(영문) 고등군사법원 2018. 9. 13. 선고 2018노88 판결

1) The victim did not under the influence of alcohol at the time of the instant case and was not in the state of mental or physical disability or impossibility to resist.

2) The Defendant did not have sexual intercourse with the victim by implied agreement with the victim in recognition of the victim’s condition of mental or physical disability or non-performance of the right to resist, and did not have sexual intercourse with the victim by using it.

3) Nevertheless, the lower court erred by misapprehending the legal principles as to quasi-rape and its criminal intent, or by misapprehending the legal principles regarding the facts charged in the instant case, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence of the court below (three years of imprisonment) is too unreasonable in light of the defendant's circumstances.

2. Judgment ex officio due to changes in indictment;

Before the judgment on the grounds for appeal was made ex officio, and the military prosecutor changed the facts of quasi-rape which the court below found guilty to be the primary facts charged as follows, and applied for changes in the indictment to add the facts of attempted quasi-rape as the ancillary facts charged, and the trial court allowed it. As such, the judgment of the court below on the facts charged in this case cannot be maintained any more, since the subject of the judgment was changed. However, even though there was a ground for ex officio reversal, the defendant's allegation of mistake or misapprehension of the legal principles still becomes the subject of the judgment of the court of this case.

【State Facts charged】

At around 22:30 on April 17, 2017, the Defendant drinked alcoholic beverages with Nonindicted Party 1 and Nonindicted Party 2 (name, leisure, and △△△) at one’s own house located in Seo-gu Daejeon ( Address omitted) Seo-gu, Daejeon, Seoul, along with his wife Nonindicted Party 1 and the victim Nonindicted Party 2 (name, leisure, and △△△). At around 01:0 on the following day, Nonindicted Party 1 first lockedd, and entered the victim’s inside room at around 02:0, and entered the victim’s inside room at around 02:0, and then entered the victim’s inside room, and then, the Defendant had sexual intercourse once with the victim’s chest and panty.

Accordingly, the defendant raped the victim by taking advantage of the victim's failure to resist.

【Preliminary Facts】

On April 17, 2017, at around 22:30, the Defendant drinked alcoholic beverages with Nonindicted Party 1 and Nonindicted Party 2 (name, leisure, and △△△) at one’s own house located in Seo-gu Daejeon ( Address omitted) Seo-gu, Daejeon, with the victim Nonindicted Party 1 and the victim Nonindicted Party 2 (name, leisure, and △△△). At around 01:00, Nonindicted Party 1 first locked, and the victim entered the inside room at around 02:00, and the victim also entered the inside room, and the victim was able to rape the victim in the state of non-performance because the victim was unable to resist due to the lack of alcohol to the extent that it is practically impossible to resist. However, the Defendant had sexual intercourse with the victim by misunderstanding that the victim was unable to resist by drinking.

Accordingly, the Defendant attempted to rape the victim by taking advantage of the victim's state of impossibility to resist.

3. Judgment on misconception of facts or misapprehension of legal principles

(a) Whether the victim was in a state of mental or physical disability or impossibility to resist;

1) The judgment of the court below

① The lower court determined that the victim was at the time of the instant case at the time, on the grounds that the victim was at the time of the instant case, inasmuch as the victim’s fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral

2) Determination of the immediate deliberation

A) 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 disorder or state of failing to resist shall be punished as the crime of rape under Articles 297 and 298 of the Criminal Act or the crime of indecent act by compulsion. The above crime is protected to protect sexual self-determination by protecting a person who is unable to defend himself/herself due to mental and physical circumstances (see Supreme Court Decision 98Do3257, May 26, 2000; Supreme Court Decision 2009Do2001, April 23, 2009). In light of the above, “the state of mental disorder” under the above provision refers to a state where normal judgment cannot be made due to mental disorder or food disorder, that is, the other party is de facto unable to respond to and judge his/her sexual act, or is considerably unable to exercise his/her ability to respond to and judge his/her sexual act on account of alcohol or medicine, etc.

B) Examining the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below in light of the aforementioned legal principles, the victim is deemed not to have been in the state of mental or physical disability at the time of the instant case, and the evidence submitted by the military prosecutor alone is insufficient to recognize that the victim was in such state. Thus, the court below erred by misapprehending the legal principles on quasi-rape or by misapprehending the legal principles on quasi-rape, which affected the conclusion of the judgment. The Defendant’s assertion on this point is with merit.

① At the court of the court below, the victim stated to the effect that “the victim was not locked until the day of the incident and the sex relationship ends.” (No. 52 pages of the trial record). In light of the victim’s habition at the time when the victim was placed more than two parallels (No. 255 pages, No. 256 of the trial record), it appears that the victim did not de facto sleep at the time.

(2) However, the victim seems to have drinking exceeding his own volume at the time. However, the victim's wife, the victim's friend and the defendant's wife, "The victim's friend and friend had been aware of 3 to 4 years at the time of the first year at the victim's university and friend, and the victim's friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend friend frith frith.

③ In addition, after the occurrence of the instant case, the victim had discussed Nonindicted Party 1 in detail about the facts that he suffered from the Defendant (as of the date of trial record 76), and thereafter, in the police and military prosecution investigation process, the situation and circumstances at the time of the damage, the defendant's behavior, etc. were considerably detailed (as of the date of examination of the police and military prosecution records 125 through 129, 144 through 146, 148). Thus, it is difficult to view that the victim could not make a normal judgment as to the Defendant's sexual behavior due to the mental or psychological disorder at the time of the instant

④ Meanwhile, according to the data call details from April 17, 2017 to April 18, 2017 of the victim’s search and seizure at the trial, the victim appears to have frequently used his/her Handphones immediately before and immediately after being damaged by the defendant (No. 205 of the trial record), and even according to the Kakakakax dialogue that the victim submitted to the trial court, the victim could have given and received a relatively normal message with his/her friendly Nonindicted 3 until before the occurrence of the instant case (No. 307 to 311 of the trial record).

B. Whether the defendant had an intention to quasi-rape

1) The judgment of the court below

① At the time of the instant sex relationship, the lower court determined that the Defendant, in full view of the following circumstances: ① there was no explicit agreement between the Defendant and the victim; ② the Defendant reported the form that the victim was in progress in the room; ③ the Defendant was scambling, and the Defendant was scambling out of the room when the victim was scambling out; ④ the Defendant stated that the victim was scambling and was scamening, even when scaming out of the room; ④ the Defendant stated that the victim was scambling the body of the victim when scambling at the time of the instant sex relationship with the victim; ⑤ The Defendant stated that the victim was scambling the body of the victim when scambling at the time of the instant sex relationship with the victim; ⑤ Meanwhile, the Defendant confirmed that the victim was scambling at the time of the instant sexual intercourse and believed that the victim was scambling.

2) Determination of the immediate deliberation

A) In a case where the defendant denies the criminal intent, the facts constituting the subjective element of such crime have to be proved by the method of proving indirect facts or circumstantial facts having considerable relevance with the criminal intent due to the nature of an object, and what constitutes indirect facts having considerable relevance should be determined by the method of reasonably determining the link of facts based on the detailed observation or analysis capabilities based on normal empirical rule (see, e.g., Supreme Court Decisions 88Do1523, Nov. 22, 198; 9Do1864, Jul. 9, 199; 99Do334, Apr. 11, 200; 200Do3716, Jun. 28, 2002).

B) First of all, the Defendant asserts that there was no express agreement with the victim, but at the implied agreement, the Defendant established a sexual intercourse with the victim. Considering the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court and the lower court, the argument that the Defendant was sexual intercourse by a normal agreement with the victim is difficult to believe.

① The Defendant and the victim came to know through Nonindicted 1 of the Defendant’s wife and the victim’s friendship. Although the victim visited the Defendant’s home to drink and drink alcohol at one time at one time during the ordinary month of peace, the victim was able to understand that he/she had sexual intercourse under an agreement with the Defendant, who is the husband of the her father, even though he/she was able to do so (No. 26, No. 66, No. 152, the evidence record of the trial record).

② The Defendant asserts, based on the agreement with the victim, that “the victim sent a new voice without resisting the victim at the time of sexual intercourse with the victim, and the victim and the oral intercourse with the victim.” However, the victim stated to the effect that “the victim was unable to resist at the time of his or her resistance,” on the grounds that he did not resist (the 34th, 59 pages of the trial record), and that “the victim was in an influorous reaction to the victim by the Defendant’s criminal act.” The victim’s new voice of the victim was likely to have been influorous response to the victim by the Defendant’s act. The oral communication was also deemed to have been the only difference between the victim’s face and was less than 2 to 3 times (the 35 pages of the trial record, evidence No. 13, 126, 146 pages of the trial record), and such circumstances alone cannot be inferred to have agreed on the victim’s sexual act without permission.

