2018 High Court Decision 906 High Court Decision 2010Na1066 (Aggravated Punishment, etc.)

Special Act on Special Cases concerning Rape (Special Rape) and Promotion of Use of Information and Communications Networks

Violation of the Act on Promotion and Information Protection, etc. (Violation of Information and Communications Network)

2)

A

Maok-young (prosecution) and Kim Goods (public trial)

Attorney Choi Byung-il (Korean National Assembly)

January 3, 2019

A defendant shall be punished by imprisonment for two years.

Innocence of charge in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Criminal facts

1. Confinement1);

The Defendant, at around 12:30 on September 5, 2018, at the home of the victim C (Woo, 28 years of age) located in Seocho-gu Seoul Metropolitan Government, left the victim's seat on the ground that the victim wants not to meet the Defendant, and left the victim's seat on the forced floor by cutting down the victim's seat that the victim wanted to go to the Defendant, and opened at the victim's seat on the main room (16 cm in length) with a dangerous object knife at the victim's seat, and tried to commit suicide with the victim's knife, with the above knife, and the victim's knife "I will die. I will die. I will do so," and "I do not want to do so until I do not want to do so," thereby preventing the victim from being detained outside of the police for about 160 hours by preventing the victim from reporting it to the police.

2. Violation of the Act on Promotion of Information and Communications Network Utilization and Information.

No one shall intrude on an information and communications network without access authority, but the accused, around September 6, 2018, accessed the information and communications network without access authority by accessing the victim's ‘Internet', ‘E', etc. by entering the victim's ID and password by accessing the Internet through his/her cell phone from Yangcheon-gu Seoul Metropolitan Government, and confirming the change of the victim's cell phone number and location of the victim.

Summary of Evidence

1. Partial statement of the defendant;

1. Part of the witness C’s legal statement;

1. Reporting on investigation (in addition to the facts of crimes of suspects);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 276(1) of the Criminal Act (the point of confinement, the choice of imprisonment), Articles 71(1)9 and 48(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (the point of intrusion on information and communications networks and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act is more severe. Punishment of Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information Protection (Violation of Information and Communications Network Utilization

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not more than seven years and not more than six months;

2. Scope of recommendations according to the sentencing criteria;

(a) Crimes of confinement;

[Determination of Punishment] General Criteria for Arrest, Confinement, or Abandonment Abuse (General Arrest and Confinement)

[Special Aggravation] Aggravated Punishment: Where a person commits a crime showing the threat of collective force or carrying dangerous objects.

[Scope of Recommendation] From 8 months to 2 years (Aggravated Field)

(b) No sentencing criteria are set for offenses of violation of the Act on Promotion of Utilization and Information Protection of Information and Communications Network Utilization and Information Protection;

(c) The scope of final sentence according to the standards for handling multiple crimes;

Since the crime of confinement on which the sentencing criteria are set and the crime of violation of the Act on Promotion of Utilization and Information Protection of Information and Communications Network Utilization and Information Protection (Violation of Information and Communications Network, etc.) are concurrent crimes under the former part of Article 37 of the Criminal Act, only the lower limit of the sentencing range shall be considered in the sentencing criteria for the crime of confinement for

3. Determination of sentence;

The instant crime is deemed to have been committed by threatening the victim, possessing a knife, which is a dangerous object, on the ground that the victim was willing to not take the Defendant, and by threatening the victim for a considerable period of time, and is highly likely to be subject to criticism in the context of the crime, the context of the crime, the form of the act, and the consequence. The victim has suffered serious mental pain due to the instant crime, and is punished by a

However, considering the favorable circumstances in which the defendant is the initial offender, the defendant's age, character and conduct, health status, family relationship, circumstances leading to the crime, the means and result of the crime, and the circumstances after the crime, etc. shall be determined as the same as the order in consideration of various sentencing conditions shown in the arguments in this case.

The acquittal portion

1. Points of heavy confinement;

A. Summary of the facts charged

While the Defendant requested the victim to return again at the victim's house continuously after six months have elapsed since taking place with the victim, on September 5, 2018, at the victim's house listed in the criminal facts of paragraph (1) of the crime as indicated in the judgment of the court below, the Defendant detained the victim by taking the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife, standing the victim's knife in the main room, threatening the victim, and leaving the knife at the victim's house, preventing the victim from reporting it to the police, and preventing the victim from reporting it to the police for about 30 minutes by not later than 16:30 hours.

B. Determination

1) Relevant legal principles

In a criminal trial, the finding of facts must be based on evidence, and the conviction of guilt should be based on evidence with probative value that can lead a judge to feel true beyond a reasonable doubt. Thus, if there is no evidence with such probative value, even if there is no doubt of guilt against the defendant, it should be determined based on the benefit of the defendant (see, e.g., Supreme Court Decision 92Do1405, Sept. 1, 1992).

2) In the instant case:

On this part of the facts charged, the defendant found the victim's house at 7:00 p.m., and there were other men, which led to dispute with the victim, which led to a compromise with the victim, and led to a sexual intercourse with the victim at 10:0 p.m., which led the victim to not come in the future, and thereafter, it is true or knife that the victim used a knife and did not commit a cruel act by threatening the victim.

