2018Mahap510 Rape

A

Bags (prosecutions) and paintings (public trials)

Law Firm Oun, Law Firm

[Defendant-Appellant]

August 29, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Criminal facts

around October 3, 2017, the Defendant: (a) moved alcohol from Annsan-si’s drinking house to E, B, E, and E’s friendship victim F (n, 22 years of age) at Annsan-si’s drinking house; (b) the Defendant met with E and H; and (c) the Defendant went into the victim’s body after having sexual intercourse with E and H; (d) the Defendant went into a dispute after having sexual intercourse with E and came to contact E with B; (b) around 23:22 of the same day, D was completely off clothes to make a sexual intercourse with D, and the Defendant took the victim’s body by inserting the victim’s body’s assault into the victim’s body.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F and E;

1. Partial statement of witness D;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Partial statement of the police interrogation protocol of the accused;

1. Some statements in the suspect examination protocol of the prosecution concerning D;

1. Some statements made in the police interrogation protocol regarding D;

1. Statement made by the police of the F;

1. Reports on internal investigation, photographs at the scene of the telecom, CCTV analysis photographs, Messengers' records at the time of committing the crime submitted by the suspect D, the telephone statement submitted by the suspect D, the result of analysis and response on the victim's blood blood alcohol level analysis, and the victim's genetic

Application of Statutes

1. Article applicable to criminal facts;

Article 297 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 and 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 can be seen as having an effect to prevent recidivism by the defendant, the defendant's age, 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 crime, and the adverse and anticipated side effects, etc., the disclosure and notification of the defendant's personal information shall be

1. Exemption from an employment restriction order;

In light of Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by January 16, 2018), the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that the defendant has no record of punishment for a sex offense) is difficult to readily conclude that the defendant has access to a sex offender by taking advantage of his/her occupation and position or is likely to readily block sexual crimes or to pose a risk of recidivism, or that there is a risk of recidivism. In addition, in light of the defendant's age, family environment, and employment restriction order, the disadvantage of the defendant was put by the defendant, and the effect of preventing sexual crimes that may be achieved therefrom, the determination

(2)

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The defendant was in a sexual intercourse with the victim, and was not raped by assaulting the victim.

2. Determination

In full view of the following facts and circumstances revealed by the evidence of the judgment, the victim’s statement is reliable beyond a reasonable doubt. As such, the Defendant’s sufficient assault to make the victim difficult to resist the victim’s resistance can be recognized as rape. The Defendant and the defense counsel’s assertion is not acceptable.

1) The victim is enjoying in the beds with the victim in this law and investigative agency, and the victim was able to talk with the victim, such as the victim's coming to her own contact with E, and the victim came to her sexual intercourse with D, and the defendant was 'Ch' to her sexual intercourse with D. Then, the victim was her both arms and the body of the victim was her body, so that the victim could not move into her body and the victim could not move into her body, and made a consistent statement with the detailed contents that inserted the sexual organ.

On the other hand, in the internal investigation report, it is inconsistent with the victim's statements that the victim did not have any other location than the victim because it stated that "the victim has sexual intercourse with the victim's lower part of the victim's lower part of the victim." However, it appears that the police officer erroneously understood and stated the victim's statement, or made a false statement because it could have been made by the victim too far after the victim was damaged, and considering the consistent statement made by the victim to the effect that the victim suffered only the victim suffered from the body in this court and the investigative agency, it cannot be a circumstance to suspect the credibility of the victim's statement.

2) The victim, from the moment when the defendant was intending to insert his sexual flag to the time when the defendant discontinued, she called her male E-gu or her speech to the time when the defendant discontinued, she went to the entrance in the state where the defendant left the arms (175 pages of the investigation record), she went to the door in the state where the defendant left the arms, she was called 'D' and she was called 'Id with the door, 'Id' and 'I want to leave the door in the body and go to D', and she did not want 'I want to break', 'I want to do so', 'I want to break the defendant', 'I asked to do so', 'I asked to do so' and 'I asked to do so', 'I asked to do so' and 'I asked to do so', and 'I asked to leave the prosecutor's office' and 'I tried to answer the situation immediately after the crime and she made the victim's statement.

3) On October 3, 2017, at around 23:59, 18 minutes after leaving the room, the victim reported rape to the police station of the member, and the victim reported rape. The victim was reported immediately after the damage, such as leaving the her body outside the her body, leaving the her panty panty, leaving the her body outside the her body, leaving it out, etc., and making it difficult for the victim to make the above statements at the time when 18 minutes do not go against. In addition, immediately after the crime of this case, E was not known of the sex relationship between the Defendant and the victim. Therefore, it is difficult to understand that the victim was raped to the Defendant in order to conceal the fact of the sex relationship with the Defendant, and it is difficult to understand that the victim was without any motive for the Defendant by bearing the risk of the crime of false accusation on the part of the victim.

4) 피고인은 성기를 삽입할 당시에는 피해자가 아무 말이 없다가, 술이 깼는지 갑자기 'E 어떻게 해'라고 하였고(수사기록 251쪽), 성관계 중 하지 말라고 큰소리를 질러서 놀라면서 성기를 뱀과 동시에 사정하였으며(수사기록 253쪽), 삽입 시간은 1분도 안 되었다고 진술하였다(경찰에서는 40초도 안 되었다고 진술하였다. 수사기록 61쪽), 위와 같은 피고인의 진술에 의하여도, 피해자가 삽입에 동의하는 의사를 표시한 적이 없고 삽입한 지 몇십 초 만에 삽입 행위를 중단하라는 의사만을 강하게 표현한 사실을 알 수 있는데, 이는 처음부터 성관계에 동의하지 않은 사람의 행동으로 봄이 자연스럽고, 삽입에 동의한 사람이 몇십 초 만에 마음을 바꾸어 완강히 거부했다는 것은 쉽게 이해하기 어렵다.

