(영문) 서울고등법원 2016.4.22.선고 2016노146 판결

1) The time when the Defendant paid the victim the price for sexual traffic to the victim is immediately before the Defendant’s vehicle arrives at the construction site, and thus, the victim’s statement that the Defendant received the price for sexual traffic from the Defendant during the operation of the previous vehicle is false. Therefore, the victim’s statement that the Defendant continued to refuse sexual traffic during the operation of the vehicle after receiving the price for sexual traffic in advance is also false.

2) ① Payment time of commercial sex acts, the victim’s statement on the part of the victim, such as the victim’s getting off of his clothes, the degree and appearance of assault, etc., are inconsistent. ② The victim, although the defendant did not know that he did not have resided at the time of sex and did not know that he was 'do-dong' in the vicinity, stated that he induced him to do so, ③ it is difficult for the victim to have again come back to the victim to find out his cell phone in order to avoid rape in light of empirical rule, ④ the victim was trying to commit commercial sex acts, such as moving the victim’s body from his vehicle to the back seat and sticking the sea ): ⑤ The victim’s face or part of the victim’s body at the time of the investigation following the occurrence of the instant case, ② The victim did not have any misunderstanding of facts about the victim’s face and part, ③ The victim did not have any physical rape in light of the victim’s consent to avoid rape or rape in the process of the victim’s bodily rape, and the court below found the defendant was guilty of the victim’s bodily rape.

3) The court below adopted the result of the examination of the false horse detection devices against the defendant as evidence, but the result of the examination of the false horse detection devices cannot be used as evidence in light of the defendant's health condition that was suffering from the heart at the time of the examination. In addition, the part where the defendant recognized the defendant's assault against the victim among the examination protocol prepared by the prosecutor against the defendant is inadmissible since the defendant accepted the plea learning by the prosecutor according to the counsel's advice and led

4) Even if the Defendant attempted to rape against the victim, the injury suffered by the victim during the course of injuring the Defendant does not constitute injury to the crime of causing rape as it is minor to the extent that it does not require any separate treatment. Moreover, there was no probability that the Defendant would have suffered the injury in the course of running away of the vehicle in the state of the victim’s own body and walking away.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) Considering the fact that the victim was a minor under 16 years of age at the time of the instant case, and not only took clothes such as physical exercise, gginging, and post-line business, the Defendant appears to have been aware of the fact that the victim was a child or juvenile at the time of the instant case. Nevertheless, the lower court found the Defendant not guilty of the facts of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (sexual Purchase) and the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) on the ground that there is insufficient proof as to whether the Defendant was aware of the fact that the victim was a child or juvenile at the time of the instant case, thereby affecting the conclusion of the judgment.

B) Even if the Defendant did not know that he was a child or juvenile, so long as the Defendant recommended the victim to engage in sexual traffic, such act constitutes “act of soliciting sexual traffic” under Article 2(1)2(a) of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc., and thus, can be punished pursuant to Article 19(1) of the same Act. Thus, the lower court erred by failing to do so ex officio, even though it found the Defendant guilty of the crime.

2) Unreasonable sentencing

The sentence of the lower court (four years of imprisonment with prison labor for a term of three years) shall be too unhued and unreasonable.

2. Determination

A. Judgment on the grounds for appeal by the defendant

1) The judgment of the court below

The court below asserted that the defendant only tried to have sexual intercourse by agreement with the victim through the passage of conditions, and that there was no assault or intimidation against the victim. The court below acknowledged the credibility of the victim's statement that corresponds to the facts of the crime causing rape in light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, and rejected the defendant's above assertion.

① The victim has consistently, specifically and clearly stated the main part of the instant crime, including the content of the assault exercised by the Defendant from the investigative agency to the court of original instance.