The term "cruel act" as referred to in Article 277 (1) of the Criminal Act refers to any tangible or intangible act that causes physical or mental harm that may cause harm to life and body. It does not include assault and intimidation, intimidation, or assault and intimidation that is necessary to continue confinement as a means of confinement, as a means of confinement, are absorption into the crime of confinement, and do not constitute a cruel act. Thus, the act of intimidation and intimidation by the defendant is only incorporated into the crime of confinement as a means necessary for the confinement of the victim, and it does not constitute a cruel act by itself.

The evidence regarding the Defendant’s act of rape as described in the following paragraph 2 is the only statement made by the victim. In light of the following circumstances revealed by the evidence adopted and examined by this court, it is difficult to view that the victim’s statement is credibility enough to lead to the conviction that this part of the facts charged is true, without any reasonable doubt, by rejecting the consistent defense of the Defendant, and without reasonable doubt.

A) The victim made a statement that is the main content of this part of the charges, consistent with this part of the charges. In the first and second investigations by the police, the victim stated that the Defendant placed the knife on the side of the police, made the victim take the knife and added the knife to the victim, thereby putting the victim on the floor and inserting the sexual organ into the

However, on December 4, 2018, the victim stated in this court that the defendant did not want to do so because he did not want to do so, and that he did not want to do so (5 pages of the record of the examination of the witness C). The prosecutor stated that he did not make a statement to the effect that he stated that he was not able to say that he did not want to do so, and that he was not able to do so, and that he did not mention that he was able to do so after citing the statements made by the police of the victim, citing the contents of the victim's statement, and again asked the victim whether he was sexually sexually sexually sexually related, and that he was not able to see that he was able to do so, and that he did not mention that he was able to do so, and that he did not mention that he was able to do so by inserting the witness.

Even after the time when the prosecutor asked about the sex relationship, the victim changed the statement that the defendant inserted his sexual organ. Considering that the victim was sexually aware of his or her ability and memory to the extent that he or she could concretely memory the victim's speech at the time of the instant case, and that the victim was suffering from depression due to the instant case and was psychological unstable at the time of the testimony in this court, taking into account that the victim was sexually undermining the police's statement about the rape, and that the victim's statement that was clearly stated by the police clearly constitutes grounds to doubt the credibility of the victim's statement about rape.

B) There is no consistency in the statement about whether the victim was her clothes at the time of rape. The victim stated in the second investigation by the police that the victim was out of the victim’s will and panty at the time of rape.

However, in this court, the victim stated that the defendant did not insert his sexual organ as mentioned above, while the defendant stated that he was her memory as to whether the victim was her clothes at the time of the defendant's act of lyinging the victim (the 6th page of the witness examination record as to the witness C). Since then, the victim still did not put his sexual organ into the victim when the prosecutor asked questions as to whether the defendant inserted his sexual organ, while the victim still did not put his sexual organ into the victim, the victim changed his statement that the defendant was off and the victim did not want to get off the clothes of the victim, and that the conversation was followed by the conversation because the defendant did not want to do so (7th page of the record of the witness examination as to the witness C). The victim stated that there was a sexual insertion only when the prosecutor asked about whether the defendant inserted his clothes again, and then the prosecutor asked the witness's question as to whether he was her uniforms and the defendant took off his clothes and changed his clothes (the 8th page of the witness examination).

Unlike the statement of the police in this court, the victim stated that he did not memory his clothes at the time when rape was raped, but changed the prosecutor's repeated questions. The victim has the ability to specifically memory and make a statement about the situation at the time of the case, and the defendant stated in the initial police in detail about 3 months in relation to the defendant's act of excluding the clothes of the victim, and the time of testimony in this court was about 3 months since the police investigation at the time of the above police investigation. However, it is difficult to easily understand the victim's statement that the victim's statement that the victim's 's 's 's 's 's clothes

C) Meanwhile, at the time when the Defendant agreed with the victim before entering a knife in an investigative agency, the Defendant stated that, at the time of sexual intercourse, the victim stated that “I kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't n

However, as seen earlier, the victim stated in this court that he did not refuse and inserted the statement that he would want to be a defendant, and stated that he partially supported the defendant's above statement, and that the victim saw knife as the defendant knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife s

In addition, in light of the circumstances in which the victim stated in this court that he/she would not memory his/her clothes at the time he/she would have want to be sexual intercourse, it is difficult to readily conclude that the Defendant’s statement that he/she attempted a secondary sexual relationship with the victim while he/she was off his/her clothes after the first sexual intercourse is unable to be believed.

D) At the time of the first and second investigations conducted by the police, the victim stated that the Defendant had a knife the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife with the knife.

Although the victim made a concrete statement in the police that the victim saw the victim's knife and threatened the victim's knife on two occasions, it is difficult to understand that the victim did not completely state his/her knife the knife of the material damage at the time of the police investigation.