5) In light of the following circumstances, the victim seems to have expressed his/her intention to continue sexual intercourse with D and no intention to sexual intercourse with the Defendant. The victim and D entered △△△ around 22:35 on October 3, 2017, with the view to sexual intercourse, and 23:00 on around 23:00, he/she saw that he/she was able to talk with D and she was able to make a show, and the defendant was able to make a show at around 23:22 before her call (the investigation record 280 pages, 101 pages). AD first stated that the victim sent his/her message to the Defendant at △△△△△△, 23:50, 23:50, and 44: The victim was able to have made a statement to the Defendant and her body of the victim, and then the victim was able to have made a statement to the prosecution (the victim was 2).

6) The Defendant made a statement to the effect that he entered into the Defendant when he called to D, stating that he was aware of the victim by asking the Defendant and the victim whether he was coming to and going to the Defendant. However, in light of the following circumstances, it is difficult to deem that the victim was allowed to enter the Defendant when he anticipated that he would come to sexual intercourse with the Defendant. The time when the △△△ was sent to the Defendant is 41 seconds, and it is difficult to view that D was an explanation about the situation and intent of the Defendant’s face and it is difficult to take a part in seeking the consent of the victim. Not only the △△△△△ but also the Defendant and the Defendant, even though they were called to the Defendant, they were made a statement to the effect that he was unaware of the Defendant’s face-to-face and play. △△△△△△△△ was a speech or behavior by which the Defendant did not have an intention to have sexual intercourse with the Defendant, such as having no intention to have sexual intercourse with the Defendant.

On the other hand, the victim is unable to memory the fact that D was in the Defendant at around 23:2. However, since the Defendant’s 41 seconds immediately before entering the Defendant’s home and talked about E and hedging, there is room for the victim’s view that the above phone call was rarely distinguishable from the Defendant’s act of having entered the Defendant’s own home. Considering the fact that the victim was under the influence of alcohol to a level of 0.095% of the blood alcohol concentration at the time, the victim’s statement that the above phone is not important is acceptable, and it is difficult to doubt that the victim partially concealed the fact or made a false statement.

7) The Defendant made a statement at an investigative agency that he she saw that he she she she she she was she and she was she well she, and that he she she she was naturally she was she and naturally she was shed, and that he she was she was shed in the bed when she turned her body back to the bed (251 pages of the investigation record). In relation to this, D she made a statement at this court and investigative agency that she was she was shed with the victim by stating that she was she was shed with the victim and she was shed with the victim, and that she was she was she was shed with the victim, and that the Defendant was she was shed about to take the part of the Defendant's statement and part of her statement, and that she was she was shed with the victim's body.

However, in light of the following circumstances, it is difficult to believe the statement by the Defendant that the victim and the Defendant naturally had sexual contact while talking about obscene talks. △△△△ is inconsistent with the statement by the Defendant that the Defendant was present at the end, the end, the end, and the end, of the invasion of the victim (the page of the examination of the witness and witness D) of the victim who was exposed to the lower court and the prosecutor’s office, and that the Defendant was flicked by the victim (the page of the examination of the witness). AD stated that this court and the police police stated that it was not memory of the victim’s head in what form the Defendant’s body was used, and that it was a sexual act, but did not state specific contents as to whether it was a sexual act.

A The Defendant and the victim stated that the Defendant only talked about the work that had been at the conference at the time, and there seems to be no content that may cause sexual impulse between the Defendant and the victim. In particular, unlike the Defendant’s statement that there was a constant atmosphere that “I am,” they called “I am,” and that “I am am, I am am her 'I am' (103 pages of investigation record). The Defendant stated that the Defendant did not interfere with sexual intercourse even if I am reported in this court. However, in light of the fact that the Defendant stated that I am sexual intercourse with the victim even if I am, D was sexual intercourse with the victim (274 pages of investigation record), it cannot be deemed that there was a special circumstance that the Defendant could conduct sexual intercourse with the victim even if D at the time of the instant case, even if I am.

1. Reasons for sentencing: Imprisonment with prison labor for a year and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of the Sentence] General Criteria for the Prevention of Sex Offenses Act, Type 1 (General Rape) / Imprisonment for 2 years and 6 months to 5 years (Basic Area)

3. The crime of this case by which a sentence of sentence was rendered is the case where the defendant raped a female-friendly sexual intercourse victim who had attended at the time. The victim appears to have suffered a considerable physical and mental pain due to the crime of this case, and the victim sought a severe punishment against the defendant. Nevertheless, the defendant did not endeavor to compensate for the victim's pain up to now.

However, it appears that the defendant was the first offender and was under the influence of a certain degree under the influence of alcohol, and the degree of tangible force used by the defendant for the crime of this case is considered as favorable circumstances where the degree of force used for the crime of this case is not significant.

In addition, the defendant's age, character and conduct, health status, family relationship, background leading to the crime, means and result of the crime, and the circumstances after the crime, etc., the punishment as ordered shall be determined in consideration of the various sentencing conditions shown in the arguments of this case.

Registration of Personal Information

Where a conviction on the crime in the judgment becomes final and conclusive, the defendant constitutes 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 agency pursuant to Article 43 of

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins