2013Gohap331 Rape

A

National commercial matters, and trial on the staticity.

Law Firm B

Attorney C

February 7, 2014

The defendant shall be innocent.

1. Summary of the facts charged

On July 4, 2013, the Defendant, at around 22:00 on July 4, 2013, tried to drink the alcohol to the victim by drinking the alcohol to the victim after drinking the alcohol with the victim F (the 37 years of age) who was in the Jung-gu Daejeon, Daejeon, with the 'balking'.

The Defendant: (a) told the victim that he would drink the alcohol to drink at a more time; (b) she was aware of the victim; (c) she went from the age club and she was parked in the Seo-gu G Building that was parked by the Defendant; and (d) she went to the Seo-gu G Building that was parked in Daejeon, Seo-gu, Daejeon; and (c) she went to the victim in the vicinity of the package of the Seo-gu, Daejeon. Then, the Defendant entered the above area to the victim for a more number of hours than a hour; (d) around 00:24, July 5, 2013, 2013, she went to the victim while getting on the taxi and getting off the taxi before the Kelter located in the Seo-gu, Daejeon, Daejeon.

The defendant got the victim and paid accommodation expenses by credit card in the name of the defendant, and entered the elevator with the above mother 305.

At around 00:37 on the same day, the Defendant heard horses from the victim under the influence of alcohol, and “if there is any kind of conduct.” The Defendant attempted to have sexual intercourse with the victim, such as leading the victim to time by speech, drinking the body of the victim, etc. However, the Defendant was refused by the victim. The Defendant: (a) was drinking the victim’s head at a time; (b) went beyond the victim’s body and the body part of the body and the bridge; (c) went beyond the victim’s body and the body part of the victim several times; (d) was unable to resist the victim by drinking, drinking, drinking, drinking, and drinking, and drinking, and then, (e) was off the victim’s inner part; (d) was off the victim’s inner part; and (e) was raped once by sexual intercourse with the victim, and accordingly, (e) took part in the victim’s eye, eyeing, snow, shoulder, string, and string the part of the victim’s body.

2. The defense of the defendant and the issues of the case;

(a) Prosecution of the defendant;

The Defendant did not consistently rape the victim, as described in the facts charged, at an investigative agency up to this court, and did not appear to have the victim, who seeks to leave the victim within the radius.

The instant facts charged are denied by asserting that it was only the fact that the victim was born in the process of spreading it in the process of preventing it.

B. The evidence-related contents include the victim's police officer, prosecutor's office and court statement, image of data on the victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's victim's medical examination report, copy of medical examination report, statement of examination request's examination request report, statement of examination request- appraisal report, investigation report (the analysis and attachment report of the victim's cell phone telephone telephone conversations with the victim's victim's victim's victim's victim's cell phone image

C. Organization of issues

Among the evidences consistent with or consistent with the above facts charged in this case, each of the remaining evidences, except the victim's statement, include the victim's body condition, site situation, and victim's cell phone phone call details after the occurrence of this case. It is difficult to view that the defendant was raped by the victim as direct evidence, and the victim's statement is not sufficient. Accordingly, the issue of deciding on the facts charged in this case is whether the victim's credibility is credibility or not, and then, this article examines the credibility of the victim's statement.

3. Determination on the credibility of the victim's statement

(a) Details of the statement of the victim;

1) Statement at the time of reporting by the police (Evidence 6 pages, 221-29, see Evidence Record)

On July 5, 2013, at around 01:48:24, the victim reported to the police, “at all times, fested............. at the time of leaving the vehicle, we see at any time....... I are now in K in the telecom. I were born. There was a talking that the victim was abnormal. The victim was 25 years as a person drinking and drinking. The victim was 25 years. The victim was flick, was flick, and the head was short.”

2) Police statements (Evidence Records 29-43, see, e.g., Evidence records 235-257)

피해자는 사건 발생 직후 2013. 7. 5. 04:25경부터 05:53경까지 대전 원스톱지원센터에서 조사받으면서 "2013. 7. 4. 22:00~23:30경 대전에 있는 E나이트클럽에서 부킹으로 피고인을 처음 알게 되었다. 성폭행은 2013. 7. 5. 대전 서구 J에 있는 K 모텔 305호 방안에서 발생하였다. 방안에서 피고인이 방바닥에서 이불 씌워놓고 때렸다. 발로 막차고, 머리를 밟았으며, 소리를 지를까 봐 입에 갖다 물리고 때렸다. 당시 피고인이 이상한 거를 성기에 집어넣으려고 했고 자기 손가락도 집어넣으려고 했다. 성기 삽입도 있었다. 피고인이 자기 친구도 있고, 제 친구도 있다고 해서 모텔에 갔는데, 아무도 없기에 집에 간다고 했더니 머리를 잡아당기면서 술을 마시자고 해서 알았다고 하고 제가 앉았다. 그랬더니 저를 만지면서 이상한 짓을 하기에 못 만지게 했다. 그러니까 피고인이 한 번 하자고 하였고, 제가 싫다고 한 다음부터 주먹으로 머리, 얼굴, 팔을 때리고 발로도 찼다. 나이트클럽에서 놀 때 저는 여자 일행 1명과 함께 있었고, 피고인은 남자 일행 2명과 함께 있었다. 나이트클럽에서 이렇게 5명이서 술 마시고 놀다가 제가 화장실에 다녀왔더니 다른 일행들은 모두 없어져 있었다. 그런데 피고인이 저에게 다른 사람들과 모텔에서 모이기로 했다고 하여 저는 피고인과 함께 택시를 타고 모텔에 들어간 것이다. 모텔비는 피고인이 카드로 계산했는데, 얼마를 지불했는지는 제가 모른다."고 진술하였다가, 잠깐 휴식을 취한 뒤 경찰관이 다시 모텔방 안에 들어가서 어떻게 된 것인지 물으니 "모텔방 안에 들어갔더니 아무도 없어서 저는 화장실에 다녀왔고, 피고인이 처음에 이상한 짓을 하려고 하기에 제가 술을 먹자고 하고, 저만 술을 마셨다. 그리고서 제가 전화를 하려고 하니까 피고인이 못하게 하면서 저와 싸우기 시작하였다."고 진술하였다.

Therefore, as police officers called to the effect that they drink and drink in the aged club, they did not drink at the time," they stated that "I did not want to drink and drink the person." At that time, they stated that "I would like to drink and drink the company's fee and 2 soldiers in the club before the club was coming, I would have been fine for the state of the victim at the time of the second soldier's disease. While drinking alcohol, I had drinking alcohol, but was in a state of mental and physical body and free learning." Regarding the circumstances after the sex relationship, I stated that "I would have lost the mind at the time of drinking, because I would have the head at the time of drinking, and the defendant escaped, and the last day after the escape of the defendant. Even if the defendant sexual assault was done by the police, the defendant was reported to the police, and the defendant was able to gather at the time when the police was reported after the escape."

(iii) the first public prosecutor’s statement (Evidence No. 169-171, referring to the transcript sent)

피해자는 검찰에서 2013. 7. 31. 조사받으면서, "2013. 7. 4. L을 만나러 E나이트클럽에 갔더니 L과 그 언니의 일행이 있었고, 저까지 해서 여자 4명이 있었다. 제가 갔을 때 이미 피고인 일행과 L의 일행들이 같이 있었다. 상대방 일행이 몇 명이었는지는 계속 왔다 갔다 해서 잘 기억나지 않는다. 남자들은 룸에 있었고, L은 룸에 있다가 저를 따라 나왔으며, 그때 피고인도 같이 따라 나왔던 것 같다. 그렇게 피고인, L과 있다가 제가 화장실에 다녀와 보니 L이 없었고, 피고인이 혼자 있기에 일행들이 어디로 갔느냐고 하니, 피고인이 어디 모텔에 갔다고 해서 제가 L에게 전화를 했는데, L이 전화를 안 받았다. 그 후 나이트클럽에서 모텔로 택시를 타고 바로 갔고, 그 사이 다른 곳에 들러 술을 한 잔 더 하거나 한 적은 없다. 피고인이 성폭행 후 나가면서 밖으로 나오면 죽인다고 했고, 피고인이 열쇠도 빼 가서 방이 깜깜했다. 저는 피고인이 나가자마자 문을 잠그고 어머니에게 전화를 하여 위치를 확인한 후 M에 신고를 했다. 모텔비용은 피고인이 카드로 결제한 것을 알고 있다."고 진술하였다.

4) The second public prosecutor's statement (see, e.g., evidence records 287-290, evidence records 326-336) the victim was investigated by the public prosecutor on August 14, 2013, and he drank two soldiers per week at the age club on the day of the incident. The day is only one disease, and his memory is well-being one day, and his memory is well-being. The cab was on a few occasions, and the one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one-day one was born by the defendant.

5) Legal statement

피해자는 법정에 증인으로 출석하여 "2013. 7. 4. 22:00경 아는 언니인 L을 만나러 대전 중구 D에 있는 E나이트클럽에 갔는데, L이 자기들이 부킹을 했는데 그 룸에 잠깐 들르지 않겠냐고 해서 같이 따라 들어가려 했더니 룸 안에 사람들이 너무 많아 들어가지 않았다. 그랬더니 L이 그러면 홀 밖 테이블에 있자고 해서 홀에 있는 테이블에 앉아 있었다. 그러다가 화장실에 다녀왔더니 L이 피고인과 함께 앉아 있었고, 당시 피고인의 일행을 보지는 못했다. 다만, 다시 화장실에 갔다 왔더니 L이 없고, 피고인만 테이블에 앉아 있어서 제가 피고인에게 L의 행방에 대해 물었더니 피고인이 '다른 일행들은 술을 더 마시러 모텔로 갔으니 우리도 그쪽으로 가자.'고 했다. 그리하여 피고인과 함께 택시를 타고 K 모텔로 이동하였다. 나이트클럽에서 피고인이나 피고인 일행들과 함께 술을 마신 사실은 없으나, 나이트클럽에 가기 전에 이미 회사 사람들과 소주 2병 정도를 마시고 나이트클럽에서 맥주를 조금 더 마셔 나이트클럽에서 나올 때쯤에는 술이 많이 취한 상태이긴 하였다. 피고인과 위 모텔로 가던 중 대전 서구 H에 있는 이라는 포장마차에 들러 피고인과 함께 술을 더 마셨는지는 당시 술에 많이 취해 있어서인지 기억이 안 난다. 당시 모텔비를 누가 계산하였는지도 기억이 잘 안 나는데, 제가 계산을 하지 않았기 때문에 피고인이 계산하지 않았을까 생각한다. 모텔인지 어디인지는 모르겠는데, 피고인과 엘리베이터를 타고 간 것은 어렴풋이 기억이 난다. 이후 피고인과 함께 위 모텔 305호 방에 들어가려고 방문을 열었는데 다른 일행의 신발이 없어서 이상하게 생각하고 에게 전화를 하려고 하니까 피고인이 전화를 못 하게 막았다. 그리고 술에 취해 기억이 잘 안 나는데, 피고인이 저의 몸을 만지면서 이상한 짓을 하려고 해서 제가 이를 거부하면서 밖으로 나가려고 하니 피고인이 양손으로 저의 몸을 붙잡고 주먹으로 머리, 얼굴, 팔을 수회 때리고, 발로 다리도 수회 차는 듯 폭행을 했다. 피고인이 제 속바지를 찢고 팬티를 벗기고는 자신의 바지와 팬티를 내리고 피고인의 성기를 제 성기에 1회 삽입하여 강간하였고, 제 성기에 손가락을 집어넣기도 하였다. 당시 피고인으로부터 위와 같이 폭행을 당하여 약 2주간의 치료를 요하는 눈꺼풀 및 눈, 어깨, 팔 부위의 타박상 등의 상해를 입었다. 피고인이 저를 위와 같이 강간하고 나가면서 '따라 나오면 죽인다.'고 해서 겁이 나 일단 문을 잠그고 기다리다가 어머니에게 전화를 했다. 당시 저의 위치를 몰라 어머니에게 제 휴대폰 위치추적을 통해 위치 확인을 해달라고 한 다음 엄마와 같이 M에 신고하였다. E나이트클럽에서 저는 부킹을 한 적이 없다."고 진술하였다.나, 신빙성 판단

In light of the following circumstances acknowledged by the record, it is difficult for the victim to use the victim's above statement as evidence of guilt because its credibility is lower.

1) Lack of consistency in the victim’s statements

The victim made a statement concerning the instant case several times as above, and the following changes were made from time to time with regard to the circumstances surrounding the Defendant’s interview, the background leading up to the movement into the telecom, the situation within the telecom, and the circumstances following the occurrence of the instant case.

A) The circumstances leading up to the Defendant’s conviction

After the case, the victim made a statement at the police station immediately after the case, "I am only for the defendant's first time. At the age club, I am only for the defendant. At the time of playing at the age club, I am for the defendant, and 2 men's day. I am for this five persons." However, the first prosecutor's investigation "I am for the women's day at the club," and 4 people's day-day day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day-time day day-time day-time day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day...

B) The reason why he has moved to the telecom

Although the victim stated to the effect that "at the time of movement," while making a report to the police, "at the time of movement," the police was examined, "at the time of movement and play at the toilet, all of which have disappearedd, and only one of the people and the defendant was accused. However, the defendant believed that he was frightd to gather with others, and she went to the telecom with the defendant." At the first prosecutor's investigation, the victim stated to the effect that "at the time of movement, she left the cab in the telecom." However, the victim stated to the effect that "at the time of the first prosecutor's investigation, she was no longer or smaller than fright to drink." However, the victim stated to the effect that "at the time of the second prosecutor's investigation, she was frightd with the defendant's card, and that he was frightd with the defendant, so far as she did not see how she was frightd with the defendant's age at the time of movement."

The victim stated that the victim made a false statement about the circumstances leading up to the reversal of the above statement by the police immediately after the case. However, in light of the fact that the victim made a report to the police and made a statement that "the victim was under the influence of alcohol prior to the occurrence of the case, but has a mental and physical condition, was fine," there is doubt as to whether the victim was under the influence of alcohol at the time of being investigated." In the first prosecutorial investigation, the victim tried to make a statement differently from the fact that the victim tried to conceal the truth about the circumstances in which the victim moved to the telecom, and that it was clearly stated that the victim did not have been under the influence of alcohol after the second prosecutorial investigation, it is doubtful that the course of movement was different from the victim's statement, and that the victim did not make a statement that he was under the influence of alcohol after the second prosecutorial investigation.

C) Situation in the telecom.

The victim immediately after the case was examined by the police, and changed the victim's statement that the police drankly thought that she was dnicking, and that she was dnicking. In addition, the victim made a statement to the police that she was dnicking so that she was dnicking, and that she was flicking because she was flicking because she did not flicking, she was flicking, and she was aware that she was flicking, and that she was flicking." The victim made a statement to the police that she was dnicking in the motel, but the prosecutor's office and court made a statement to the effect that " she was dnicking, but the defendant was flicking within the youth so that she could not get off the phone."

그리고 피해자는 경찰에서 처음 피해내용을 진술할 때에는 "방안에서 피고인이 방바닥에서 이불 씌워놓고 때렸다. 발로 막 차고, 머리를 밟았으며, 소리를 지를까 봐 입에 갖다 물리고 때렸다."고 진술하였는데 반해, 검찰 및 법정에서는 피고인이 주먹으로 때리고 발로 찼다는 진술만 하면서 피고인이 이불을 씌워놓고 때렸다거나 소리를 지를까 봐 입에 무언가를 갖다 물렸다는 취지의 진술은 하지 않고 있는바, 처음 경찰에서 진술할 때에 피고인을 엄하게 처벌받게 하기 위하여 피해내용을 상당히 과장하여 진술한 것이 아닌가 하는 의심이 들고, 이러한 피해자의 경찰 조사 당시 진술태도에 비추어 피해자의 검찰 및 법정 진술도 사실과 달리 과장되었을 가능성을 배제하기 어렵다.

D) Circumstances after the occurrence of the instant case

피해자는 경찰에서는 "사건 당시 머리를 맞아 정신을 잃은 사이 피고인이 도망하였다.”고 진술하였으나, 검찰 및 법정에서는 "간음 이후 피고인이 '밖에 나오면 죽인다.'고 하면서 나가 바로 문을 잠궜다."고 진술하여 사건 발생 이후의 정황에 대하여도 그 진술을 변경하였다.

2) Instigating the statements of the victim

피해자는 나이트클럽에서 피고인과 함께 있으면서 어떠한 말을 하면서 무엇을 하고 놀았는지 전혀 진술하지 못하고 있고, 모텔방 안에서의 행동도 피고인이 피해자를 어떻게 폭행하였는지에 관하여만 "주먹으로 머리, 얼굴, 팔을 때리고 발로도 찼다."고 단순하게 진술하고 있을 뿐 피고인과 함께 1시간 가량을 모텔방 안에서 있었음에도 당시 피고인이 했던 말이나 행동에 관하여 상세하고 구체적인 진술을 하지 못하고 있다.

(iii) Other circumstances inconsistent with the statements of the victim.

A) The circumstances leading up to the Defendant’s conviction

(1) N’s statementEAE and court stated in the investigation agency and court that “The Defendant was seated in two preceding cases and the lower-class club, and the victim was seated in a lower table than that of the congested and alone. On the same day, N, the Defendant, who was the Defendant, was seated in the lower table. On the same day, the Defendant was salving the victim and directed the Defendant to the table table where the Defendant was the victim.”

(2) P, the Defendant, along with the Defendant on the day immediately before the P’s statement, stated in the investigative agency and the court that “I laid down and play the age club in front of the instant table,” and that “I moved to the table where I was the victim, and that I did not see the face of the victim because I did not go to the victim and the low-income table.” The Defendant stated to the effect that “I do not have any scam separately from the victim’s scam.”

(3) Review

The victim stated that L was engaged in a daily activity at the time when the victim was in the age club in the preceding day of the case, and that the defendant was able to believe and move to the telecom with L and the defendant's daily behaviors. However, according to N,O, and P's statements, the victim seems to have been able to have passed since he was able to do so on the mixed age club in the preceding day of the case. However, it is doubtful whether the victim was able to do so on the part of the victim, such as the victim's statement, and whether the victim went to the telecom, and therefore, the victim was able to go to the telecom, so it is doubtful that the victim was able to go to the telecom.

B) The reason why he has moved to the telecom

(1) Details of the Defendant’s card approval (see, e.g., evidence records 181)

On July 4, 2013: (a) around 23:24:52, the Defendant paid 8,500 won for taxi, (b) around 00:24:48 on July 5, 2013; (c) KRW 21,000 for taxi in Seo-gu Daejeon, Seo-gu, Daejeon; and (d) KRW 40,00 for mother telecom at the Kel located in Seo-gu, Daejeon, Daejeon on July 5, 2013.

(2) On the CCTV screen of the telecom (Evidence No. 814, evidence record No. 291-293, the evidence record No. 81-293), it is confirmed that on the day of the instant case, the victim gets off the taxi and entered the expected telecom, the victim gets out of the taxi when the Defendant makes payment from the telecom with the card, and the victim gets out of the card two times, the victim gets off the mixed elevator, and the victim gets out of the elevator when the victim moves from the elevator.

(3) Q’s statement (Evidence Record 219-220 pages) Qel employees made a statement at an investigative agency that “one party would first be asked whether the other party would be able to get the other party to get the elevator while getting the elevator, and then there was no contact later.”

(4) Review

The victim stated to the effect that the victim believed that the victim she was the victim of the defendant's only her speech that he/she moved to the telecom, and that how he/she moved from his/her age club to the telecom is not memory. However, in light of the victim's attitude confirmed in CCTV video and pedestrian condition, it is doubtful whether the victim was under the influence of alcohol so that he/she could not memory his/her work at that time before she entered the telecom. Furthermore, according to the Defendant's card approval details, it is doubtful that the defendant and the victim did not move from his/her age club to the telecom, not immediately move from the telecom to the telecom, but it is confirmed that the victim moved from the telecom to the telecom that he/she was under the influence of drinking. According to CCTV video image, it appears that the victim did not call to what room the victim she arrived to the telecom, and it seems that the victim was under the influence of alcohol in light of whether the victim was under the influence of the victim's her hair.

C) Whether a man or not a man or a man or a man or a man is inserted

(1) Whether the defendant's DNA detection was found

After the occurrence of the case, the police collected the victim's broom conspiracy 2 points, quality contents, etc. from the victim's report, and requested the appraisal as to whether the defendant's DNA type was detected from the appraisal material. However, only the victim's saws were detected from the victim's saws, and the victim's panty, panty, broom 2 points, broom broom 2, broom content, and vegetable, there was no male's DNA type from anywhere, such as the victim's vegetable, panty, vegetable 27 pages

(2) Whether Defendant 1 had the ability to create the sexual organ

According to the written appraisal of physical disability submitted by the Defendant, from October 22, 2013 to December 25, 2013, the Defendant was diagnosed as having the mal miles, especially the mal miles, due to the long-term crymosis by being hospitalized at the R hospital for three days from the time to the time of the same month, and was diagnosed as having the mal miles, and received an abnormal nautical miles test even in the mal miles test which was measured by being treated as an injection of the mal miles.

(3) Review

In addition, there is a question as to whether the Defendant could have sexual intercourse by putting the victim on the floor, such as the victim's statement, on the ground that the Defendant's sexual organ was inserted in the victim's sexual organ and inserting the victim's sexual organ into the victim's sexual organ. In addition, if the Defendant's sexual organ inserted the victim's sexual organ like the victim's statement, it was discovered that the Defendant's DNA punishment was found in the conspiracy or the content of the victim, and the Defendant's DNA punishment was not found as a result of the appraisal that the Defendant's DNA type was not found.

C. Sub-decision

1) In a criminal trial, the burden of proving the facts constituting an offense prosecuted is to be borne by the public prosecutor, and the conviction is to be based on the evidence of probative value, which makes the judge sure that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2002Do5662, Dec. 24, 2002).

2) Unlike the Defendant’s assertion, according to the victim’s cell phone telephone call, the victim appears to have never expressed his father within the telecom, and the victim was suffering from assaulting the face when the Defendant reported to the police after going through the telecom. In light of the fact that, as indicated in the instant facts charged, the Defendant is suspected of having raped the victim and having inflicted injury on the victim.

However, in this case where the victim's statement is the only direct evidence, the victim's statement is reversed without a clear reason as to the circumstances that the victim met with the defendant, the background leading up to the movement into the telecom, the situation within the telecom, and the circumstances after the occurrence of the case. The contents and degree of the reversal cannot be accepted, and it is difficult to recognize its credibility because the victim's statement is not specific, and there are circumstances that do not fit with other objective evidence, it is difficult to regard the victim's statement as evidence of guilt.

3) Therefore, considering the above circumstances, the evidence presented by the prosecutor alone cannot be deemed as having been proven without reasonable doubt, and there is no other evidence to acknowledge the facts charged.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, it is so decided as per Disposition by deciding not guilty under the latter part of Article 325 of the Criminal Procedure

Judges of the presiding judge and assistant judges

Judges Hongnn

Judges Cho Jeon-soo