(영문) 부산지방법원 2013.10.11.선고 2013고합271 판결

Information on the accused shall be disclosed through an information and communications network for six years, and information on the notice shall be notified for six years.

Reasons

Criminal facts

Around 04:30 on August 29, 2010, the Defendant came to the house of the victim D (the age of 27) of Jung-gu Busan District Cudio (hereinafter “Cudio”) No. 501 (the age of 27). In a case where the Defendant resided in approximately 10 years from around 2000 to May 2010, the victim’s house studio 502, which was the victim’s house home, and went to the Defendant’s house for about 10 years from around 2010, the Defendant entered the 501 bendro through the 6th common space of the 2nd floor of the instant case, and entered the Defendant’s house through the said bendro, and opened the house string of the victim’s house and the string of the string and the string of the string.

The defendant is unable to resist the victim who was divingd by the shouldering the victim's finger, the victim's finger is sound, and the victim's finger is 30cm in length prepared in advance for the victim's face of the shoulder material, and the defendant's finger is able to cover the victim's finger, and the defendant's finger is 30cm in length, and he is able to cover the victim's finger, and he is able to cover the face. In this case, he is unable to resist by threatening the victim's finger; he is able to resist by threatening the victim; he is able to open the victim's finger from the victim's finger and panty; and he is able to open the victim's finger to the victim's finger, but he did not open the victim's finger to the part again by inserting the victim's finger and the part of the victim's finger and the part of the victim's finger; and then, he is able to open the victim's finger to the victim's finger and the part of the victim's finger again.

The defendant continued to be out of the victim's body and made it clear, and then, the victim has frightened about 10 times the victim's sexual organ with his/her inner organ being frightened by threatening him/her, and caused him/her to be frighten about 10 times the victim's sexual organ on the part of the defendant's vessel, and then inserted about 3 times the victim's sexual organ into the part of the victim's sound, but did not continue

피고인은 계속하여 피해자에게 피고인의 성기를 잡아 흔드는 시늉을 직접 하며 "니가 딸딸이라도 쳐주라."고 하여 피해자로 하여금 약 5분간 피고인의 성기를 잡아 흔들게 하여 사정을 하였다.

As above, the Defendant invaded upon the victim’s house, threatened the victim with a deadly weapon, forced the victim to resist his resistance, and raped the victim.

Summary of Evidence

1. Witnesses D and E's respective legal statements;

1. A protocol of examination of part of the defendant by prosecution;

1. Each police statement concerning D;

1. Investigative reports and identification of the person concerned of sexual assault, etc.;

1. On-site photographs;

1. Application of the Act and subordinate statutes to the inquiry reply to the National Police Agency;

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

Article 4(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012); Article 297 of the Criminal Act / [Selection of Imprisonment with prison labor: Provided, That the upper limit of imprisonment with prison labor shall be governed by the main sentence of Article 42 of the former Criminal Act (wholly amended by Act No. 10259, Apr. 15, 201)]

Article 47(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 49(1)2 and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order to notify;

Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 50(1)2 and (4) of the Act on the Protection of Children and Juveniles against Sexual Abuse

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The Defendant was not at the scene of the crime at the time of the crime of this case, and did not keep memory at the scene, but did not commit the crime like the facts charged in this case.

2. Determination

A. Case history

Comprehensively taking account of the evidence and the report of occurrence of the case, the following facts are acknowledged. (1) On August 29, 2010, the victim told E, a manager of the room of this case, that he would put the victim into bad work, and subsequently, E would put the victim into the room of this case. On August 29, 2010, around 21:00 of the same day, on August 29, 2010, on the police around 21:00 of the same day, E reported that the non-suspected suspect who was on the 6th floor of the room of this case was "a indecent act by indecent act by force by not later than 07:20 on the same day after threatening the victim who was diving with the knife in the plan by impairing the room of this case."

2) On August 30, 2010, the day following the instant day from around 11:00 to 14:00 of the same day, the victim submitted two fraud gate used by the police when putting water to the police and to the criminal (the fraud misunderstanding used when the criminal was worn out and the victim was broken out) when putting water to the police, and the police collected two sculptures gates in the lower end of the fraud misunderstanding and the upper part of the damage. 3) On August 31, 2010, the victim was present at the Busan Sea Women’s Center and stated the instant damage.

4) On September 2010, the police requested the National Institute of Scientific Investigation to analyze genes on the parts taken from the neck hand, arms, and shots taken from the above garment part. However, in each face, only the same female gene type was detected in the same part, and the above gene type was not detected in the part in possession. Upon receiving a reply from the National Police Agency’s Scientific Investigation Center, the police asked the National Police Agency for the appraisal of each sculpture taken from the shots as above, but was given a reply that the shots were not found in the shots search system of the National Police Agency.