③ 한편, 피고인은 이 사건 범행 이후 2017. 4. 20.경 23:30경부터 다음 날 14:00경까지 사이에 카카오톡 메신저를 통하여 피해자에게 “내가 잘못했어. 모든 일에 책임은 나고 내가 널 건드렸다는 것은 변함이 없어. 내가 직접 가서 무릎이라도 꿇고 사죄를 해야 하는 거고 싹싹 빌어도 모자랄 판이라는 거 알아. 진짜 잘못했어. 진심으로 후회하고 죄책감 갖고 있어. 진짜 미안해.”, “후회스럽고 나로 인해 네가 충격 받고 힘들꺼라는 거 다 사죄할게. 진짜 미안해.”, “용서해 달라고는 절대 안 해. 충분히 범죄고 범죄자 취급받아야 하는 거 알아.”라는 등의 내용의 메시지를 보냈고, 피해자는 “너 때문에 공소외 1이 너무 망가진 것 같고 내 인생도 너 때문에 망가진 것 같다. 이젠 네가 내 말 듣고 진짜 죄책감이란 죄책감은 다 들었으면 좋겠어.”라는 내용의 답변을 보냈는바(증거기록 제56쪽 내지 제58쪽), 피고인과 피해자 사이의 위와 같은 메시지 대화내용은 합의에 의하여 정상적인 성관계를 맺은 남녀 사이에 통상적으로 이루어지는 대화 내용으로 볼 수 없다.

C) Furthermore, examining the following circumstances in light of the legal principles as seen earlier by the court below and the evidence duly admitted and examined by the court below in the court below, it can be sufficiently recognized that the defendant had the criminal intent to have sexual intercourse with the victim by using the victim’s awareness of the victim’s mental or physical disability or the state of refusing to resist. Accordingly, the judgment of the court below that recognized the defendant’s criminal intent to commit quasi-rape under such premise is sufficiently acceptable, and there is no error of misconception of facts or mistake of law as alleged by the defendant. Accordingly, this part of the defendant’s assertion is without merit.

① The Defendant, while speaking, at the same time with the victim prior to the month when the instant crime was committed, was sexually expressed by the victim that “I do not live in the side of the victim,” the victim’s side strings, and then rhything and rhing his hair, etc. (No. 92, No. 6, No. 118, and No. 152 of the trial record). The Defendant expressed the victim’s sexual talking that “I would have sexual desire at the time of drinking alcohol?” (No. 88 of the trial record, No. 9, No. 76, No. 122, and No. 144 of the evidence record). After being under the influence of alcohol, the Defendant had caused the victim to feel sexual desire for the victim, thereby leading the victim to sexual behavior to feel more severe sexual desire than the victim.

② 비록 피해자는 앞서 제3의 가항에서 살펴본 바와 같이, 이 사건 당시 심신상실 내지 항거불능의 상태에 있지는 않았지만, ㉠ 피고인의 범행 도중에는 자신의 핸드폰을 보거나 사용하지 않았고, 또한 전등도 소등된 상태여서 주변이 매우 어두웠던 점(공판기록 제301쪽, 제302쪽), ㉡ 피해자는 피고인이 처음 자신의 가슴을 만지자 무섭고 당황스러워서 자신이 깨어있다는 것을 알리지 못하고 제대로 반응하지 않았던 점(증거기록 제125쪽), ㉢ 이후 피고인이 자신에게 보다 심한 성적인 행동을 할 때에도 단순히 손을 흐느적거리거나 웅얼거리는 소리를 내는 것에 그쳤던 점(증거기록 제78쪽, 제94쪽, 제127쪽), ㉣ 결국 피고인은 손쉽게 피해자의 옷을 벗기고, 피해자가 누워 있는 자세 그대로 자신의 성기를 삽입하여 피해자를 간음할 수 있었던 점(증거기록 제15쪽) 등의 사정들에 비추어 볼 때, 피고인으로서는 피해자가 당시 술과 잠에 취하여 제대로 저항하지 못하는 상태에 있다고 생각하고 이를 적극적으로 이용하려고 했던 것으로 봄이 상당하다.

③ In addition, the Defendant, after having committed his crime, asked the victim of the day immediately preceding the day of the night, and asked the victim whether the victim was memory or not, and even if the victim was in a situation where the victim was still at the end with the victim, he did not talk about his sexual intercourse with the victim (see Articles 39, 93, 297, 94, 132, and 147 of the Criminal Procedure Records, and the Defendant’s act cannot be seen as a behavior that may have been taken after a person who entered into a sexual relationship under normal agreement, and even if considering the circumstances after committing the crime, it can be sufficiently inferred that the Defendant was aware that the victim was in a situation where it was impossible for the victim to have a normal scambling at the time of the instant crime.

4. Conclusion

In conclusion, the part of the Defendant’s grounds for appeal on the grounds of appeal is with merit, and the judgment of the court below is reversed without examining the Defendant’s allegation of unfair sentencing, and the judgment of the court below is reversed in accordance with Articles 428, 431, and 414 of the Military Court Act, and it is recognized that the military court itself is sufficient to determine based on the overall records of this case, and thus, it is directly decided as follows by pleading under Article 435 of the same Act.

