 피고인이 피해자를 폭행한 상황과 피해자가 발로 피고인을 치고, 피고인에게 욕을 하는 등 피해자가 피고인에게 저항한 상황에 관하여 경찰에서의 진술보다 구체적으로 진술하였다. 그런데, 위와 같이 피해자가 진술분석관에게 한 구체화된 진술 내용은 피고인과의 성관계 직후에 한 경찰 진술 당시에는 언급하지 않은 사항들인 점, 그럼에도 피해자는 본 건이 있은 지 약 7개월 후에 진술분석관에게 피고인의 폭행과 피해자의 저항에 관하여 자세히 진술한 점 등에 비추어 보면, 위와 같은 피해자의 진술은 이를 그대로 믿기 어렵다.

2) On the following day after the victim's sexual intercourse with the Defendant, the victim discovered out that the victim's outer spanty is being asked to the victim's panty, and the victim asked the victim whether the victim was asked to the panty. After that, the mother of the victim discovered that the victim did not wear the panty, and asked the victim to commit rape.

In addition, on July 23, 2015, her mother claimed rape of the Defendant (the 23th page of the evidence record). The victim stated that “I am her mother under the police investigation without immediately talking about the facts damaged,” and that “I am her mother was unable to speak because I would like to do so,” and on August 5, 2015, I stated that “I am her mother was able to ask questions about whether I want to punish the Defendant at the police station, and that I am her mother was off and her mother was off and her mother did not want to do so.” In addition, I stated that I am her mother’s statement and her mother’s statement to the effect that I am her mother was off and her mother’s statement to the effect that I am her mother was off and her mother’s statement to the effect that I would like to have been off, and that I am her mother’s statement to the effect that I would like to do so.

3) Details of replies by professional examiners

With respect to the police statements made by the victim, the professional examiners H of this court presented opinions that the credibility of statements made in the course of interview with the statement analysis officer is low, on the grounds that: (a) the part concerning the defendant's assault and resistance against the victim is inconsistent with the logic of logic and common sense; (b) the part concerning the defendant's assault and resistance against the victim's sexual intercourse is omitted; (c) the emotional expression as the victim of rape is inappropriate; (d) the consistency of statements is inappropriate; (e) the investigator's questioning is insufficient; and (vi) it is difficult to eliminate the possibility that a female student who made a statement about sexual experience is not able to lead the statement about sexual experience; and (f) the statement made in the course of interview with the statement analysis officer is inconsistent with the above police statement.

D. Therefore, the evidence presented by the prosecutor alone is insufficient to acknowledge that the facts charged in the instant case where the Defendant raped the victim without any reasonable doubt, and there is no other evidence to prove the facts charged in the instant case.

5. Conclusion

Therefore, the facts charged of this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the defendant is acquitted pursuant to Article 9(4)2 of the Act on Probation and Electronic Monitoring, etc. of Specific Offenders, the request for the attachment order of this case is dismissed. It is so decided as per

The presiding judge shall be changed.

Judges Kim Gin-han

Judges Park Jong-ok