(영문) 서울중앙지방법원 2018.10.2. 선고 2018고합545 판결

On October 4, 2017, around 06:30 on October 4, 2017, the Defendant: (a) laid off the part of the victim E (the name, the 19-year age) who was unable to resist due to the influence of the strokem from the strokem in Gangnam-gu Seoul, Seoul; and (b) inserted the sea into the part of the victim’s sound; and (c) inserted the part of the evidence into the part of the victim’s sound.

1. Legal statement of witness E;

1. A written statement prepared by the defendant;

1. Each police statement of E;

1. A report on internal investigation (field investigation) and a report on internal investigation (related to response to the results of appraisal of an emergency call for collecting evidence of sexual assault);

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The fact that the defendant puts the fingers into the part of the victim is recognized, but the victim was not able to resist at the time.

A. Although the degree of the formation of a conviction in a criminal trial ought to be beyond a reasonable doubt, it is not required to exclude all possible doubts that are unreasonable, and rejection of a conviction by causing doubts that have probative value without a reasonable ground is not allowed beyond the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decisions 94Do1335, Sept. 13, 1994); “reasonable doubt” referred to in this context refers to not all questions and correspondence, but to the reasonable doubt about the probability of facts that are inconsistent with the facts that are inconsistent with the logical and empirical rule, and thus, it should be based on this sexual trend that is grasped in relation to the fact-finding of the defendant, and thus, suspicion based on conceptual or abstract possibility cannot be deemed as being included in a reasonable doubt (see, e.g., Supreme Court Decisions 200Do1335, Sept. 13, 194; 206Do4165, Apr. 27, 2007). 205.

B. Comprehensively taking account of the following circumstances revealed by the evidence of the judgment, the Defendant was in a state of failing to resist, and the Defendant knew of this fact, thereby raising the victim’s fingers. The Defendant and the defense counsel’s assertion is not accepted.

1) On October 4, 2017, the victim stated to the effect that the victim had consistently been unable to resist at the time of committing the instant crime, consistently from the investigative agency to this court, that he was able to drink in a new wall, and that he was in a state of being able to resist. The victim’s statement to the effect that he was in a state of being unable to resist at the time of committing the instant crime. As seen below, the objective evidence, such as the C hotel CCTV images and the result of the victim’s blood appraisal, are consistent with the victim’s statement, as well as the victim’s statement. At around 11:00 on the day of the instant case, the victim was able to report the instant crime on the ground that he was able to have sexual assaulted in the state of being her clothes only after being broken at the said hotel. In light of the fact that the victim reported the instant crime, there is no doubt in the process of such reporting, barring any special circumstances.

The defendant and his defense counsel asserted that the victim's statement should be rejected because the victim's statement has been made more clearly and more time than time, but this is only deemed to have been embodied in the victim's oral response process according to the investigator's question. Thus, the credibility of the victim's statement cannot be rejected solely for the reasons alleged by the defendant and defense counsel. 2) According to the contents of the victim's entrance to the hotel room where the victim was able to take photographs and the above hotel room where the victim was able to take up, and the victim did not have been able to take advantage of the fact that the victim did not have been able to take care of the victim's right to self-determination at the time of the crime on October 4, 2017. The defendant did not have been able to find that the victim did not have been able to take care of the victim's body and the victim's remaining 6th floor at the time of the defendant's entry into the hotel, and that the victim did not have been able to take care of the victim's body at the hotel.

3) As a result of the analysis of the victim's emergency key for collecting evidence of sexual violence at the Seoul Science Investigation Agency of the Korea Institute, the victim's blood and stroke biphenylm was detected in the victim's blood and stroke, and the victim's strokem was exposed to abnormal reaction, such as stroke, stroke, stroke, donation, and stroke, and psychotropic drugs, and the victim was designated as the strokem, and the victim strokes and beer strokes in the alcohol house located in the Gangnam-gu Seoul Metropolitan Government Newdongdong-gu before strokeing the defendant, and 53 mars in the strokem. When considering the fact that the victim was stroke at the time of the crime of this case, the victim seems to have been unable to resist due to the influence of the stroke and alcohol ingredients at the time of the crime of this case.

4) At the stage of investigation by the prosecution, the defendant prepared a statement that "the defendant lost his mind for reasons of non-performance within the C hotel D located in Gangnam-gu Seoul, and lost his mind, and recognized the criminal facts that "in the state of non-performance for reasons of fluence" was committed (200 pages of investigation records) by referring to the motive of the crime and sexual impulse. There was a sexual impulse with the defendant. Although the defendant tried to have sexual intercourse between her mother and her mother, it did not seem that it would be a big issue. The reason why the defendant's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

Since it was judged that the crime of this case was not committed, the defendant was aware of the fact that the victim's condition was abnormal, even though he did not know of what reason the victim was unable to resist.