Criminal facts

The reasoning of the judgment is as stated in Paragraph (2) of the same Article.

Summary of Evidence

The summary of the evidence of the facts constituting an offense acknowledged by this court is as shown in the relevant column except for adding “1. The Defendant’s partial statement in the trial room” and “1..... Nonindicted Party 2 (tentative name)’s legal statement in the trial room” to “the summary of the evidence” column of the judgment of the court below. As such, it is cited by Article 439 of the Military Court Act as it is.

Application of Statutes

1. Article applicable to criminal facts;

Articles 300, 299, and 297 of the Criminal Act

1. Statutory mitigation;

The proviso to Article 27 of the Criminal Act and Article 55 (1) 3 of the Criminal Act.

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of the following: (a) Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; (b) the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Defendant’s age, occupation, family relationship, environment, social relationship; (c) the Defendant has no record of committing sexual assault; (d) the type, motive, process, consequence and seriousness of the instant crime; (e) the degree of disadvantage and anticipated side effects of the Defendant’s entrance due to the disclosure or notification order; (e) the effect of preventing sexual assault crimes subject to registration that may be achieved therefrom; and (e) the protection effect of the victim,

Registration of Personal Information

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

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than one year and not more than 6 months but not more than 15 years;

2. Scope of recommended sentences according to the sentencing criteria;

Since an attempted crime is an attempted crime, the sentencing criteria shall not apply.

3. Determination of sentence;

The crime of this case was committed by the defendant in his wife and children first set away in his ward, and then the victim, who was the most familiar with his wife, was under the influence of alcohol, was guilty of sexual intercourse against his will by misunderstanding that the victim was in the state of mental disorder or non-performance of obligation to resist. Thus, the crime of this case was committed in light of the object of the crime and the method of the crime, and the physical and mental suffering of the victim seems to have been considerable. Nevertheless, the defendant asserted that the crime was committed under the implied consent of the victim from the day after the crime was committed to the trial of the court of first instance, and the defendant did not seem to have never shown the opening at all. In particular, the victim complained for a severe punishment against the defendant.

However, the first offender who has no record of criminal punishment is a favorable condition to the defendant, and the defendant's age, character and conduct, family environment, motive and circumstances of the crime, means and results of the crime, the circumstances after the crime, military service attitude, and other various sentencing conditions specified in the records and arguments shall be determined as ordered by the court, comprehensively taking into account the following factors.

The acquittal portion

The summary of the charge of quasi-rape, which is the primary charge of the instant case, is the same as the description of Paragraph 2-A [main charge] of the reasoning of the judgment. This constitutes a case where there is no proof of criminal facts as stated in Paragraph 3-A of the aforementioned reasoning as stated in the judgment, and thus, the acquittal should be pronounced pursuant to the latter part of Article 380 of the Military Court Act. However, inasmuch as the court found the Defendant guilty of attempted quasi-rape, which is the ancillary charge that is recognized as identical

Before the military judge Park Jong-young (Presiding Judge) of his/her rank, he/she shall have his/her rank

1) The facts constituting the crime of this part of the judgment of the court below contain the phrase "to prevent the victim from suffering from the situation of causing a secret voice." However, according to the records, the military prosecutor applied for the permission of modification of an indictment to delete the above phrase on January 18, 2018, and it is acknowledged that the court below permitted it on the same day (No. 86 pages, No. 102 of the trial record). Thus, it is obvious that the court below stated the above phrase as it is without deleting it by mistake from the facts constituting the crime of this part. Thus, this part of the facts charged is corrected and stated as a correction of the above phrase.

2) The facts charged in this part of the Military Prosecutor’s application for permission to amend the Bill of Indictment on August 16, 2018 contain the phrase “to prevent the victim from suffering a victim who seeks to escape from the situation where the body was made by scam and sound.” However, as seen earlier, as seen earlier, the military prosecutor appears to have made the same mistake due to the erroneous facts recorded in this part of the judgment below, and as such, the facts charged in this part of the indictment are corrected to delete the above phrase as stated above.

심급 사건

-보통군사법원 2018.2.6.선고 2017고99

고등군사법원 2018.9.13.선고 2018노88

-대법원 2019.3.28.선고 2018도16002 전원합의체

원심판결

-제2작전사령부 보통군사법원 2018. 2. 6. 선고 2017고99 판결

본문참조판례

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-대법원 1999. 7. 9. 선고 99도1864 판결

-대법원 2000. 4. 11. 선고 99도334 판결

-대법원 2000. 5. 26. 선고 98도3257

-대법원 2002. 6. 28. 선고 2000도3716 판결