Defendant

Defendant

Lee Jin-jin

Attorney Yu Byung-ok

Suwon District Court Decision 2005Gohap151 Decided May 24, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

155 days of detention before pronouncement of the judgment below shall be included in the above sentence.

In the facts charged of this case, each rape among the facts charged of this case shall be acquitted.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) As to the crime Nos. 1, 2, and 3 of the judgment below

① The Defendant’s intimidation against the victim Nonindicted 2 was limited to the degree of causing fears to the victim by notifying the victim that he would have a certain harm to the victim’s reputation, and did not reach the degree of suppressing the victim’s resistance, and thus, the crime of rape or indecent act by compulsion against the victim is not established. ② The Defendant entered the victim’s house with the consent of the resident, and thus, the crime of intrusion upon residence is not established.

(2) As to the crime No. 4 of the judgment below

The Defendant, by telephone, received money from the victim by saying, “I will forward money later if I return to the public that I would think that I would see that I would return to the public,” and did not take money in return for the discontinuance of rape.” The Defendant did not receive money from the victim in return for the discontinuance of rape.

B. Unreasonable sentencing

Even if some of the facts charged in the instant case are found guilty, the sentencing of the lower court is too unreasonable.

2. Determination

A. As to the crime Nos. 1, 2, and 3 of the judgment below

(1) Summary of this part of the facts charged

On June 11, 2006, the Defendant 205, when driving a false phone with the victim non-indicted 2 (V, 34 years old age) who was mistakenly taken off, had a sexual intercourse with the victim at the apartment room at once, with the victim’s face unsatisfy, and still had a sexual intercourse with the victim by threatening the victim to satisfy so that the victim may continuously have a sexual intercourse by threatening the victim’s face. While driving as the victim’s old day, from June 11, 2006 to June 14, 2006, the Defendant sent the victim by telephone, “A person who was satisfying with the victim’s face, who was moving into the telecom with the face of her mother room, with the victim’s body without having to pay money, and then notified the victim of the fact that the victim did not respond to the victim’s family member’s photograph, such as his husband’s pressure.”

(A) From Jun. 15, 2005 to Aug. 18, 2005, when working as a photographer at the guest room on the 6-story Mayang-dong 981, Goyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, Mayang-si, the victim at which the resistance was detained, made the victim quickly in his sexual organ, forced the victim to have sexual organ, and forced the victim to sexual intercourse one time, and rape the victim from that time by the above method until Aug. 18, 2005, each rape by forcing the victim more than four times in total, such as the list 1, No. 8, 10, and 10, listed in the annexed Table 1 of the Criminal List in the judgment of the court below.

(B) Around 10:30 on June 24, 2005, when the victim's house located in Goyang-si (Saeong-si and apartment house omitted), the victim's house was invaded against the victim's will at risk of suppression of resistance, and the victim's house was forced to have sexual intercourse with the victim one time in the same manner as the above paragraph (a), from that time to July 25 of the same year, from that time, the victim had sexual intercourse with the victim one time in the manner as described in the attached Table 2 to 7 of the List of Crimes in the judgment of the court below, and forced sexual intercourse with the victim's house more than six times in total as shown in Table 2 to 7 of the List of Crimes in the judgment below;

(C) On October 18, 2005, around 09:30, the victim invadedd the victim's residence, such as the above (B) at the victim's house, and then, the victim at the suppression of the resistance as above caused the victim to rapidly join the defendant's sexual organ and forced the victim to commit indecent act by force.

(2) As to rape and indecent act by compulsion

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’s resistance. Whether 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, such as the details and degree of assault and intimidation, the background leading up to exercising force, the relationship with the victim, and the sexual intercourse at the time of and after the sexual intercourse, etc. It is difficult to readily conclude that rape was generally impossible or considerably difficult to resist the victim solely on the ground that it was rape or intimidation to make it difficult to resist the victim’s resistance (see Supreme Court Decisions 201Do6960, Mar. 12, 2002; 98Do1379, Jul. 28, 1998). Meanwhile, the above legal doctrine in relation to the crime of rape should be applied to the other party’s assault and intimidation after making it difficult to resist the other party.

In this case, according to the evidence duly adopted and examined by the court below, the defendant can be found to have committed an indecent act against the victim at each time and place indicated in the above facts charged, but even according to the victim's investigative agency and court court's statements, the victim's sexual intercourse with the victim's old pathy, as stated in the above facts charged, was not accurately seen as the victim's face, and the victim still has a sexual intercourse with the defendant's old pathy and pathy, and the victim's phone call "It is difficult to find the victim as a victim's sexual assault or indecent act against the victim's own will, and it is hard to find that the victim's sexual intercourse with the victim's family member's photograph and family member's photograph cannot be seen as having been exposed to the victim's sexual intercourse (the victim's sexual assault or indecent act against the victim's own will cannot be seen as having been committed against the victim's own will and there is no other evidence to acknowledge that the victim's sexual intercourse with the victim's family member's photograph or family member's photograph.