② The victim, who was stopped at the construction site at one night, asked the victim to leave the body of the defendant who was living in front of the road several times, and even if the victim was living in the body of the defendant, he would be able to get out of the road. The defendant, who was living in the front of the driver's seat, was able to change the body of the victim to the top of the vehicle. If the victim was living in a sexual relationship based on the agreement with the victim, he would like to turn out the victim's cell phone before the driver's seat. The victim tried to come out of the victim's cell phone, but it is difficult to get out of the victim's body. On the other hand, the defendant would refuse to get out of the police room, and would not have been able to get out of the victim's body. The defendant would have been able to get out of the victim's body. The defendant would have refused to get out of the police room and would have been able to get out of the victim's face.

④ A victim seems to have never been able to have moved to the above construction site, which is the place where the Defendant voluntarily chosen from the direction of the navigation. Moreover, the victim’s escape from the Defendant’s vehicle around 22:30 and around 00:30 on the following day after about 22 hours after the victim escaped from the Defendant’s vehicle, the police questioning of the victim was initiated. Meanwhile, from the victim’s perspective, the fact of damage caused during sexual traffic was disclosed to the outside, and in particular, it was likely that the parent was known. In light of these circumstances, the possibility of the victim’s planned dismissal is very rare.

⑤ Meanwhile, even if the victim, at the time of attending the police after about two hours as stated in the judgment of the court below, was physically unable to commit the same crime as stated in the judgment of the court below in light of the wide area or structure of the back seat space of the Defendant vehicle, even though the face or the upper part of the neck directly caused by the Defendant’s assault did not remain as much as possible, it cannot be seen as a circumstance contrary to ordinary or empirical rules. In addition, it is difficult to readily conclude that the crime as stated in the judgment of the court below was physically impossible.

2) Determination of the immediate deliberation

A) In order to recognize admissibility of evidence of the result of the examination of the detection device of false horses as evidence, first, a change in a certain psychological condition occurs when false horses are used, second, a change in the psychological condition must cause a certain physiological reaction, third, the biological reaction must meet three conditions that the speech of the person subject to the examination can be determined accurately by the physiological reaction. In particular, the determination of whether the last physiological reaction is false or not shall be a device that can accurately measure the physiological reaction of the person subject to the examination who has consented to the examination of the final detection device, and the technical and method of the examination must be rational, and it shall be possible for the inspector to secure accuracy only if the inspector has the capability to objectively and accurately read the measuring content of the detection device, so long as the same conditions are not met (see, e.g., Supreme Court Decision 2005Do526, May 26, 2005).

The court below seems to have adopted the above notice of the result of the psychological analysis as evidence on the ground that K attended the court of the court of the court below and recognized the authenticity as a witness with respect to the "Notice of the result of the psychological analysis (Evidence 54,55)" (Evidence 54,55) which constitutes the result of the examination of the false oral detection devices. However, the evidence submitted by the prosecutor alone is not clear whether the above notice of the result of the psychological analysis satisfies the above various requirements. Thus, in the court of the party, the court below should determine whether the facts charged were established based on other evidence

B) Time of payment of sexual traffic

On the other hand, the defendant asserted that the victim was paid KRW 120,00 in the vehicle after the arrival of the construction site, as the defendant argued in the first investigation by the police, but the police, the prosecutor's office and the court below consistently stated that the victim was paid the price for sexual traffic at the time of the occurrence of the case. Although the first investigation by the police was conducted immediately after the occurrence of the case, the investigation was conducted at the time of the occurrence of the crime, but the time when the time of the investigation was 2 hours after the occurrence of the crime, the victim appeared to have not yet been a light situation due to the mental shock of the crime causing rape of this case. The victim was merely a simple mentioning that the victim made a statement about the whole progress of the case at the time of receiving the money, but it was relatively detailed in the investigation agency and the court below after that time, and the victim received sexual traffic is also specific and consistent, and the victim is determined to have arrived at the construction site at the time of the defendant's arrival, not at the time after the occurrence of the crime.

Even if the time when the victim was paid the price for sexual traffic arrived at the construction site, the victim tried to return money on the ground that it was not "from the first investigation of the police," and forced to leave his clothes. The victim made a statement that "I want to do so and forced to do so and forced to do so." It is consistent with all statements of the victim in that the victim refused to engage in sexual intercourse while expressing his intention to return the money received in return for sexual traffic before sexual intercourse with the defendant. Therefore, even if the defendant's assertion on the time of payment of the price for sexual traffic was asserted, the victim would return the money received from the defendant and clarify his intention to refuse sexual intercourse, and thereafter, the defendant is recognized to have begun to conduct sexual intercourse by assaulting the victim.

C) The credibility of the victim’s statement

In addition to the following circumstances acknowledged by the evidence duly adopted and examined at the lower court’s holding, the victim’s statement concerning the crime resulting from rape of the Defendant may be sufficiently reliable.

① Among each statement in the victim’s investigative agency and court of the court below, there are somewhat unclear or lack in consistency with the victim’s timing of receiving compensation for sexual traffic from the defendant, the circumstance that the victim was off of clothes, the extent or attitude of the defendant’s assault, etc. However, such contents are generally limited to the part where the victim’s bodily injury caused by rape falls short of direct connection with the crime of rape, or that it is limited to the part where the victim’s initial statement was made in an apartment building without human resources at night, and against the defendant who seeks to commit assault and intimidation within the apartment building constructed without human resources, it is difficult to find out that the victim, who was a minor, was accurately satisfying in his body until the end of the crime committed in an emergency and dangerous situation, was accurately summoned in light of empirical rule. The victim’s overall investigation into this case was conducted four times at the police, one time at the court of the court below, and one time after the court below’s decision, and it is difficult to see that there is a difference in the victim’s initial statement made within six days after the victim’s oral.

② The Defendant alleged that he did not know that he was 'do-dong' at the time of the crime of this case because he did not know that she had resided in the male city and did not know that she was 'Do-dong'. However, considering the fact that the Defendant was residing in the Seoul Metropolitan area for a considerable period including the time when she was enrolled in the university, that Do-dong was an administrative district in the Seoul Songpa-gu and Sungnam-si bordering area, and that Do-dong was an urban accelerating road outside Seoul, decentralization road, decentralization road, west-west-west-west-west-west-west-west-west-west-west-west-west-ray road, and traffic that the Defendant driven the vehicle, the Defendant’s assertion that she was unable to grasp the designated or replaced location of Do-

피해자는 피고인의 차량에서 빠져 나온 후 다시 휴대폰을 가지러 갈 당시의 상황에 대하여 경찰 2회 조사에서는 '(차량에서 빠져나와) 뛰어 내려오는데 그 아저씨가 저를 뒤쫓아 오면서 "내가 미안하다. 잠깐만 기다려보라."고 하면서 제 핸드폰을 손에 들고 "이거 가져가라. 잠깐 와봐라."고 하기에 제가 당시 핸드폰이 급하게 필요한 상황이라 그걸 가져가야 되겠다는 생각에 아저씨 쪽으로 다가갔는데, 그 아저씨가 제왼쪽 팔을 끌어당겨서 저는 또 놀란 마음에 제 손목을 잡고 있던 그 아저씨의 팔을 쳐 내고 하니까 핸드폰을 들고 있던 다른 손까지 합세해서 저를 계속 잡아끌려고 해서 또 팔을 계속 흔들고 쳐내는 과정에서 핸드폰이 바닥에 떨어져 그걸 집어들고 엄청나게 빠른 속력으로 공사장 아래쪽으로 내려갔다. … 그곳이 어둡고 사람도 없고 해서 그 아저씨에게 잡히면 안 될 것 같고 다른 사람에게 연락할 방법도 없고 신고도 할 수 없다는 생각에 휴대폰은 필요하다. 누군가에게 연락을 하던 신고를 하던지 해야 될 것 같은 생각이 들어 무섭고 두려웠지만 핸드폰을 가져와야 되겠다는 생각에 그 아저씨에게 다가갔던 것입니다.'라고 진술하였고, 검찰 조사에서는 '아저씨가 이렇게 흔들었어요. 제 휴대폰 가지고 가라고. 그래서 제가 진짜 그 몇 초, 그 시간에 머리 터질 것같 이 엄청 많은 생각을 했어요. 내가 왜 저 핸드폰을 가지고 왔다는 사실을 … 여기서 죽는 거 아닌가. 여기서 그냥 간다. 그냥 가다 내가 저 아저씨한테 잡힐 확률이 얼마나 되나. 일단 지금 누군가에게 알려야 되는데 알릴 방법도 없지. 여기서 빠져나와도 도움을 요청할 수 있는 방법도 없지. 어떻게... 일단 죽기살기로 다시 핸드폰을 가지고 와야 되나. 일단은 제가 다른 사람에게 알릴 방법은 필요했어요. 아저씨가 받아가라 해서 올라갔죠. 올라가서 하는데... 막 이렇게 잡아 당겨서 이렇게 하려고 하는 거에요. 거기서도 실랑이 엄청하다 아저씨 놓으시라고요. 진짜 아저씨 이렇게 볼 줄 몰랐다고, 아저씨 이렇게 무서운 사람일 줄 몰랐다고, 미안하다고 저한테, 미안하다고 데려다 준다고, 미안하다고 아저씨가 욱해서 그랬다고. 아, 진짜 아저씨가 이러실 줄 몰랐다고, 정말 무섭다고, 진짜 지금 너무 무섭다고, 무섭다고 막 했어요. 그리고 하다가 아저씨가 갑자기 막 끌려고 해서 실랑이하다가 휴대폰이 떨어졌어요. 여기 돌에 그래서 휴대폰 찾았 어요. 제가 몸을 숙여서 잡고 엄청 뛰었어요.'라고 진술하였다. 이러한 피해자의 각 진술에는 피고인이 휴대폰을 흔들며 찾아가라고 하여 다시 돌아갈 당시 혼란스러웠던 피해자의 심경, 당시 피고인과의 대화 내용, 휴대폰을 되찾기 위해 피고인과 실랑이를 벌인 경위, 실랑이 도중에 떨어진 휴대폰을 주어들고 다시 도망간 상황 등이 구체적이고 생생하게 드러나 있는바, 이러한 진술을 피해자가 꾸며낸 것이라고 보기 어려울 뿐 아니라, 위 진술에 의하면, 피해자가 휴대폰을 되찾기 위해 피고인에게 되돌아갈 당시의 정황이 비교적 합리적으로 이해된다. (④) 피해자는 피고인의 차량에서 신발을 벗은 채 뒷좌석으로 옮겨 앉은 경위, 피고인의 성기에 콘돔을 씌운 경위에 관하여 경찰 2회 진술에서 '(피고인의 차량이) 공사장 쪽으로 가기에 제가 "돈을 드릴테니까 다시 돌아가자."라고 했는데도 제 말을 무시하고 계속 차를 타고 공사장 맨 위로 올라가시더라구요. 도착해 보니까 너무 무섭기도 해서 제가 아저씨에게 "너무 무섭다 돌아가자."라고 했더니 그 아저씨가 "사람이 없으니까 괜찮다."라고 하면서 성관계를 하자는 식으로 이야기를 하더라구요. 저는 계속 싫다고 했는데 그 아저씨가 "뒷좌석에서 마주보고 더 이야기를 하자."라는 식으로 말을 해서 알았다며 제가 차에서 내려 뒷좌석으로 올라타서 운전석 쪽으로 자리를 앉았고, 그 아저씨도 차에서 내려 뒷좌석으로 올라타고 서로 마주보고 이야기를 하면서 저는 "돈 드릴테니까 가자고 다른 분 만나시라고, 이런 곳 좀 그렇다. 저하고 뭐하자는 거냐. 가자."라고 말을 했고, 당시 제가 신발을 벗은 상태에서 의자 위로 올라가 앉아서 창문을 내리고 담배를 피우고 있었는데 아저씨가 화가 났는지 "담배 다 피웠으면 담배를 끄라." 하더니 창문을 닫으라고 해서 창문을 닫았고 아저씨가 트렁크 쪽에 잠시 정리를 할 게 있어 뒷좌석이 불편하다고 트렁크 쪽을 정리하고 다시 차에 올라타기에 제가 그 아저씨에게 짜증나는 말투로 "아저씨 그냥 빨리 가요. 지금 뭐하자는 거냐. 다른 사람 만나라. 저 그냥 돈 드리고 가겠다."고 하면서 제가 돈을 받아서 후드집업 옷에 넣어 두었는데 차에 탔을 때 너무 더워서 보조석 의자에 걸쳐 놓았는데 돈을 주려고 그 옷에 손을 뻗는 순간 그 아저씨가 저를 밀쳐서 제가 상체는 뒷좌석 창문 쪽으로 눕혀진 상태고 제 다리는 뒷좌석 의자에 올려져 있던 상황에서 그 아저씨가 자신의 허벅지로 제 다리를 누르고 있는 상황에서 그 아저씨가 제 뺨을 때리면서 "씨발년아. 왜 이렇게 말투가 싸가지가 없어. 이런 좆같은 년이 진짜 죽여버리기 전에 닥치고 있어."라는 등의 심한 욕을 하면서 무서워서 제가 "말투가 그랬다면 죄송하다."고 했는데도 그 상태에서 제가 입고 있던 면으로 된 레깅스와 그 안에 입고 있던 스타킹, 그리고 팬티를 한꺼번에 양손으로 옷을 벗겨서 제 몸이 그 아저씨 쪽으로 끌려갔죠. 그때 그 아저씨가 자신의 옷도 벗더라구요. 제가 발버둥을 치면서 "놓으시라고, 장난하지 말고, 신고하기 전에 놓으라."고 하면서 상체를 들어 제 허벅지를 누르고 있는 그 아저씨의 한쪽 다리 부위를 밀쳐내고 때리고 하면서 저항을 하자 그 아저씨가 저의 상체를 다시 밀어서 눕히고 밀쳐내는 저의 양 손목을 겹쳐서 머리 위쪽으로 잡고 있으니까 제가 움직일 수가 없었어요. 그러면서 그 아저씨가 계속 키스를 하려고 해서 제가 고개를 돌려 피하니까 그 아저씨가 손목을 풀고 정수리 머리채를 잡고 제 고개를 고정시킨 후에 볼에 뽀뽀를 하더라구요. 그리고나서 제 상의를 벗기고 그래서 제가 또 발버둥을 치니까 제 목을 양손으로 누르면서 "죽여버리기 전에 닥치고 내가 하자는 대로 해. 그러면 아저씨가 착하게 한다. 조용히 해라."라고 해서 제가 너무 무섭고 어떻게 될지도 모른다는 생각에 그 아저씨가 너무 흥분한 것 같아서 달래보려고 "죄송하다고 아저씨 이름은 어떻게 되세요?"라고 하는 등 달래보려고 했는데 "AJ이다. 씨발년아. 뭐 어쩔건데"막 이러면서 저의 허리 부위를 아저씨 쪽으로 끌어당기면서 앞좌석 커피 놓고 하는 팔걸이 쪽에 있던 콘돔을 저에게 던지면서 자신의 성기에 씌우라고 하더라구요. 그래서 제가 알겠다고 하면서 성기에 씌웠어요. 당시 그 아저씨가 무서웠고 그 아저씨가 바라는 대로 하지 않으면 저를 더 때릴 것 같고 저를 죽일 수도 있다는 생각에 우선은 그 아저씨의 이야기를 들어주고 비위를 맞춰서 달래야겠고, 아저씨가 흥분된 상태인 것 같아 그걸 가라앉혀야 되겠다는 생각에 요구를 들어주었을 뿐이다.'라고 진술하였다. 이러한 피해자의 진술은 구체적이고 생생하여 임의로 꾸며낸 것이라고 보기 어려운바, 위 진술에 의하면, 피해자의 조건만남을 그만두자는 요구에 피고인이 대화를 더 나누자고 하면서 뒷좌석으로 자리를 옮긴 경위나 피고인의 심한 욕설과 폭행에 외포된 된 피해자가 피고인의 지시에 따라 피고인의 성기에 콘돔을 씌운 경위가 소상하게 드러난다.

6 The victim stated in the court below that he did not have any particular circumstances except that he had been faced with the face subjects, etc. from the defendant in the vehicle of the defendant. The victim's face or part of the defendant's assault at the time of the defendant's appearance in the police after about 2 hours after the defendant's assault from the defendant. It is difficult to view that it is against common sense or rule of experience even if the victim's face or part of the defendant's assault was not remarkably remaining at the time of the victim's appearance in the police.

④ In light of the size and structure of the back seat space of Defendant vehicle, the Defendant asserts that it is physically impossible for the Defendant to attempt to engage in a sexual intercourse with knenebbbbs located in the Defendant’s knee. However, in light of the Defendant’s assertion that the Defendant had escaped in the process of changing the victim’s body from the back seat of the said vehicle to the upper body, there is considerable doubt as to whether it is impossible for the Defendant to attempt to sexual intercourse in the same form as the facts charged.

D) Where the admissibility and credibility of the protocol of examination of suspect prepared by the public prosecutor dispute over the voluntariness of the defendant's statement written in the protocol of examination of suspect, and the defendant asserts that it is a false confession, the court shall determine whether the defendant's statement was made voluntarily by free conviction in consideration of various circumstances, including the defendant's academic background, career, occupation, social status, intelligence degree, content of the protocol of examination of suspect interrogation, and the form of the protocol in case of the protocol of examination of suspect interrogation. However, the court shall determine whether the contents of the confession in itself have objective rationality, and what is the motive and reason of the confession, and what is the circumstance leading to the confession, and what is whether the confession does not conflict or conflict with the confession among other circumstantial evidences (see, e.g., Supreme Court Decision 2009Do1603, Oct.

According to the evidence examined by the court below, the defendant was a university professor who held a doctor's degree at the time of the crime of this case in 1975, and the defendant tried to engage in sexual intercourse by agreement between the victim and the victim at the time of two investigations by the police, and did not have committed assault and intimidation against the victim at all. However, during the prosecutor's investigation, the defendant stated that "in the course of sexual intercourse with the victim at the time of the investigation by the prosecution, the victim made assault, such as taking the face on his hand and her hand, taking the face on his hand, taking the head on his hand, taking the head on his hand, taking the hand, and taking the breath by hand." The victim also stated that "The reason for denying the suspicion of assault by the police and recognizing it to the prosecution is also the victim."

On the other hand, it is recognized that the fact that the victim stated "I have the honor to state the fact at present at the time of the victim's unfortunate mind," and that "I have the knowledge of whether the victim was a minor under 16 years of age or not" has continued to be denied.

Examining the above circumstances revealed in the above facts in light of the legal principles as seen earlier, such as the Defendant’s educational background, occupation, intelligence level, content of statement, and the protocol of interrogation of suspect, in the prosecutor’s investigation, some confessions made by the Defendant are recognized as decentralization of the statement, and only the materials submitted on the record alone cannot be deemed as having been made in a state where the Defendant’s partial confession was made in the absence of decentralization

Furthermore, the credibility of some confessions made by the defendant in the prosecutor's investigation is recognized as being consistent with the victim's statement, unless there is any part that can be seen as unreasonable in its content itself, there is no contradiction or conflict with it.

E) Whether the crime of bodily injury resulting from rape was committed and predictability thereof

(1) Whether the crime of bodily injury resulting from rape constitutes injury

In the event that there is extremely minor injury resulting from rape and that there is no obstacle to natural therapy and daily life, it shall not be the injury of the crime of injury resulting from rape. However, such argument is premised on the degree that there is no assault or intimidation that may suppress the victim's resistance in his/her daily life or that it is the same as the injury that may normally occur during his/her sexual intercourse in accordance with an agreement. Thus, if the injury exceeding such degree is caused by such assault or intimidation, the injury shall be deemed to fall under the injury. Whether the victim's health condition is changed to a bad condition, and whether the act of life is interfered with the function of life shall not be objectively and uniformly determined, but shall be determined based on the victim's age, gender, physical and mental concrete condition, such as physical and mental condition (see, e.g., Supreme Court Decision 2005Do1039, May 26, 2005).

Based on these legal principles, the victim can confirm the fact that there are many bodies that were fele, knee, knee, kneb, and elbel, etc. in the process of leaving the construction site in one-time while avoiding the defendant, and that there was a large number of bodies that were feled to be faced with, and that the victim was feled on the floor (Evidence No. 19-22 pages). (Evidence No. 19-22 pages) Even if the victim was treated with a tobacco purchased from a pharmacy without treatment at the hospital and a disinfection medicine for one week without treatment (Evidence No. 291 pages), it is difficult to view that the degree of the injury is likely to occur during daily life or that it is extremely insignificant to the extent that it may normally occur from sexual intercourse under an agreement. In light of the victim's age, gender, physical condition, etc., the above above situation is deemed to have changed the victim's health condition as bad and have a disability in life function, and thus, the victim's injury constitutes a crime of rape.

(2) 상해의 예견가능성 폭행이나 협박을 가하여 간음을 하려는 행위와 이에 극도의 흥분을 느끼고 공포심에 사로잡혀 이를 피하려다 사상에 이르게 된 사실과는 상당인과관계가 있어 강간치상 등의 죄로 의율할 수 있는데(대법원 1995. 5. 12. 선고 95도425 판결 등 참조), 이 사건에서 피해자는 원심 판시 범죄사실과 같이 피고인의 강간범행에서 벗어나기 위하여 알몸인 상태로 급박하게 피고인의 차량을 빠져나와 도망하다 야간의 공사장에서 넘어져 앞서 본 바와 같은 상해를 입었으므로 상당인과관계가 인정될 뿐 아니라, 피고인으로서는 피해자가 강간범행을 피하기 위하여 반항하면서 경우에 따라서는 피고인의 차량에서 탈출하여 밖으로 도망할 가능성이 있고, 그러한 경우에 피해자가 캄캄한 야간의 공사장에서 넘어져 상해를 입을 수 있다는 예견을 할 수 있었다고 봄이 타당하다.

F) Sub-decisions

As seen earlier, even if the prosecutor excluded the notice of the result of the psychological analysis (Evidence No. 54,55) submitted by the court below, considering the evidence duly examined in the court below including the victim's statements at investigation agencies and the court of original instance, the judgment of the court below which found the defendant guilty of the injury resulting from rape is justified, and there is no violation of a mistake of facts or a misapprehension of legal principles.

The defendant's ground of appeal on this part is without merit.

B. Determination on the prosecutor's grounds for appeal

1) As to the assertion of mistake of facts and misapprehension of legal principles

A) Whether to recognize children and juveniles

In full view of the following circumstances acknowledged by the record, the lower court determined that it is difficult to view that the evidence alone, which was presented by the prosecutor, was insufficient to deem that the Defendant was aware of the fact that the victim was a child or juvenile at the time of the instant crime, even if not.

① The victim, as his/her birth on May 197, falls under a juvenile prescribed by the aforementioned Act until December 31, 2015, pursuant to Article 2 subparag. 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse. The victim was in the remaining condition until December 31, 2015, based on January 24, 2014, which is the date of the occurrence of the instant case. However, the Defendant and the victim agreed to engage in sexual traffic through the “D” on the day of the instant case, and the victim did not have expressed his/her age to the Defendant.

② In light of the fact that the victim continued to lead a social life after he retired from middle school, key is larger than 160cc after 160cc, head was fluorcated in a long head of a life. clothes were not school uniforms, but rashings, rashings, and postboards, and natural tobacco was naturally cut before the Defendant, it is difficult for the victim to measure his age by means of the victim’s appearance and behavior alone.

③ At night around 22:00, the Defendant was driving the victim immediately and stopped at the construction site of his/her own vehicle and attempted to have sexual intercourse with the following vehicles. As such, there was no opportunity to view the victim at a brightness place until that time.

④ In the police investigation, the victim stated that "the introduction was 19 to 20 suicide or 19 to 19 years," and stated that "the same need to be written as 19 to 19 years," in the interview with the large statement and analysis officer, it is unclear how the victim introduced the age in D with the statement to the effect that "the person was 19 to 19 years, or was 22 to 23 years, or was introduced to D in the telephone of the prosecutor," and it is not clear how the victim introduced the age in D. There is no other objective data proving that the victim introduced the age in D to 19 to 20 years. Rather, in light of the fact that the victim was introduced to I, it is difficult to avoid the possibility that the victim introduced the victim's age to 19 to 20 years.

According to the above circumstances stated in the judgment below, it is difficult to view that the evidence submitted on the records alone proves that the defendant was aware of the fact that the victim was a child or juvenile at the time of the crime of rape in this case even if the victim was not a child or juvenile. Thus, the above judgment of the court below is just and there is no error of law of mistake of facts as alleged by

This part of the prosecutor's argument is without merit.

B) The sexual intercourse in violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc.

According to Article 19(1) of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc., a person who performs an act of arranging sexual traffic, etc. under subparagraph 1 of the same paragraph may be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30 million won. In this context, "act of arranging sexual traffic, etc." includes "act of soliciting sexual traffic" under Article 2(1)2(a) of the same Act. However, "sexual traffic" under the same Act refers to "act of performing sexual intercourse, etc. or becoming the counterpart thereof by promising to receive or promise to receive money, valuables or other financial benefits from a non-specific person or by promising to do so, as stipulated under Article 2(1)1 of the same Act." Thus, "act of soliciting sexual traffic" under Article 2(1)2(a) of the same Act refers to an act of soliciting "sexual traffic against a non-specific person."

Therefore, as the Defendant in this case, the 'act of soliciting a person who wishes to become the other party to sexual traffic' is not an act of soliciting sexual traffic against a 'unspecified person' under the above Act, and it cannot be punished pursuant to Article 19 (1) of the above Act. Where a person who wants to be the other party to sexual traffic voluntarily solicits sexual traffic for himself and then sexual traffic takes place, 'act of soliciting sexual traffic' may be punished pursuant to Article 21 (1) of the above Act. However, in simply soliciting sexual traffic, 'act of soliciting sexual traffic to himself/herself is not punishable pursuant to Article 19 (1) of the above Act, since there is no separate penal provision on preparation or attempted sexual traffic, 'act of soliciting sexual traffic' cannot be punished pursuant to Article 21 (1) of the above Act. In this case, there is no unreasonable consequence that a prosecutor is more severe punishment than the other party to sexual traffic when the Defendant was unaware of a child or juvenile in this case, 'act of soliciting sexual traffic' under Article 21 (1) of the Act.

2) As to the assertion on unfair sentencing, where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect the assertion on unfair sentencing (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

In light of the above legal principles, there is no special change in the sentencing conditions of the defendant, compared to the original court, since new sentencing materials have not been submitted in the trial and the court below did not change. In full view of all of the sentencing grounds stated by the court below, it is difficult to view that the sentencing of the defendant against the original court is too unhued so that it exceeded the reasonable scope of discretion.

The prosecutor's assertion of unfair sentencing is without merit.

3. Conclusion

Since the appeal filed by the defendant and the prosecutor is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges

The judge of the presiding judge shall be mining only

Judges Park Jong-young

Judges Full-time Leave

Note tin

1) However, with respect to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, the crime of bodily injury resulting from rape included in the relevant facts charged

In recognition of a crime as a crime, the judgment of innocence was not pronounced separately.

2) The lower court also acknowledged the admissibility of evidence of the notice of the result of the psychological analysis and examined it as evidence, but acknowledged the facts constituting an offense.

was not written in the written judgment as evidence.

심급 사건

-수원지방법원성남지원 2015.12.17.선고 2015고합81

서울고등법원 2016.4.22.선고 2016노146

-대법원 2016.8.17.선고 2016도6644

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