2016Ma893 Quasi-rape

A

Park Woo-won (Court) and Kim Goods (Court)

Attorney Choi Ho-ap

February 18, 2019

The defendant shall be innocent.

1. Summary of the facts charged

The Defendant is a foreigner of Japanese nationality, and the victim’s ○○○○○○○ (n, 21 years old) is a foreigner of the family nationality. The Defendant was a foreigner of the family nationality on August 20, 2016, when the victim was sleep in Gangnam-gu Seoul where the Defendant silentd, and was first aware of with the victim.

On August 21, 2016, from around 00:00 to 06:00 on the same day, the Defendant served together with the victim, such as drinking alcoholic beverages on one day and a club, and drinking alcoholic beverages on the club, and returned to the head of the drinking house.

At around 07:57 on the same day, the Defendant discovered the victim's clothes in the so-called so-called so-called "saves ward", and found them locked without locating the clothes in the so-called "saves ward", and found the victim's state and other people to have sexual intercourse with the above victim, and confirmed that the above victim was saved and there was no person in the surrounding area, and then, at around 08:21, the Defendant laid the above victim's arms into two arms, laid them on one occasion, and had sexual intercourse with the victim at one time.

Accordingly, the Defendant raped the victim by taking advantage of the fact that the victim is in a state of mental or physical disability or impossibility to resist.

2. The defendant and his defense counsel's assertion

The defendant had sexual intercourse at the time and place of the crime stated in the facts charged under the agreement with the victim.

3. Determination

(a) Evidence relationship

The evidence that is consistent with or consistent with the facts charged in the instant case lies in the written statement (Evidence No. 2) prepared by the victim, the police statement (No. 9) made by the victim against the victim, and one CD in CCTV image.

B. Probative value of the evidence (Nos. 2 and 9) on which the victim’s statement was written

1) Relevant legal principles

Pursuant to Article 314 of the Criminal Procedure Act, in order for the protocol under Article 312 of the same Act or the statement under Article 313 of the same Act to be admitted as evidence, a person who needs to make a statement must be present and make a statement in the official ruling due to death, illness, overseas residence or other reasons, and the preparation of the statement or documents must be made under particularly reliable circumstances.

First, the term "foreign residence" means that a person who needs to make a statement is in a foreign country. In the course of an investigation, the investigative agency shall hear the statement and confirm whether the person who has made the statement is residing in the foreign country and the possibility of future departure, and if it is probable that the person who has made the statement is unable to make a statement by attending the official judgment in the future due to such circumstances as his/her residence in the foreign country or his/her departure from the near future and staying in the near future for a long time, it shall be confirmed in advance the contact address of the person who made the statement, and the place and contact method of his/her stay at the time of his/her temporary return to Korea, if there is a possibility that the person who made the statement is unable to make the statement, and even after his/her departure from Korea, the method of making the person who has made the statement appear in the official judgment shall be sufficiently provided with an opportunity to make the statement, and even if there are considerable means, it shall be circumstances that make it impossible to have the person present in the court (see Supreme Court Decision 2007Do128, Feb. 28, 2007.

Secondly, the term "a particularly reliable state" in relation to the requirements refers to a state in which there is little room for false intervention in the preparation of a statement or protocol, and there is a specific and external circumstance that guarantees the credibility or voluntariness of the content of a statement. In addition, since such term "a particularly reliable state" falls under the requirement for admissibility of evidence, a prosecutor must specifically assert and prove the existence thereof (see, e.g., Supreme Court Decision 2012Do2937, Jul. 26, 2012). The proof should be limited to the extent that it is highly probable and reasonable to do so (see, e.g., Supreme Court Decision 2013Do12652, Feb. 21, 2014).

2) Specific determination

Examining the following circumstances acknowledged in the record in light of the legal principles as seen earlier, since Article 314 of the Criminal Procedure Act cannot be applied to the police statement prepared by the victim, and there is no other circumstance to recognize admissibility of evidence, it shall not be used as evidence.

A) ① The victim, upon being investigated by the police on August 22, 2016, stated that he/she would depart from the Republic of Korea on September 2, 2016 (the 62 pages of the investigation record), 2. The prosecutor’s office denied the instant crime on August 26, 2016 and on August 31, 2016, according to the police testimony of the victim, the victim could sufficiently be informed of the fact that he/she would depart from the Republic of Korea on September 2, 2016. However, considering that the victim’s departure from the Republic of Korea or the progress of the trial after departure, the victim did not take measures such as ensuring the means of temporarily returning the victim to the Republic of Korea and making a statement in the court of Australia (the e-mail would be offered if the victim refuses to appear and make a statement in this court on February 1, 2017). However, the victim’s statement may not be deemed to constitute the victim’s statement in the court of Australia or the court of law.

B) At the investigative agency around 12:00 on August 21, 2016, the victim made a statement that he/she thought that he/she was quasi-raped by singly singingingly shotly, and that he/she was not involved in the sexual intercourse with the Defendant. However, in full view of the following circumstances, it is difficult to deem that the victim’s statement was made under particularly reliable circumstances, namely, that the victim’s statement was made under particularly reliable circumstances, that is, there is little room for false entry, and that there is little specific and external circumstances that guarantee the credibility of the contents of the statement, so it is difficult to deem that the content of the statement clearly proves to the extent that it would have reached the degree of without undergoing verification and verification through cross-examination in the court.

(1) The Defendant consistently denied the instant facts charged by asserting that it had been sexually agreed with the victim from the investigative agency to the instant court, thereby resulting in sexual intercourse with the victim.

(2) Around August 21, 2016, at around 02:00, the Defendant and the victim, and the same guest room (C2) carried in a club, drinking alcohol, and returned to a string house at around 06:00. The victim returned to a string house, and then divided a string container with the Defendant and C. After then, the victim sent D message to the Defendant, “not less than 1:00 and less than 2:00, at around 06:32, at around 06:32, the Defendant and the Defendant were sent the following message.

A person shall be appointed.

A person shall be appointed.

피해자는 수사기관에서, 피고인이 'I'd like to go there.'이라는 메시지를 보낸 이후 자신의 침대에 다가왔고 자신에게 키스를 2번 했고 당시 피고인에게 호감이 있어 이를 거절하지 않았다는 취지로 진술하였는바, 피해자도 피고인에게 호감을 느끼고 있었던 상태였던 것으로 보인다.

(3) The victim discussed the second section between 07:32 and 07:37:4 on the day of the instant case. Since then, the victim was divingd in a ward, and at the time of diving, the victim was in the state of original sprinking instead of her clothes. However, the victim made a detailed statement about the process or content of the sprinking and the sprinking that the victim was only in an investigative agency without her clothes. The victim appears to be relatively clearly memoryd about the circumstances that had been up until 07:37, and until that time, the victim seems to have not been in the state of mental disorder due to influence of drinking.

(4) According to CCTV images installed in the strings, the victim was taken by the Defendant’s room located in the front door of the guest room where the Defendant and the victim impliedly used both arms, and the victim was saved into the front door. However, even according to the above images, it appears that the victim was moving to her from her own seat, and the body of the Defendant and the victim did not run much, it is difficult to grasp the degree of the victim’s taking by the above images alone.

(5) As seen earlier, the victim made a statement to the effect that: (a) the Defendant was able to obtain a tea from the Defendant; (b) the Defendant actively made a kis to the Defendant; and (c) the Defendant stated that the Defendant was able to obtain a kis from the Defendant; and (d) C, who was silent in the same room, made a statement to the effect that the Defendant’s statement was consistent with the Defendant’s statement to E, a kis operator; and

(6) The Defendant denied the instant crime from the police to the prosecution’s investigation stage. The victim left Korea on September 1, 2016, after the instant case was forwarded to the prosecution, and did not conduct an additional investigation with respect to the victim, such as the Defendant and the victim being examined.

C. Sub-decision

Therefore, each statement at the police station of the victim cannot be used as evidence. The evidence submitted by the prosecutor alone is insufficient to dismiss all the defenses of the defendant as mentioned above and to recognize that the defendant committed a crime as stated in the facts charged, and there is no other evidence to acknowledge it otherwise.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, a judgment of innocence is rendered under the latter part of Article 325

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

1) The victim left the Republic of Korea on September 1, 2016 (see, e.g., the status of individual entry and departure).

2) The store heading in which the instant case occurred is operated in the form of mixing of eternities, even though it is not the same kind of conduct.

3) We seem to be written in writing in the hands.

4) Criteria for CCTV display time.