2013Gohap1418 Rape

A

Jin-Jin-Jin (Court of Prosecution), Jin-Jin-Jin (Court of Justice)

Attorney B (Korean National Assembly)

April 4, 2014

The defendant is innocent.

1. Facts charged;

At around 18:00 on August 31, 2013, the Defendant: (a) placed the victim D (the 21-year-old) who was sexually informed at the Defendant’s house of Seongbuk-gu Seoul Underground C 1; (b) placed the victim on the part of the victim’s family; (c) placed the victim on the part of the victim’s family; (d) placed the victim on the part of his/her family; (d) placed the victim on the part of his/her family; (e) putting him/her on the part of his/her panty; (e) putting him/her on the part of his/her panty; and (e) putting him/her on the part of his/her panty; and (e) putting him/her on the part of his/her panty; and (e) forced to put him/her on the part of his/her panty; and (e) put him/her into a panty and

2. Summary of the defendant and his defense counsel's assertion

Although it was true that the defendant had sexual intercourse with the victim and that the victim was "not at the time when the victim was born," there was no assault or threat in the crime of rape in light of the situation before and after it.

3. Determination

A. Criminal facts in a criminal trial ought to be established based on strict evidence with probative value, which leads a judge to have a reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that such convictions may lead to such convictions, the court should determine the benefit of the defendant even if there are suspicions of guilt, such as inconsistency with the defendant’s assertion or defense or non-comfortable dismissal. Furthermore, in order for the victim to be convicted of charges solely based on the victim’s statement, high probative value is required to be so high that there is no room for doubt as to the authenticity and accuracy of the victim’s statement. Determination of whether the probative value is established should comprehensively take into account not only the reasonableness, consistency, objective reasonableness of the victim’s statement itself, but also the elements such as the victim’s sexual character (see, e.g., Supreme Court Decisions 2011Do16413, May 10, 2012; 2012Do2311, Jun. 28, 2012).

In order to establish the crime of rape, the perpetrator’s assault and intimidation must be such as to make it impossible or considerably difficult to resist the victim. Whether the assault and intimidation were to make it impossible or considerably difficult to resist the victim’s resistance should be determined by comprehensively taking into account all the circumstances, including the details and degree of the assault and intimidation, the developments leading up to exercising force, the relationship with the victim, the sexual intercourse, and the subsequent circumstances (see, e.g., Supreme Court Decisions 2006Do5979, Jan. 25, 2007; 2010Do9633, Nov. 11, 2010; 2010Do9633, Nov. 25, 2007).

B. In this case, in light of the fact that in the investigation stage, the victim made up the victim's bridge on the shoulder of the defendant, up to the time of the investigation, the victim took off the victim's shoulder, and even though the victim made a statement to the effect that he was forced to get out of his will and sexual intercourse with the victim by force, it is doubtful that the defendant was not raped by assault or intimidation.

C. However, comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to view that the victim’s statement as shown in the facts charged of the instant case was used to make it impossible or considerably difficult to resist the victim, and there is no other evidence to acknowledge it.

1) At the investigative agency, the victim made a statement that the defendant was born to the victim when committing the instant crime, and that there was no assault or threat against the victim. The victim made a statement to the effect that, at the time when the defendant was out of the victim's seat, it would be appropriate to say that he was "the victim's seat was attached to him," and that at the time, the victim made a statement to the effect that he responded to the match relationship without any special resistance, even after he was out of the victim.

2) 피해자는 피고인과의 이 사건 성관계 직후 나쁜 감정이 없어 신고할 생각도 없었다. 피해자는 이틀 후인 2013. 9. 2. 10:00경 피고인과 E가 자고 있는 피고인의 집으로 가 피고인이 자고 있던 침대 위에서 잠이 들었고, E가 출근하러 간 후 같은 날 13:40경 피고인과 합의하에 성관계를 가졌다. 피해자는 2013. 9. 2. 22:59경 피고인에게 '자기꺼♥', '이뽀옹~♥'등의 카카오톡 메시지를 보내는 등 피고인과 자연스러운 휴대폰 메시지를 주고받았다.

3) The victim stated the fact that he had sexual intercourse with the Defendant F, and around September 2, 2013, around September 2, 2013, F knew of the fact that he had sexual intercourse with the Defendant F. Around September 3, 2013, E found the victim’s home around September 3, 2013, and followed such fact to the victim. During that process, the victim’s husband and the Defendant came to know of the fact that he had sexual intercourse with the victim, including the victim’s husband and her husband. The victim’s husband reported the victim’s family, and the victim filed the instant complaint with the investigative agency along with the husband of the victim.

4. Conclusion

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

The presiding judge shall be a judge.

Judges Kim Gung-sung

Judge Freeboard