Defendant

Prosecutor

Maximum mileages (prosecutions) and courtrooms (public trial)

Attorneys Kim Gi-Gyeong (Korean National Assembly)

Gwangju District Court Decision 2014Gohap278 Decided February 5, 2015

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

According to the evidence submitted by the prosecutor, the court below acquitted the defendant of the charges on the ground that the defendant's act does not constitute force, although the defendant had sexual intercourse with the victim by force. Therefore, the court below erred by misunderstanding of facts or misunderstanding of legal principles.

2. Ex officio determination

Before the prosecutor's judgment on the grounds for appeal, the prosecutor applied for amendments to the indictment in exchange as stated in the facts charged in the following "Amended facts charged" in the judgment of the court below. Since the subject of the judgment was changed by this court's permission, the judgment of the court below is no longer maintained.

Therefore, without examining the grounds for appeal by the prosecutor, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the grounds for appeal by the prosecutor.

3. Determination of the changed facts charged

A. The revised facts charged

On July 2014, the Defendant posted a horse to the victim Nonindicted Party (hereinafter “△△△△△△○○”) through the “△△△△△ Don Pumping” in a smartphone, and introduced himself/herself as “the second grade of a high school”, and sent another person’s photograph to the victim as if he/she were his/her photograph, and sent it to the victim for dialogue with the victim. The Defendant continued hosting with the victim, and continued printing with the victim, instructed the victim to talk with the victim. The Defendant: (a) demanded that “the sending of the chest by affixing his/her chest photograph”; (b) the Defendant sent the victim by affixing his/her chest photograph on five occasions; and (c) attempted to have sexual intercourse between the victim and the victim.

On August 2014, 2014, the Defendant: “A female scaming to scam with good fact, and I want to do so. I do so. I want to do so?” The victim’s playing scambling is called “I amb? I amb? I am amb?” The victim’s “I ambling to scam and die, and if I want to do so, I ambling to scam?? I am scam? I am to see how I ambling? I am ambling? I am? I want to see that I would ambling to the victim because I want to ambling?” while I want to ambling to “I ambling women? I would ambling women? I want to ambling the victim’s sexual intercourse?”

On August 2, 2014, at around 09:00 on August 2, 2014, the Defendant introduced the victim as “ship of 00 ○○○○○” at the bus terminal, and loaded the victim on the vehicle, and thereafter, parked on the vehicle by using the fact that it is difficult for the victim to deviate from the mixed location due to the typhoon at the time.

When the Defendant believed himself as “○○○○’s prior worship” and removed a woman scinging him, the Defendant continued to have sexual intercourse two times with the victim, stating, “I am off the clothes with the back seat of the vehicle, and scam off the clothes in one time by inserting the Defendant’s sexual organ into the back seat of the vehicle, and “I am off the victim’s sexual organ, I am sexual intercourse?” but, “I am off the victim’s sexual organ? I am am off the victim’s sexual organ? I am “I am off the victim’s sexual organ? I am off the victim’s sexual organ?” but, “I am up to the point of five I am off. I am off the other. I am off. I

Accordingly, the defendant has sexual intercourse with the victim who is a child or juvenile by fraudulent means.

B. Determination

In the crime of sexual intercourse with a child or juvenile through a deceptive scheme under Article 7(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse, a deceptive scheme refers to the act that an offender misleads the other party for the purpose of sexual intercourse by taking advantage of such in-depth state of the other party that causes mistake, mistake, perception, and site for the purpose of sexual intercourse. Here, mistake, perception, and site for sexual intercourse refers to mistake, perception, and site for sexual intercourse itself, and mistake, awareness, and site for other conditions not recognized as indivisiblely related to sexual intercourse (see Supreme Court Decision 201Do5074, Dec. 24, 2001, etc.).

In this case, the victim is clear by the facts charged that he had sexual intercourse with the defendant with his own awareness of the meaning of sexual intercourse, and the victim is sent to a woman who is engaged in sexual intercourse by photographing the face of a sexual intercourse rather than the sexual intercourse itself, and the victim is far away from that woman," and the above act of the defendant does not constitute a deceptive scheme, inasmuch as it only belongs to the defendant with regard to other conditions that are not recognized as indivisiblely related to sexual intercourse. Thus, there is no evidence to acknowledge that the defendant had sexual intercourse with the victim through a deceptive scheme.

4. Conclusion

The facts charged in this case, which was changed in exchange at the trial of the political party, constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article

Judges Seosung (Presiding Judge) Kim Sung-ju