2018Gohap322 Rape Inflicting

A

Maok-young (prosecutions) and Kim Jong-chul (public trial)

Attorney B (Korean National Assembly)

July 13, 2018

A defendant shall be punished by imprisonment for four years.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

Criminal facts

【Criminal Power】

On August 18, 2016, the Defendant was sentenced to imprisonment with prison labor for one year and two months for fraud in the Gwangju District Court Magpoon branch on July 27, 2017 and completed the execution of the sentence.

【Criminal Facts】

At around 02:00 on March 15, 2018, the Defendant sought a sexual intercourse with the victim D, who was living together at the victim’s house located in Gwanak-gu in Seoul Special Metropolitan City, 58 years of age, and returned home, and tried to get off and have a sexual intercourse with the victim’s clothes. However, the Defendant sexual intercourse once by inserting the victim’s sexual organ into the part of the victim’s sexual organ with the victim’s face, on the ground that the Defendant was forced to have a sexual intercourse with the victim on the ground that the Defendant was forced by force upon the withdrawal of alcohol.

The defendant, on the ground that the victim does not have any reaction at the time of the victim's sex relationship, stated that "any gushee and has been feasible," the victim's face can be taken by drinking, and that the victim was pushed ahead with the victim's cell phone in order to find the mobile phone and concealed the victim's cell phone in order to make the victim's cell phone known to him/her, and the victim did assault the victim, such as booming the victim's her blance, opening, flicking the victim's blance, going back the victim's cell phone, and blicking him/her into the victim's cell phone, and then the victim was able to take her cell phone treatment, such as the victim's hair, she was feasible, she was feasible, and the victim was able to take her part in the victim's cell phone, and then the victim was able to take part in the victim's cell phone, and the victim's hair treatment.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of witness D;

1. Photographs of the body part of the victim;

1. A medical certificate;

1. Written response to the request for appraisal;

1. Before judgment: Judgment on the assertion of the criminal defendant and his/her defense counsel, such as criminal history records, etc. (A), investigation report (verification of repeated crimes);

1. Summary of the assertion

Although the defendant was at the time of the victim's her cream, he did not assault the victim, and the sex relationship was made according to the agreement that was reached at ordinary times.

2. Determination

A. In determining the credibility of the statements made by the victim, etc. supporting the facts charged, the court shall evaluate the credibility of the statements made by the victim, etc., as well as whether the contents of the statements themselves conform to the rationality, logical, logical, and inconsistent with the rule of experience, physical evidence, or third party’s statements, and whether the statements made by the witness in the open court after taking an oath before a judge, such as the appearance and attitude of the witness, and the penance of the statements, which are difficult to record, by directly observing various circumstances that make it difficult to record. In a case where the statements made by the witness, including the victim, correspond to the facts charged, are generally consistent and consistent with the facts charged, they shall not be rejected without permission, unless there is any separate evidence to deem that the statements made by the witness, including the victim, are objectively deemed consistent and consistent with the facts charged (see, e.g., Supreme Court Decision 2012Do2631, Jun

B. Examining the following circumstances acknowledged by the evidence adopted and examined by this court in light of the aforementioned legal doctrine, the Defendant is fully aware of the fact that he/she committed rape by assaulting the victim’s her buck and boat and suppressing the victim’s resistance as stated in the facts charged. The Defendant’s assertion is rejected.

1) In an investigative agency and this court, the victim has been raped by suppressing the victim’s resistance, such as the suppression of the victim’s grandchildren, etc., the victim’s scam at hand, and scams by taking the victim’s scams, etc., and consistently stated on the facts, etc., such as the victim’s scams by assaulting the victim’s scams with efficiencies, and inserting the victim’s fingers into the part of the victim’s scams. The victim’s above statements include very concrete and detailed matters that cannot be known if the victim did not directly experience, and there is no content that could be deemed reasonable or contrary to the empirical rule. In addition, in light of the form and attitude of the victim’s statements in this court, the above contents of statements do not appear to have been false

2) After the instant case, the victim did not first contact or demand the agreement amount to the Defendant, and rather, the Defendant sent text messages to the effect that the Defendant first demanded the withdrawal of the complaint to the victim and completed the instant crime several times. In light of this, it is difficult to see that the victim made a false statement in order to gather the Defendant, and there is no motive or reason that the victim would specially mislead the Defendant.

3) After committing the instant crime, the victim requested a report from the person who was locked at the home of the Defendant, and was transferred to Bora Hospital by the first responders dispatched, and received hospitalized treatment for approximately three days. Even according to the photographs taken at the hospital at the time, there were red joints about the victim’s boom and arms, etc., and the diagnosis form also states that the victim’s opinion was shown in the diagnosis form that the victim’s booming scam and scambling scam, and the victim’s injury, degree, etc. are supported by the credibility of the statement made by the victim.

4) As to the circumstances of the instant case, the Defendant stated that “the victim saw to the effect that he would be able to resolve money with the victim her under the influence of alcohol.” In addition, the Defendant made a sexual intercourse with the Defendant under the agreement that he would be able to be able to able to see the victim’s desire by putting off his clothes and drinking alcohol due to defects in the relationship with her own clothes, and then 's chostyp'. The Defendant made her statement with the victim without consistency when she made her oral statement at the time when she made her oral statement to the effect that she would be able to her sexual organ so that she would be her fingerd with her breast and her arms.” However, in the investigation, the Defendant made it difficult for the victim her statement to be her breath without consistency with the victim when she made her oral statement to the effect that she would have been her her sexual organ and her breathel at the time when she made her statement.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 301 and 297 of the Criminal Act

1. Aggravation for repeated crimes;

Articles 35 and proviso of Article 42 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;

1. The grounds for sentencing on the grounds of sentencing, in full view of the following: (a) the proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; and (b) the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (i) (i) it is difficult to readily conclude that there was a habition of sexual assault since the Defendant was not punished for sexual assault in the past; (b) the registration of personal information of the Defendant and the order to complete a program alone appears to have a certain degree of effect to prevent recidivism; and (c) other circumstances such as adverse effects and anticipated side effects that the Defendant may suffer from disadvantage due to an order to disclose or notify the personal information of the Defendant; and (d) the age, occupation, family environment, social relationship, motive, means, and consequence

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Where the result of an injury to a sex offense occurs, the age of 13 or older and the injury resulting from an injury shall be reduced to 2 or more (general rape).

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 4-7 years of imprisonment

3. Determination of sentence;

Notwithstanding the victim’s clearly refused expression of intention, the Defendant forced sexual intercourse with the victim and inflicted bodily injury on the victim. In particular, the Defendant committed the instant crime without being aware of a number of criminal offenses punished for fraud, etc., even though they were during the period of repeated crime at the time of the instant crime. The victim was suffering from considerable mental and physical pain due to the Defendant’s criminal act, and was seeking the Defendant’s punishment. This is disadvantageous to the Defendant.

However, the Defendant recognized some part of the crime of this case and reflected in the part of the crime of this case. The Defendant has no record of being punished for the same kind of crime, and the degree of injury to the victim is not serious. This is the circumstances favorable to the Defendant.

In addition, the punishment as ordered shall be determined by comprehensively taking into account the various circumstances that serve as the conditions for sentencing, such as the age, character and conduct, environment, motive, means and method of committing the crime, and the scope of recommended punishment according to the sentencing guidelines.

Registration 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 agency pursuant to Article 43

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place: