In a case where the Defendant was indicted for quasi-rape of quasi-rape on the ground that, in light of all the circumstances, in a case where: (a) the Defendant was indicted for quasi-rape of quasi-rape of a person who had been under the influence of alcohol by drinking alcohol over five times with the woman A, who had been in contact with each other for about two years prior to drinking; (b) Company A, who was under the influence of alcohol, used the state of difficulty to resist; (c) Company A’s refusal to resist at the time; and (d) the Defendant had sexual intercourse with the Defendant, who was aware of the defectiveness or the state of difficulty to resist; and

The defendant was prosecuted for quasi-rapeing by taking drinking alcohol over five times with a woman Gap who had been in contact with each other for two years prior to his or her age and drinking alcohol, and committing sexual intercourse with Gap by taking advantage of his or her state of difficulty to resist.

The case holding that it is difficult to readily conclude the relationship between the defendant and the defendant as to whether he had sexual intercourse with the victim at the time of the de facto marriage or not, considering the following: (a) the fact that two people naturally enter the CCTV image around the telecom covered by the defendant and Gap, and at least four hours of rest after he entered the telecom; (b) the fact that the defendant appears to be simple memory as to the situation up to the time when he entered the telecom, and the defendant made a statement that he had sexual intercourse with the victim immediately after the sex relationship, and the statement of the defendant was generally consistent; (c) the defendant was not only at the time of the sex relationship with the victim, but also at the time of the de facto marriage, it was difficult to view that the defendant had a very pro-friendly relationship with the victim at the time of the de facto marriage, and that it was difficult to view that the defendant had a high-friendly relationship with the victim at the time of the de facto marriage, and that there was no change in the circumstance or influence of the victim's sexual intercourse with the victim at the time of de facto marriage.

Articles 13 and 299 of the Criminal Act; Articles 307, 308, and 325 of the Criminal Procedure Act

Defendant

Delaying:

Law Firm Sam-woo, Attorneys Doo-sung et al.

The defendant shall be innocent.

The summary of this decision shall be published.

1. Facts charged;

Around March 2018, the Defendant came to know of the victim Nonindicted Party 1 (n, 36 years of age) through the introduction of a branch, and maintained friendship with each other from that time.

At around 15:00 on March 14, 2020, the Defendant dices alcohol with the Defendant’s son, the victim, and the Defendant’s son were home first, and the Defendant her son went home first, and the Defendant her son got home at around 00:44 on March 15, 2020, but the Defendant her son was under the influence of alcohol, but her son was under the influence of alcohol.

On March 15, 2020, from around 05:00 to 08:00 on the same day, the Defendant had sexual intercourse by inserting the Defendant’s sexual organ into the part of the victim, excluding the gap in the situation where the victim was unable to resist because he was under the influence of alcohol, and inserting the victim’s sexual organ out of the victim’s mouth, and inserting it into the part of the victim’s sound.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or physical state of difficulty.

2. Summary of the defendant and his defense counsel's assertion

At the time of the case, the victim was not unable to resist, and the defendant was aware that he had the implied consent of the victim, and thus, he cannot be recognized as the intention of the crime of quasi-rape.

3. Determination

A. Relevant legal principles

1) The crime of quasi-rape referred to in Article 299 of the Criminal Act is established by having sexual intercourse with a person’s mental disorder or state of failing to resist. In order to constitute such crime, the victim’s “state of mental disorder or of failing to resist” as an objective constituent element, and furthermore, as a subjective constituent element, the victim’s awareness of the state of the victim and intent to have sexual intercourse with the Defendant by using such awareness. Here, “state of failing to resist” refers to cases where psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than mental disorder in balance with Articles 297, 297-2, and 298 of the Criminal Act (see Supreme Court Decision 2009Do2001, Apr. 23, 2009).

2) The burden of proving the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction is to be based on the evidence of probative value, which makes a judge sure that the facts charged are true to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2008Do4467, Jul. 24, 2008).

B. Specific determination

1) The following circumstances can be acknowledged by each evidence duly adopted and investigated by the court of this case, namely, ① the victim started drinking with the defendant around March 14, 2020, which was the day before the case, around 3:0 p.m., around March 14, 2020; ② the defendant appears to have drinking more than the ordinary level of drinking by bringing the drinking together with the defendant, 2) the defendant, and the defendant also stated at an investigative agency that the victim was under the influence of drinking, such as the victim's getting out of the five drinking place after finishing the five drinking place with the victim, and making a statement that the victim was under the consent of the victim at the time of the first investigation into the police, ③ the defendant stated that the victim was under the consent of the victim at the time of the second investigation into the police, and that there was no doubt that the victim was unable to resist sexual intercourse, and that the defendant changed his statement to the effect that he did not have any consent to commit the crime, etc. by making use of the victim's normal state of drinking or sexual behavior.

2) However, examining the following facts and circumstances acknowledged by each evidence duly adopted and investigated by this court in light of the aforementioned legal principles, it is insufficient to view that the evidence submitted by the prosecutor alone was proven to the extent that there is no reasonable doubt as to the fact that the victim was in a state of mental or physical disability or failing to resist at the time of the instant case, and that the Defendant was sexual intercourse with the victim by recognizing the victim’s mental or physical disability or failing to resist,

A) Whether the victim was unable to resist

(1) Examining the CCTV images that the Defendant and the victim had been accommodated on the day of the instant case, the Defendant and the victim left the taxi on March 15, 2020, when the Defendant and the victim got out of the taxi on March 15, 2020, when the Defendant and the victim first moved to the telecom, and the victim could confirm the situation of entering the el. At the time, the victim could not get out of the body, or the Defendant did not start up or dup, but rather naturally walk the victim (Evidence 32, 33 of the evidence record, the investigation report of the evidence list No. 6 CCTV image CD).

(2) In accordance with the statement of the Defendant and the victim’s investigative agency, it seems that the two persons entered into the Moel room, not immediately have sexual intercourse, but had sexual intercourses between 4 hours to 5:00 am and 8:0 am and 8 hours later, and that there was sexual intercourses between 5:0 hours to 5:00 am and 8:00 am and 4 hours later, it can be seen that at least two persons had sexual intercourses at the time of rest.

(3) The victim made a statement at the investigative agency about the part of memory in the situation before and after the instant case as follows. Examining the content, most of the situation after the drinking place and up to the time of sexual intercourse seems to be unsatisfy, but the victim seems to be satisfying.

In this context, the Defendant and the 2-lane in the body of the Defendant in the main text move in to the three-lane △△△△△△△△△△△△, and thereafter, the two-lane son were in the middle shortest. / The degree of memory was that the Defendant was at the time, and the police was at the time, and that the Defendant was at the time. The Defendant was faced with the face, and the Defendant was at the time. / The Defendant was at the wind that he was at the right time in a sexual relationship with the Defendant, and the Defendant was at the end of the eight-lane dives, and there was no mind and how the Defendant was at the time in a way that he was at the same time memory. / she was not at the time at the time at the time at the time at the time when the Defendant was aware of a sexual intercourse with the Defendant’s sexual organ and was not at the latest at the time at the end.

(4) The Defendant, at an investigative agency, stated that “the Defendant drinking water on a new wall with a view to drinking water.” The Defendant brought water to the victim’s view because the victim changed water on a new wall. / she did not have water on a single occasion, and brought water to the victim, thereby bringing water to the victim. The Defendant made a sexual intercourse with the victim. / The Defendant was able to bring water to the victim. The Defendant also expressed that the Defendant was able to play a funeral on the victim’s back and back, and that the victim was able to do so. The Defendant stated that “The Defendant was able to play a funeral on the victim’s back and back, and that the victim was able to take a funeral before the victim’s statement was made from 86 p.m. to 40 p. 9 p.m. (Evidence evidence).” The Defendant stated that the Defendant was able to have a substitute text message from 94 p.m. to 30 p. 48 p.m., the Defendant’s statement and this case’s statement were also 94.

A table 16:42:00 (Defendant) written in the main text and 16:42:21 (victims) and 16:42:21 (victims) and 16:42:53 (victims) and 16:42:53 (victims) and 5:16:43:2 (victims) and 16:43:57 (Defendants) were sent to a water purifier because she did not have any water in her course, so she did so. 16:44:17 (Defendants) that she continued to her water, so she did not have any water in her course, and she did so at 16:45:54 (victims) and that she did not have any water in her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her.

(5) Reasons for the instant complaint

(A) From March 18, 2020, until March 3: 18, 2020:3:00 p.m. to March 40, 2020, the victim began to look at why he/she had done his/her behavior since the text sent to the Defendant from March 18, 2020 to March 3:0 p.m. (Evidence Record 99 pages).

(B) Examining the text messages of the victim who continues thereafter, the victim appears to have been in a de facto marital relationship and talked with Nonindicted 2 who was on the day of the instant case at the time of having talked with the Defendant, and thereafter, the Defendant began to comply with the instant case, and continuously expressed his intention to punish the Defendant, referring to the issue of accusation and agreement. The complaint on the instant case was made by Nonindicted 2, who is not the victim himself, at the Ulsan Detention Station, prepared on March 22, 2020 and received the complaint from the Ulsan Coast Guard on March 24, 202.

(C) As such, the victim did not mention the instant case not only at the time of the sexual intercourse with the Defendant, but also at least three days after that day, while exchanging very closely-friendly conversations, the victim started to follow the instant case by changing his attitude after the de facto marriage spouse’s currency, and to criticize the Defendant’s behavior. Nevertheless, the victim’s complaint on the damage was filed through the complaint prepared by the de facto spouse who was at the detention house, and the victim’s attitude and the developments leading up to the instant complaint seem to be considerably exceptional.

(6) In full view of the aforementioned circumstances in light of the aforementioned circumstances, the victim was at the time of entering the telecom, and the victim was at the time of sexual intercourse with the influence of alcohol that was excessively taken into the telecom, thereby undermining decentralization or decision-making capacity. Although it seems that the above conditions were continued to some extent at the time of the sex relationship, it is difficult to readily conclude that the victim’s status at the time of the instant case had reached the state of her failure to resist as stated in the crime of quasi-rape.

B) Circumstances in which it is difficult to conceal the Defendant’s intent

(1) In an investigative agency, the Defendant stated that the victim was unaware of the fact that the victim was under the influence of alcohol at the time of entering the telecom, while recognizing the fact that the victim was under the influence of alcohol, and the CCTV images as seen earlier also did not seem to have relatively natural and difficult to view that the victim’s walk and movement were relatively natural and difficult at the time of entering the telecom. Therefore, it is difficult to readily conclude that at the time of entering the telecom, the Defendant was aware that the victim was in the state of mental disorder caused by drinking alcohol or the state of failing to resist.

(2) In the first investigation conducted by the police, the Defendant stated that he had sexual intercourse with the victim’s consent while completely denying the facts charged. However, during the second investigation conducted by the police, the Defendant made a statement to the effect that he was aware of the facts charged of this case. However, it is difficult to avoid the possibility that the Defendant made a statement that: (a) the disabled with intellectual disability 3 seems to fall somewhat than ordinary people; (b) the Defendant made a statement without the counsel’s assistance at the time of the investigation; and (c) the first investigation first investigation first, the Defendant maintained the purpose of the statement at the time of the investigation; and (b) the Defendant made a statement to the effect that he was fully aware of the fact that there was “the express consent of the victim as to sexual intercourse” although there was no material evidence unfavorable to the Defendant, it is understood that the Defendant only understood that there was “the victim’s explicit consent as to sexual intercourse”; and (c) even if the victim thought that the victim explicitly consented to sexual intercourse in light of the relationship with the victim and the situation before and after the investigation.

(3) The victim made a statement at the investigative agency that “Around March 2018, knew the Defendant through the introduction of the branch,” and that “Around January 2020, 2019, 2019, 200, 201, 200, 200, 200, 200, 200, 13, 18, 19, 19, 200, 200, 200, 200, 200,000,000,000,000,000,000,000,00,000

(4) If, at the time of the instant case, the Defendant did not have an assistant principal for sexual intercourse in advance and was the Defendant’s unilateral sexual relationship, such as the victim’s assertion, it would be natural to express the victim’s refusal or displeasure at the time of recognizing the sexual relationship. Rather, there is a situation in which the victim actively respondeds to the sexual relationship, and even after the completion of the sexual relationship, the circumstances that naturally take place even after the sex relationship, are naturally and naturally.

(5) After the instant case, the Defendant and the victim were given a very closely-friendly conversation (Evidence Records 96-99 pages). On March 15, 2020, when the Defendant and the victim had been faced with the instant case, the victim sent a letter (No. 5177 pages, evidence records No. 96 pages) to be unfolded about the day when the Defendant was in singing, and from March 11, 2020, 11:24 of the following day, the victim sent a letter to see that the victim was unfolded about the day when the Defendant was in singing, and from March 16, 2020, the victim sent the text to 97-5350 pages, and from March 18, 202, the victim sent the text to 97-45 of the instant case, and the victim did not know about the fact that the victim was pregnant due to his sexual intercourse on the day before the instant case.

(6) 피해자는 사건 당일인 2020. 3. 15. 오후부터 같은 달 18일 오후 3시 46분경 피고인에게 갑자기 사건 당시 기억이 전혀 나지 않는다면서 피고인의 행동에 대해 따지기 시작하기 직전까지, 위에서 본 대화 내용 외에도 피해자의 친오빠에게 피고인을 소개하기 위해 만나기로 하는 일정에 대한 이야기, 지인의 결혼식에 대한 이야기, 피해자의 몸 상태를 걱정하거나 출퇴근 무렵의 일상에 대한 이야기를 주고받는 등 매우 가깝고 친밀한 내용의 문자를 주고받았다. 특히 피해자가 피고인을 피해자의 친오빠에게 직접 소개하기 위해 만나기로 하는 이야기를 하면서, ‘울 오빠가 맘에 안 든다 하면 포기해라’, ‘만나보는 거지 맘에 안 든다 하지 싶은데 ㅎㅎㅎ’, ‘첫인상이 중요하거든 ㅎㅎ, 근데 내가 널 첨 봤을 때 첫인상 안 좋았는데 ㅋ’라는 문자를 피고인에게, 피고인은 ‘맘에 든다 하면 어떻게 할 거야’, ‘내가 오빠한테 잘 보여야지’, ‘그래도 오빠 처음 보는데 내가 가서 기다리고 있어야 되는 거 아니가’라는 등의 문자를 피해자에게 보냈는데, 그 내용을 볼 때 피고인이 당시 피해자와의 관계가 ‘연인’이라고 주장하는 바와 부합하는 것으로 보인다.

(7) In light of the aforementioned circumstances, the Defendant appears to have been in a very close relationship with the victim or at least with a very close relationship corresponding thereto, and even before and after the two drinking fields, there is room for interpreting that the Defendant, at the time of the instant case, had a sexual intercourse with the victim, after making a drinking place, had a negotiation on the sexual relationship with the Defendant while accompanying the Defendant, or had an implied consent to the sexual intercourse itself.

4. Conclusion

Thus, the facts charged of this case constitute a case where there is no proof of crime, and thus, is pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by publicly announcing the summary of this judgment in accordance with the main sentence of Article 58

Judges Park Young-young (Presiding Judge) Kim Do-young