2019No1156 Rape, similar rape, special intimidation, assault

A

Prosecutor

He/she shall file a prosecution, Kim Jong-young, and Lee Jae-young (Trial)

Attorney Park Tae-tae (National Assembly)

Suwon District Court Decision 2019Gohap19 decided April 30, 2019

December 20, 2019

The prosecutor's appeal is dismissed.

1. Scope of the judgment of this court;

Of the facts charged in this case, the lower court rendered a judgment dismissing the prosecution and rendered a judgment dismissing the remainder of the facts charged. Since only the prosecutor appealeds the part not guilty and the part dismissing the prosecution is separated, the scope of this court’s judgment is limited to the part not guilty among the lower judgment.

2. Summary of grounds for appeal (misunderstanding of facts concerning the acquittal portion of the original judgment);

The victim’s statement on the charge of rape, similar rape, and special intimidation of this case is consistent with the important part, consistent with the contents of text messages sent by the Defendant to the victim and the field pictures, etc. In particular, it is reasonable to view that the victim was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually

3. Determination

A. Relevant legal principles

1) In a criminal trial, the burden of proving the facts constituting an offense prosecuted is to be borne by the public prosecutor, and the conviction is to be based on the evidence of probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is doubt as to the defendant’s guilt, the interest of the defendant is to be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2009Do1151, Jul. 22, 2010).

2) In a case where the Defendant consistently denies the facts charged and the victim’s statement is practically the only direct evidence consistent with the facts charged, solely based on the victim’s statement, in order to find the Defendant guilty on the basis of the victim’s statement, high probative value is required so as to have little doubt as to the authenticity and accuracy of the statement. In determining whether such probative value is satisfied, the victim’s statement itself should be comprehensively taken into account (see, e.g., Supreme Court Decision 2011Do16413, May 10, 2012).

(b)a special threat;

Considering 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's statement, which is the only direct evidence of special intimidation, is difficult to view that the victim's face is credibility, and the remaining evidence presented by the prosecutor, such as the on-site photo (Evidence No. 70) of a shoulder-in-fact disease, cannot be deemed as proven beyond a reasonable doubt. Accordingly, the judgment of the court below which acquitted the defendant of this part of the facts charged is justifiable, and it cannot be said that there was an error of mistake of facts as alleged by the prosecutor. This part of the prosecutor's assertion is without merit. This part of the prosecutor's assertion is without merit.

① At the time of the first statement made by the police, the victim responded only to the question, “I am hyn if I am hyn? I am hyn? I am hyn? I am hyn? I am hyn? I am hyn? I am hyn? I am hyn? I am hyn? I am hyn't am hyn? I am hyn? I am hyn? I am hyn? I am hyn't hyn? I am hyn? I am hyn't hyn? I am at the time of the first statement made by the police at the time of the first statement made by the police. I am hyn't hyn't hyn? I am hyn? I am hyn'.

② The second written statement by the police against the victim contains the content that the victim stated to the effect that, with respect to the crime of special intimidation, the defendant forced the defendant to do so at the time. However, although the defendant forced the defendant to do so, it was "whether the defendant actually made a statement to the scambling scamscamscamscamscamscamscamscamscamscamscamscams and scamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscamscams, and there is no material to objectively prove the victim's statement process such as video images, it cannot be readily concluded that the victim voluntarily made a statement as the

③ At the court of the trial, the victim stated only the facts of rape and similar rape in priority to the prosecutor’s question, stating that “the day on which the case was on the day, she talked as her memory.” In particular, the Defendant took rape once again, and she took the rest in the toilet, and she took an action to her to take the drinking in his/her hand from that time, she did not mention that he/she took an action to her hand. The victim made a statement to the effect that he/she took advantage of his/her own cell phone, and that he/she threatened the Defendant of his/her illness.” Therefore, the victim did not mention that he/she took the part in his/her cell phone, and did not mention that he/she threatened the Defendant of his/her illness.

Since then, only after the prosecutor's questioning that the victim's face of the illness is left back after the victim was sexually raped by the defendant, the victim 's statement was made to the effect that the victim 'if the defendant was sexually ill,' and the victim ' was frightened by the defendant, the victim 's face of the illness.' From that time, the victim 's statement to the effect that the defendant was less than frightened by the defendant, and that the defendant was frightened by the defendant. However, even according to the victim's statement, the victim's statement to the effect that the fear and shock cannot be said to be minor compared to other injury, but considering the above facts, the victim 's voluntary statement from the investigative agency to the court of the first instance was difficult to be made in view of the fact that the victim was threatened by the threat from the defendant to the face of the main disease to the court of the first instance.

C. Rape and similar rape

In light of the above legal principles, considering the following circumstances revealed by the evidence duly adopted and examined by the court below and the court below, it is difficult to view that the victim's statement, the only direct evidence of this part of the facts charged, is reliable, and the remaining evidence submitted by the prosecutor alone cannot be deemed as proved to the extent that this part of the facts charged can be ruled out a reasonable doubt. Therefore, the judgment of the court below which acquitted the defendant of this part of the facts charged is just, and there is no error of law of misunderstanding of facts as alleged by the prosecutor. The prosecutor's assertion in this part

1) The facts charged in this part of the facts charged are from January 20, 2019 to from around 02:40 on to 21:40, both of the Defendant threatened the victim with intimidation, rape, or put the victim's sexual organ into the victim's mouth. The victim did not make a unique and detailed statement from the investigative agency to the court of the trial in order to distinguish each part of the damage. The victim's statement was made in a passive way of responding to the questions induced alternatively, and the contents of the statement are limited to those stated in the facts charged, and it is difficult to find more specific and biological descriptions.

2) In the first police investigation, the victim stated to the effect that "the defendant has committed rapes and similar rapes five times each while taking the face of the defendant at low face." At the first police investigation, "At around 15:0 per day of the occurrence of the case, around 17:00, around 21:00 each time, and around 21:00, respectively." However, in the second police investigation conducted on the basis of the difference between the first police investigation and several times, the victim responded to the second police investigation that the police officer made the first time, stating the time and contents of each crime as identical to this part of the facts charged, and the victim's statement to the effect that the victim has not been accurately made on the frequency of rapes and similar rapes (7:10 times) and the victim's statement to the effect that it is not consistent with each of the above facts charged."

3) 피해자는 제1회 경찰 조사에서 '피고인이 저의 얼굴이나 턱 부위 등을 때리고 강간 및 유사강간하였다.'14)라는 취지로 진술한 바 있다. 그러나 피해자는 원심 법정에서는 '피고인이 때리지는 않았는데 때리려는 시늉을 하였다.'라는 취지로 진술하였고, '피고인의 어떤 행동으로 겁을 먹고 원하지 않는 성행위를 하였는가요.'라는 질문에 대하여 '눈빛이 달라졌다. 예전에 저와 친했던 눈빛이 아니었다. 중간중간 욕을 섞어가면서 저에게 위협적인 행동을 했다.'라고 답변하였으며,15) 당심 법정에서도 '피고인이 저를 억지로 때리거나 심하게 하지는 않아서 몸이 아프지는 않았고, 다만 저를 때리려고 하는 행동을 하였다.'16)라는 취지로 진술하였다. 피고인이 행사한 유형력의 태양 내지 정도에 관한 내용은 강간 및 유사강간 공소사실의 핵심적인 사항에 해당한다고 할 것인데, 피해자가 위와 같이 별다른 합리적인 이유 없이 이에 관한 진술을 번복하고 있는바, 그 진술만을 가지고 피고인이 피해자에게 강간죄 내지 유사강간죄의 성립에 필요한 폭행 또는 협박을 하였다고 단정하기 어렵다.

4) The victim stated at the investigative agency that "the time when the defendant takes a secret identification number of the house of this case and enters the house of this case" was 01:20,00. At that time, "the time was confirmed to the cell phone of this case." The time was confirmed to the cell phone of this case. The defendant showed his conviction in the trial court of this case and stated that "the defendant's "Issssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss."

5) The victim stated at the court of original instance that he did not have a mobile phone at the time when he got off his cell phone at that time. If he had a mobile phone, he would have reported the defendant if he had been holding the mobile phone. However, at the court of original instance, the defendant sent his cell phone at the time when he was in the court of original instance. The defendant got out of his cell phone at that time. The reason was that the mobile phone case was in the form of card lock at that time. Accordingly, the victim got out of his cell phone at that time. The court of original instance made the statement to the effect that it conflicts with the statement at the court of original instance.

6) 피해자는 경찰 제2회 조사에서 '피고인이 한 차례 성폭행하고 난 뒤 "아이 쌌다"고 말했고, 저도 사정을 하는 것을 느꼈다. 그 외에는 사정을 하지 않았다.'는 취지로 진술하였는데, 당심 법정에서는 '피고인은 사정을 한 번도 하지 않았다. 발기는 되는데 사정은 안했다.'23)라고 진술하였다가 '두 번째로 술을 사오라고 시키기 전에 뒤에 서서 성폭행을 하더니 체외사정을 하였고, 그 외에는 사정을 한 번도 안했다.'24)라고 진술하였다가 '제가 그때 생리양이 많을 때라서 솔직히 사정을 했는지 잘 모르겠다. 그런데 처음 성폭행할 때 피고인이 쌌다고 이야기해서 사정을 한 것으로 안다. 두 번째 심부름 가기 전에 뒤에서 체외사정을 했다.'25)면서 피고인이 당시 성관계 후 사정을 하였는지 여부에 관하여 계속해서 그 진술을 번복하였는바, 이 점에서도 피해자가 당시 실제 있었던 일을 기억나는 그대로 진술하였는지 의심이 든다.

7) Considering that the degree of coping with a sex offender is bound to vary depending on the sex of the victim, the relationship with the perpetrator, and the specific circumstances, the following forms of the victim sent at the time of the occurrence of the instant case or immediately after the occurrence of the instant case are very exceptional.

① According to the victim’s statement, around 07:00 to 08:00 of the date of the occurrence of the instant case, the victim heard the horses and tobacco from the Defendant, and returned to the house. At the same time, the victim confirmed the shape of the Defendant, which was diving, and took a prompt and long time again, and returned home as soon as possible. Moreover, considering that the Defendant appears to have escaped at around 15:00 on the same day, the victim appears to have escaped from the Defendant or had sufficient opportunity to report the Defendant (see, e.g., the victim’s oral statement at the court below and the photograph of video containing CCTV that the victim was immediately in the future at the time of withdrawal, the victim did not have any mobile phone at all at the time of withdrawal).

② The victim made a statement to the effect that he was unable to think of the escape because he was the victim from the new wall about the reason why he did not know about the victim's escape or that he did not report the defendant. In addition, even though he was later, he was the same as that of the defendant, and that he was able to drive away from the escape if he was the same."27). However, even according to the victim's statement, even according to the victim's statement, the defendant was not in a situation to drive away from the victim because he had already been locked at the time, and the defendant did not know about the victim's workplace. Moreover, considering the victim's age, work experience, etc., the victim's above statement is difficult to obtain with a prior knowledge.

③ 피해자는 빨래방에 다녀온 후 잠자고 있는 피고인의 옆에서 잠을 자기도 하였고, 이 사건 발생일 18:00경에는 피고인에게 밥을 차려주고 함께 저녁식사를 하였다. 그 경위에 관하여 피해자는 원심 및 당심 법정에서 '덜덜 떨면서 빨래방에 가서 빨래를 하고 펑펑 울고 부들부들 떨다가 다시 집으로 돌아왔는데, 피고인이 자고 있길래 구석에 쭈그리고 앉아 두려움에 떨다가 잠시나마 불안함에서 벗어나고 싶어서 잠이 들었다.28) 제가 일하고 피곤하고 힘들고 배가 고파서 밥을 먹으려고 밥을 하고 있었는데, 피고인이 잠에서 깨어나 일어나서 원래 착했던 모습으로 "누나 나 배고파"라고 하길래 제가 "밥 먹을래?"라고 했다. 그때 "도망갈까?"하는 생각도 하였으나, "저게 연기하는게 아닐까?"라는 생각 때문에 무서워서 도망가지 못하였고, 결국 같이 밥을 먹게 되었다.'29)라는 취지로 진술하였다. 그런데 위와 같이 도망가거나 신고할 생각을 못할 정도로 두려움에 떨었다는 피해자가 그러한 위험에서 충분히 벗어날 기회가 있었음에도 그렇게 하지 않고 피고인 옆에 머무르면서 잠이 들었다는 것이나 피고인을 위하여 밥을 차려주고 함께 저녁식사를 하였다는 점은 경험칙에 비추어 쉽게 수긍이 가지 않는 측면이다.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges fixed-ranking of the presiding judge

Judges Kim Jong-jin

Judges Lee Byung-hee

(i) evidence No. 1, 37 of the record

2) Evidence No. 58-60 pages of evidence records

(iii) 78 pages of the trial records

4) First right, 62 pages of evidence records

5) The recording date of the examination of the witness against the victim of the party involved.

6) The recording paper of the examination of the witness against the victim of the party.

7) No. 33-35 of evidence records

8) Evidence Nos. 58-60 of evidence records

9) 78-79 pages of the trial records

10) Recording page 19 of the witness examination record against the victim of the party involved.

11) Recording page 23 of the witness examination record against the victim of the party involved.

12) Recording page 36 of the witness examination record against the victim of the party involved.

13) Recording page 35 of the witness examination record against the victim of the party involved.

14) Evidence Nos. 33-34 of evidence records

15) Court records No. 91

16) Recording page 36 of the witness examination record against the victim of the party involved.

17) Evidence No. 33,62 pages of the evidence records

18) Recording page 37 of the witness examination record against the victim of the party witness.

19) First right, seventy-seven pages of evidence records

20) Evidence No. 1 of the defendant's submission

21) The 92 pages of the trial records

22) Recording page 33-34 of the witness examination record against the victim of the party witness

23) Recording page 26-28 of the witness examination record against the victim of the party witness

24) Recording page 48 of the witness examination record against the victim of the party involved.

25) Recording page 52-53 of the witness examination record against the victim of the party witness

26) First right, 75 pages of evidence records

27) No. 36 of steam Record No. 1, No. 88 of the trial record, and No. 14 of the record of the examination of the witness to the victim of the trial.

28) The 88th day of the trial record, the record of the examination of the victim of the witness at the trial court, No. 14th day of the trial

29) The number of pages 89 of the trial records, the number of pages 14, 15 of the record of the examination of the witness of the trial court