5) The Defendant asserted that he puts the victim’s fingers into the victim’s negative part with the victim’s consent. However, if the Defendant had sexual contact with the victim under the victim’s consent, he would have paid 60,000 won for the victim’s fingers, and the Defendant’s entry into the victim’s guest room would have been found to have exceeded the victim’s clothes, and would not simply have sexual contact with the victim’s fingers to the degree of inserting the victim’s fingers only. This is more natural to view the Defendant’s criminal punishment, such as the Defendant’s prosecutor’s statement, recognizing that the victim’s state is abnormal, and only sexual contact was made to the extent that the victim’s fingers were inserted into the victim’s negative part.

6) The Defendant asserts that the victim made a speech or behavior to allow sexual contact at the time, but the victim is not able to clearly memory as to whether the victim permitted such speech or behavior, as alleged by the Defendant, and even if the victim made such speech or behavior, it appears that the victim, who was unable to resist due to the influence of stroke-m, seems to have been in a state where the sexual decision making ability of the victim was significantly difficult, and that the victim’s behavior or behavior was deemed as the above hotel guest room, and the Defendant was able to know that the victim’s behavior or behavior was in a state where he cannot make a sexual decision, not based on the victim’s genuine intent

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297-2 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Exemption from an order for disclosure or notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that there is no history of criminal punishment against a sexual crime by the defendant, the registration of personal information of the defendant against the defendant, and the completion of a sexual assault treatment program, the defendant's age, occupation, occupation, family relationship, social relationship, the details and circumstances of the instant crime, other benefits expected by the disclosure or notification order, the effect of the instant crime, and the adverse and anticipated side effects, etc., the disclosure and notification of the defendant's personal information shall be deemed to be a special circumstance where disclosure or notification of

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018)

1. Reasons for sentencing: Imprisonment with prison labor for a period from one year to 15 years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Criteria for Sex Offenses, Type 1 (Quasi-Rape)

[Scope of Recommendation] Imprisonment of two years and six months to five years

* Application of descriptive sentencing guidelines: adult similar rape shall be reduced to 2/3 of the upper and lower limit of the scope of sentence.

[Scope of the revised Recommendations]

From August to April of one year and three; and

3. Determination of sentence;

The Defendant, in the prosecution, led to the confession of the instant crime, and at this time, denies the instant crime. The victim appears to have received sexual disrest, but the Defendant did not receive any suspicion from the victim, even though the victim appears to have received sexual disrest.

On the other hand, the Defendant had no record of criminal punishment prior to the instant case. The Defendant did not submit materials to see that the Defendant, by allowing the victim take in drugs containing the strokem ingredients, failed to resist the victim. The Defendant’s strokes the Defendant’s wife.

In full view of such circumstances as well as the defendant's age, character and conduct, intelligence, environment, circumstances before and after the crime, and various sentencing conditions as shown in the trial process, the scope of recommended sentencing guidelines shall be somewhat lower than the scope of recommended sentencing guidelines, and the punishment shall be determined as ordered by law within the scope of the sentencing guidelines.

Registration and submission of personal information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent authority pursuant to

Judges

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

Note tin

1) No. 3

2) The defense counsel is different from the time shown in CCTV images and the time taken from the access of the guest room of C hotel D. Thus, the defendant according to the above guest room access details.

However, CCTV equipment installed in C hotel cannot be identified as 's motion reduction method', although it is alleged that time for the guest room of both the person and the victim cannot be specified.

In contrast to the absence of the date and time of shooting, the details of guest rooms for the C hotel D guest rooms are recorded mechanical and electronically.

the time when the defendant paid the C hotel fee by account transfer, and there is no other evidence to suspect the accuracy.

Considering the above entry details, it is reasonable to specify the time of entry and departure of the defendant and the victim according to the above entry details.

3) The victim stated in the investigative agency that the victim is shorter than the cupped World Cup, which is the death of the investigative agency, and that the (inception) Gu is broad cruel (inception page 50 pages).

4) This seems to be a clerical error in October 4, 2017.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제16조 제2항

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제47조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률

-아동ㆍ청소년의 성보호에 관한 법률 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제50조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제56조 제1항

-형법 제53조

-형법 제55조 제1항 제3호