5) After March 2013, the police again requested the Scientific Investigation Center of the National Police Agency to conduct an appraisal of the sculptures taken as above according to the National Police Agency's comprehensive inspection plan in 2013, and one fingerprint taken from the inner inside of the fraud, as a result of the appraisal, is identified as the defendant, and the defendant was identified as the suspect. In the course of the victim's investigation for reinforcement investigation on March 21, 2013, the victim showed the victim's resident registration certificate photograph in the process of the victim's investigation for reinforcement investigation, but the victim stated that the victim was the same as the defendant was fit, considering his/her face part, his/her whole face, and the whole face. On April 1, 2013, the victim shown that the victim was the defendant who was in the victim's criminal identification room. However, the victim's face, face, overall form, and shape was considered as the victim's face.

B. The victim's credibility of the victim's identity statement

1) In the criminal identification procedure based on the appearance, etc. of the suspect, the fact that one person who has been a witness alone or only one photograph of the suspect presented to the witness to confirm the criminal is due to the limitation and inaccuracy of human memory and the possibility that the suspect or a person on his/her photograph is suspected of being a criminal under the specific circumstances, the witness’s statement in the criminal identification procedure by such a method may be deemed to be under the low credibility unless there are any additional circumstances such as whether the suspect was a person who has been aware of the suspect before or when he/she had been aware of the suspect, other circumstances that could suspect him/her as a criminal exist in addition to the victim’s statement (see, e.g., Supreme Court Decision 2003Do7033, Feb. 27, 2004).

2) However, in light of the following circumstances, the victim’s statement by which the Defendant was designated as the offender may be acknowledged as having high credibility despite the procedural defect in which the victim only received the Defendant’s photograph at the time when the Defendant was designated as the offender, or made the Defendant confirm only the form of the Defendant.

① The Defendant’s fingerprints was discovered in a brush used by the Defendant when drinking water, and the Defendant and his defense counsel present the possibility that the Defendant had 501 studio 502 at the time when the Defendant resided in the instant studio 502, or had the Defendant fingerprinted in the said studio in the process of the victim’s director-general. However, the victim was placed in the instant studio at the end of April 2010 in the instant studio, which had been used in the instant studio, and did not put the boxes in the hallway and the stairs of the hallway, which caused the hallway, and the victim stated that there was no such possibility as claimed by the Defendant and the defense counsel prior to the instant studio.

② 피해자는 2010. 8. 31. 부산해바라기 여성아동센터에 출석하여 이 사건 피해사실에 관하여 진술하면서 범인의 용모에 관하여 다음과 같이 구체적으로 진술하였으며, CCTV 확인결과 2010. 8. 29. 07:20경 피해자가 진술한 범인의 인상착의와 같은 사람이 이 사건 원룸에서 나가는 장면이 촬영된 점. '어두워서 잘 보이지는 않았지만 야구모자 형태의 검은색 계열의 모자를 썼고 검정색 계열의 뿔테안경을 썼고 피부가 안 좋았습니다. 얼굴이 넓적했는데 생김새는 자세히못 봤고 여드름 자국인지 땀구멍인지 뺨 부위가 더러웠으며 피부가 까무잡잡했고 손이 많이 시커맸습니다. 110 사이즈로 보이는 흰색 반팔티셔츠를 입고 있었는데 가슴 부위에 기하학적 특이한 문양의 선들이 그려져 있었고 바지는 하늘거리는 천의 8부 청바지를 입고 있었고 흰색 운동화를 신고 있었는데 신발을 신은채로 들어 왔습니다. 목소리 나차림새를 봐서는 30대 후반으로 보였습니다'

③ On March 21, 2013, at the police investigation, the victim made a statement "as to the question of whether he/she memorys the offender's appearance prior to being presented his/her photograph, the victim stated that he/she had the horns of rhinoceros (which seems to be a clerical error in the horns of rhinoceros), the skin was good, and the face was just one," and described as "as to the appearance of the offender at the time of damage, it is almost the same as at the time of damage."

④ On April 1, 2013, the victim reported the face of the defendant in the criminal identification room at the time of the police investigation, and made a statement that the defendant was unable to look at the face more than the time of the crime. At the time of making the above statement, the victim did not have any information that the defendant was missing before making the statement.

⑤ The victim used her mother and child at an investigative agency and this court stated that she died of her face, she continued to see her face while she was in the room, her face, and she did not have to see the offender's face. However, 1) The offender remains in the victim's house from 04:30 to 07:20. Since the date of the occurrence of the instant case, she appears to be her face so that she could sufficiently identify her face (the victim also stated that she was her face from 06:30 to her face). 1) The offender remains in the victim's house, and even if she considered her face as her face, she could sufficiently report the outer and face features of the victim's face and her face, and the victim's memory is not easy, such as this case.