Ultimately, the court below found the defendant guilty of rape and indecent act by compulsion among the facts of the crime Nos. 1, 2, and 3 in the holding of the court below. The court below erred by misapprehending the rules of evidence and misapprehending the legal principles as to the degree of intimidation in the crime of rape and indecent act by compulsion, thereby affecting the conclusion of the judgment. Thus, the defendant's above assertion

(3) As to the intrusion upon residence

According to the evidence duly admitted and examined by the court below, the defendant threatened the victim with the old pet and photograph of the victim as mentioned in the preceding paragraph, and threatened him with sexual intercourse and indecent act by entering several times with the consent of the victim frighten. Even if the defendant entered the victim's house with the consent of the victim, the expression of consent can be invalid by deception and intimidation, and even if the husband enters the residence with the consent of the wife for the purpose of sexual intercourse and indecent act, it is proper that the husband still remains in the control management relationship with the husband's house, and even if the husband enters the residence with the consent of the wife for the purpose of sexual intercourse and indecent act, it is not clear that the husband's house was broken out (see Supreme Court Decision 201Do868, Jun. 26, 1984; Supreme Court Decision 2008Do8566, Jun. 8, 201).

B. As to the crime No. 4 of the judgment below

According to the evidence duly admitted and examined by the court below, the defendant showed the attitude that the defendant continued sexual intercourse against the victim's will without being aware of the amount as stated in the judgment below 4.A.B., and it can be sufficiently recognized that the defendant received 300,000 won,80,000 won, and 500,000 won from the food victim, respectively, and the defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing on grounds of the defendant's grounds for misunderstanding of facts as to rape and indecent act by compulsion, and the judgment below is again ruled as follows through pleading.

On June 11, 2006, the Defendant 205, when driving a false phone with the victim non-indicted 2 (the 34-year old-old victim) who was suffering from the wrong phone, had a sexual intercourse with the victim in a state of her arm's length or once with the her face, and still had a sexual intercourse with the victim's face in a way that the victim would have continued to have a sexual intercourse with the victim's face known. The victim still her face as the old day by telephone from June 11, 2006 to June 14, 2006, and the victim did not inform the victim of the fact that the victim's family member had a sexual intercourse with her husband by sending the victim's photograph with the face of the her face where she was entering the her arm's length and the her body. The victim did not have a sexual intercourse with her husband because she did not have any good character. The same should also apply to the victim's family member.

1. Around 10:30 on June 24, 2005, the defendant was found to have been in front of the victim's house located in Goyang-si (Saeong-si and apartment building number omitted), and his photograph was taken before the victim's house and infringed upon the victim's house, from that time to October 18, 2005 by the above method, each of the above facts charged about the violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (the above 2. A. (1. (b)(c) included the facts charged about each of the sexual crimes described in the separate list and each of the above facts charged about the violation of the Act on the Punishment of Residential Intrusion, etc. (the above 2.1. (c) included in the facts charged about each of the crimes of intrusion upon residence, and even if each of the defendants was found to have committed each of the crimes of intrusion upon residence, it is not likely to seriously disadvantage the defendant

2. Raising awareness to keep money from the victim in return for suspending sexual intercourses against the victim's will;

A. On July 25, 2005, around 09:30 of the victim's house to find a sexual intercourse with the victim's house, prior to finding the victim's house, "on the victim's phone, the victim stated that "on the face of 300,000 won a photographer, the male will not end this sexual relationship, and if the victim refuses to do so, the victim seems to have continued to have a sexual intercourse with the victim." The victim received 30,000 won from the victim's house at around 10:30 on the same day from the victim's house at around 10:30 on the same day.

B. Around 14:00 on August 1, 2005, in the same manner as that of the preceding paragraph at the carpototour guest room located in 981, Seoyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, 2005, received KRW 80,00 from the victim; and

C. At around October 18, 2005, around 09:30, the above victim’s house received KRW 500,000 from the victim in the same manner as the preceding paragraph.

The summary of the evidence recognized by this court is as follows, except for the deletion of “each diagnosis letter against Nonindicted 2 and Nonindicted 3” in the summary column of the evidence in the judgment below, and therefore, it is identical to the corresponding column of the judgment below. Therefore, it is cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 319(1) of the Criminal Act (Influences in Residence, Selection of Imprisonment), Article 350(1) of the Criminal Act (Influences and Selection of Imprisonment)

1. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with Punishment and Punishment on October 18, 2005, which are the largest punishment and punishment)

1. Calculation in the number of detention days before sentencing;

Article 57 of the Criminal Act

In order for the defendant to have a sexual intercourse against the victim's will, the crime is very bad in light of the fact that the defendant chips to the victim's residence on several occasions, and on the other hand, the defendant commits several times of money from the victim on the ground that such a sexual relationship is discontinued.

However, after the defendant deposited KRW 10 million in the original trial for the victim, the defendant deposited the additional KRW 10 million in the original trial for the victim, and in consideration of the age, character and conduct, family environment, etc. of the defendant, and all the sentencing conditions shown in the arguments in this case, the punishment shall be determined as ordered.

1. The summary of each rape among the facts charged in the instant case is the same as the above 2.A. (1) (A). As seen above, this part of the facts charged falls under a case where the facts charged are not a crime or there is no proof of a crime, and thus, the Defendant is acquitted pursuant to Article 325 of the Criminal Procedure Act.

2. Of the facts charged in the instant case, the summary of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims Thereof are the same as the above 2.A. (1)(b)(C). As seen above, each rape and indecent act by force among the facts charged in this part of the charges in this case should be acquitted pursuant to Article 325 of the Criminal Procedure Act, since each rape and indecent act by force does not constitute a crime or there is no proof of a crime. However, as long as the guilty of each crime of intrusion by force included in this part of the charges in this part of the charges in this case is found, it shall not be acquitted separately from the disposition.

It is so decided as per Disposition for the above reasons.

[Attachment Form 4]

Judges Don Man (Presiding Judge) and Dok Kim Yong-han