In this regard, the Defendant stated that he did not standing when he was sexually related to the victim, but when he did not have sexual intercourse (92 pages of investigation records). In light of the fact that the Defendant had sexual intercourse with the victim one time under the consent of the victim, it is doubtful whether the victim did not have stated a certain day of sexual relationship which the police agreed to by the victim as the assault of the Defendant.

E) Although the victim stated to the same purport that the Defendant was unable to use knife and work together with the Defendant to this court, the victim made a consistent statement to the same effect. However, the Defendant only made a consistent statement on the facts related to the sex relationship with the Defendant, while having knife and rape, and the details of the statement are changed or lacking in detail regarding the previous and previous circumstances.

At the time of the first and second investigation into the police, the victim entered the victim's house at around 10:0, and took place the same time, without making any statement about the sex relations, and she again made the victim's home, and she told her that she would have no possibility to talk again, and then she sent her a knife and knife to the defendant. After the prosecutor's office, the victim made a telephone conversation with the victim based on the defendant's statement that she had sexual intercourse with the victim by agreement with the victim. The contents of the victim's statement heard knife and knife the defendant's knife at the defendant's request and did not want to attend as soon as possible. After the victim's attendance at the victim's meeting, she did not have a knife with the victim's witness at the victim's home (after the victim's attendance at the bar, she did not have a knife with the victim's witness on the day of this case's attendance.

In other words, at the police investigation stage where the facts of the first sexual relationship between the victim and the victim were not revealed, the victim stated that the victim was raped with the victim's knife and the defect knife at the home of the victim, but after recognizing the first sexual relationship, this court and the prosecutor's office changed the statement to the effect that the victim's defect that the victim should work should put his own knife to the victim, and that the victim's knife was not memoryd again from the victim's home.

However, it is difficult to understand that the Defendant’s self-injury means that “n't need to be examined on the face of the width,” and it is difficult to understand that the victim’s first statement was self-injury after changing the victim’s statement, on the sole ground that the victim tried to work even though there was no change in circumstances after entering the victim’s house.”

F) Until September 2, 2015, before the instant case occurred, the victim frequently met 4,5 times a week between the Defendant and the Defendant, and the Defendant was informed of the personal identification number of the Defendant, and maintained a relationship similar to the Defendant, such as having himself/herself as the Defendant, or having sexual intercourse, at the victim’s home, and maintained a relationship similar to the Defendant (the witness C’s witness witness witness C’s witness examination record: 11,12, No. 2-1, No. 2, and No. 3). However, there was a conflict even at the morning on the day of the instant case, but sexual intercourse was agreed upon. However, the victim stated that he/she was aware of the fact that he/she was aware of the fact that he/she was aware of the Defendant again with the police (the investigation record 13 pages), and that he/she was unilaterally aware of the relationship with the Defendant by failing to state a considerable portion of the facts pertaining to the instant circumstances.

In addition, the victim stated that he had previously expressed that he had acted as he would be able to see "Chos and galles" (in the investigation record 13,16 pages), and that the victim had established rape in the case of the defendant and had sexually committed an act while humping the victim (see each monetary recording No. 2-1, 2, and 3). Thus, this part of the statement is doubtful that the victim was in exaggeration of the violence of the defendant.

G) Meanwhile, the Defendant made a statement at the investigative agency as follows. At around 07:0, the Defendant opened a door to the victim’s house, but opened the door to the victim’s knife of his knife. The victim thought that she had sexual intercourse with the male, and she had talked outside, and her talked with the Defendant at a convenience point. The same is the same while she made a statement at the convenience point, she was able to ask the victim about the relationship with the male at the victim’s house, and she did not change the victim’s knife to the victim’s knife, and she did not want to have a knife his knife his knife his knife the victim’s knife. When she made an abstract statement, it was difficult to say that she had a knife the victim’s knife that she had no sexual intercourse with the victim.

H) Conclusion

This part of the facts charged constitutes a case where there is no proof of facts constituting a crime, and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of confinement within the scope of the same facts charged, the

2. The point of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

A. Summary of the facts charged

The Defendant, based on the date and time and place indicated in Paragraph 1 of the holding, knife knife that is dangerous things, and threatened the victim with his knife that knife knife knife, thereby preventing the victim from resisting, followed the victim’s sexual organ rapidly, put the victim on the floor, and added his sexual organ into the part of the victim’s sexual organ, thereby committing rape.

B. Determination

As examined in Section 1-b above, it is difficult to view that the victim’s statement, the only evidence supporting this part of the facts charged, is reliable to the extent that it could lead to the conviction that the facts charged in this case are true without any reasonable doubt.

C. Conclusion

This part of the facts charged constitutes a case where there is no proof of criminal facts, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

1) In a case where there is no concern that the exercise of the defendant's right of defense may not substantially disadvantage the defendant, the court may recognize ex officio facts different from those of the facts charged to the extent that the identity of the facts charged can be recognized even without any changes in the indictment. In this case, the facts constituting the crime of confinement in the judgment of the court below are reduced in relation to the facts charged in the middle confinement, and the identity of the facts charged is recognized, and even if the facts charged are recognized,

2) The victim’s attendance time is time prior to the victim’s attendance (the 9 pages of the witness C’s examination record).