(6) On July 12, 2013, three years after the date of the instant crime, the victim appeared at this Court and stated again in detail on the situation at the time of the instant crime. The victim’s statement on the process of the instant crime is the same as the statement made at the Busan Sea and Child Center on August 8, 2010, and 31. Thus, it is difficult to expect that the victim’s memory has been deteriorated due to the passage of time.

The victim stated in this court that the victim is accurately memorying the voice because he talked about 3 hours at the time of the crime. The voice alone, in order to confirm whether the victim can be identified as a criminal, it is possible to install a shielding facility in the court in order to install the shielding facility in order to confirm whether the victim can be identified as a criminal, and can see the body of the criminal at the time of the crime in this case with a sular knife. B. B. b. b. b. c. b. c. c. c. c. c. c. c. b. 2, including the defendant, and the victim identified 2 the victim's voice at the time of the crime in this court. After confirming the defendant's face through a video newspaper system, the victim identified b. 3, including the defendant, more faces face at the time of the crime, but it seems that it seems that the body was similar to the criminal at the time of the arrest, making a statement similar to the criminal at the time of the crime in this case.

⑧ 피해자는 범인이 피해자에게 어떻게 들어왔는지 궁금하지 않느냐고 묻더니 6층 공용베란다에서 5층 베란다로 뛰어내린 후 바깥쪽으로 해서 열려져 있는 샷시문을 통해 들어왔다고 알려주었다고 진술하였는데, 피고인은 2000.경부터 2010. 5. 18.경까지 이 사건 원룸 502호에 거주하였는바(증인 E의 법정진술, 피고인의 검찰에서의 진술), 피고인은 검찰에서 위와 같이 이 사건 원룸에 거주할 때 집 열쇠를 가지고 오지 않은 경우에 6층 공용 공간을 통해서 5층 501호 베란다로 뛰어내린 후에 501호의 베란다를 통해서 502호로 들어간 사실이 있다고 진술한 점.다. 피고인의 현장부재 주장에 관한 판단

Around August 29, 2010, the defendant and his defense counsel asserted that the defendant's pro-Japanese F was at the G main points at the time of the instant case in light of the fact that the defendant's pro-Japanese F was working as a manager at the G main points at the G main points at the time of the instant case, and according to the statement in this court and the statement in subparagraph 1 of the evidence submission of the witness F and the defense counsel at the above G main points at the above G main points, it is recognized that the above settlement was made at the above G main points at the above time, but the witness F stated that the defendant was at the time of the above G main points at this court, whether the defendant directly received his card at the above settlement point, whether the defendant was paid at the above settlement point at the above time, and whether the defendant was at the above settlement point at the above time, it is difficult to see that the defendant's on-site absence was proven only by the above settlement details.

D. Sub-committee

Therefore, according to the evidence of each judgment, it is recognized that the defendant committed the crime of this case, and the above assertion by the defendant and the defense counsel is not accepted.

Reasons for sentencing

[Scope of Punishment] Imprisonment of 5 years to 15 years

【Scope of Recommendation】

○ Determination: Sexual crimes, general standards, rapes (subject to 13 years of age or older), special rapes (subject to 2 years of age or more), 00 special rapes (subject to 2 years

Aggravations: Aggravated and Abnormal Infringement

○ Scope of Recommendations: Imprisonment with prison labor for up to 6 years up to 9 years (up to 5 years);

[Decision of Sentence] The crime of this case with 6 years imprisonment was committed by a defendant by ratizing the structure of the studio of this case, which the defendant had been living before the towing, and then threatened the victim with the knife, rape for less than 3 hours, and let the victim act similar thereto. In light of the circumstances leading up to the crime, the nature of the crime is very heavy, and the victim wanting to punish the defendant strongly by taking into account the following facts: (a) the crime of this case is serious; and (b) the victim is strongly unable to carry out diving even until now; and (c) the victim is strongly seeking to punish the defendant.

However, there is no record of criminal punishment, the maximum sentence of imprisonment at the time of this case was 15 years, etc. shall be more favorable, and the punishment shall be determined as ordered in consideration of various sentencing conditions shown in the arguments of this case, such as the age, character and conduct of the defendant, and family relationship.

Registration of Personal Information

Where a conviction becomes final and conclusive on the crime of this case, which is a sex offense subject to registration under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant shall be a person subject to registration of personal information under Article 42 of the aforesaid Act and shall be obligated to submit personal information to the competent agency