2018Mahap286 Rape, Indecent Act by compulsion, Confinement

A

Hand-time (prosecution) and Kim Jong-hwan (public trial)

Attorneys Kim Jong-hwa (Korean)

July 27, 2018

A defendant shall be punished by imprisonment for one year.

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

Criminal facts

The defendant is a person who has been on board by using the name of "B", and the victim C (the victim, 54 years old) is known through the introduction of a person who has been on board several occasions.

1. Indecent acts by compulsion;

On May 29, 2017, at around 21:00, the Defendant calculated the telecom at the Ecom with the first floor in Jongno-gu Seoul, Jongno-gu, Seoul, and attempted to get the victim’s hand and to go up to the second floor of the guest room. However, the victim was able to have the victim’s face with the defect that the Defendant’s hand was bread with his body and attempted to go out of the above telecom, and bread with the victim’s face with the victim’s face, and bread with the victim’s entrance alcohol and breast. Accordingly, the Defendant committed indecent act by assault.

2. Attempted rape and confinement;

around 12:00 on July 15, 2017, at a restaurant where the trade name in Jongno-gu Seoul Metropolitan Government is unknown, the Defendant provided meals with the victim, and drinked alcoholic beverages, at around 14:00 on the same day, the Defendant took the 14:00 on the same day, and called the above restaurant and beer, and called the victim's breath and beer, and entered the celf in Jongno-gu Seoul Metropolitan Government Gel with the victim's shoulder, she was hick up, or she brought the victim to the Gelf by leaving the victim's, etc.

At around 14:40 on the same day, the defendant entered a guest room and 505 of the above Mobel, she was suffering from the victim's breath and clothes at the same time, and she was frightened from the victim's breath and she was frighten from the victim's breath and she was shed from the victim's breath in the "nick", and she was shed from the victim's breath and shed the victim's breath in the guest room, and she was asked to her clothes from the victim's breath to the victim's breath, but she did not she had the victim's breath and shed from the above date to 17:10 on the same day, but she did not she had the victim's breath and she did not she had the victim's breath to the victim's breath.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness C;

1. The police statement of H;

1. Recording records;

1. The 112 Report Processing Table 1.7. 15. The tear photographs;

1. Application of the Acts and subordinate statutes governing CDs or CCTV images CDs;

1. Article applicable to criminal facts;

Article 298 of the Criminal Act, Articles 300 and 297 of the Criminal Act (the attempted rape) and Article 276(1) of the Criminal Act (the point of detention)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the crimes of attempted rape and confinement, and the punishment imposed on the crimes of attempted rape, of which punishment is heavier)

1. Selection of punishment;

Imprisonment with labor for the crime of indecent act by compulsion

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act (the crime of attempted rape)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (aggravated Punishment for Rape with Punishment heavier than that prescribed)

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;

Article 47(1) and Article 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 defendant has no history of criminal punishment prior to the instant case, and in light of the relationship between the defendant and the victim, it is difficult to readily conclude that the defendant has a risk of recommitting a sexual crime against an unspecified female. In addition, the defendant’s sentence of imprisonment to the defendant, personal information registration, and orders to complete a sexual assault treatment program may also have the effect of preventing re-offending. In addition, taking into account the defendant’s age, environment, social relationship, motive and consequence of the crime, method and consequence of the crime, disclosure and prohibition order, the degree of disadvantage and anticipated side effects of the defendant's personal information to be affected by the order, the disclosure or notification of the defendant’s personal information shall not be ordered).

1. Exemption from an employment restriction order;

The proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Defendant has no record of criminal punishment for sexual crimes before the instant case, and it is difficult to readily conclude that the Defendant has a risk of recommitting a sexual crime against an unspecified female in light of the relationship between the Defendant and the victim. Moreover, the Defendant’s sentence of imprisonment with labor, registration of personal information, and orders to complete sexual assault treatment programs alone appears to have the effect of preventing re-offending. In full view of the Defendant’s age, environment, social relationship, motive of the crime, method and consequence of the crime, etc., comprehensively considering the Defendant’s age, environment, social relationship, motive of the crime, method and consequence of the crime

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

A. In relation to the point of indecent act by compulsion, the Defendant did not commit an indecent act by force against the victim.

B. In relation to attempted rape and confinement, the Defendant, with the victim’s implied consent, has not attempted rape by committing assault and intimidation to the extent that the Defendant makes it impossible or considerably difficult to resist the victim’s resistance so that the victim could not express his/her intention of refusal immediately before having sexual intercourse with the victim. In addition, the Defendant’s concealment of the clothes of the victim is consistent with the victim’s concealment, but the clothes were located in a location where the victim could sufficiently find out, and there is no fact that the Defendant forced the victim to prevent the victim from leaving.

2. Determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court, the credibility of the victim’s statement made in an investigative agency and this court is recognized, and the Defendant’s indecent act by force on or around May 29, 2017, and committed rape at the same time on or around July 15, 2017.

The above argument by the defendant and the defense counsel is not accepted.

1) From the investigative agency to this court, the victim: (i) the victim got the victim into the telecom with the defendant or twice; (ii) the process leading up to the victim's call into the telecom; (iii) the method of responding to the defective defendant's speech and behavior that the victim would not enter the telecom with the second floor when the victim first came to the telecom; and (iv) the method of responding to the victim's specific speech and behavior that the defendant made to bring the victim into the telecom on July 15, 2017; and (v) the method of responding the victim's response to each crime of this case, including the victim's emotional testimony and the situation after each damage occurred; and (vi) the victim's testimony and statement are relatively specific and consistent with the main part of each crime of this case, including the victim's emotional statement, and the part that is unreasonable or inconsistent with the victim's statement. It is not clear that the victim's statement is not readily acceptable or inconsistent solely on the grounds that it is not consistent with the victim's statement.

2) The victim recorded a conversation with the Defendant at the time of or immediately after the crime of this case, and the content of the conversation is consistent with the statement of the victim. In particular, at the time of the crime of rape of this case and the crime of rape of this case, the Defendant concealed four clothes in other rooms in order to prevent the victim from escape, if the victim was her clothes in the telecom, so as to prevent escape. If the victim does not have a sexual intercourse with the width, the Defendant was forced to do so. (The Defendant also recognized that he was out of the victim’s bar, and even after the victim’s 112 report, the victim’s 112 report passed from the Mocom bank to the Seoul Maro police station, and the victim’s 112 report passed away from the Mocom bank to the victim, and the victim’s desire to die with the victim, or threatened him, such as threatening the victim by getting away from the 5th floor, etc.).

3) According to the video of the CCTV at the time of the crime of attempted rape and confinement of the instant case, even though the victim had committed an act to avoid entering the telecom continuously, the Defendant could be seen as entering the telecom by force, leading or pushing the victim into the telecom, and even if the victim did not resist any more by sufficient force, it is difficult to view that the victim implicitly consented to entering the telecom, as alleged by the Defendant. Furthermore, according to the video of the photograph taken by the victim at the time, it is difficult to view that the part left the telecom, which was lower than the part of the victim, was removed. Accordingly, the Defendant seems to have attempted to get off the victim’s bar and clothes by exerting considerable force.

4) The crime of confinement is a crime that makes it impossible or extremely difficult for a person to leave a specific area with the freedom of action as the protected legal interest of the law. The disability that makes it impossible or extremely difficult for the person to leave the specific area is not only physical and tangible disability, but also psychological and intangible disability, and the essence of confinement is not limited to the means and methods that restrict the freedom of action by restricting the freedom of action. Thus, the means and methods are neither tangible nor intangible nor intangible (see, e.g., Supreme Court Decision 2010Do5962, Sept. 29, 201). In light of the above legal principles, the defendant exceeded the victim's bar and panty tytyty within the telecom, at the time of the crime of attempted rape and confinement of the case, and the victim went into a toilet, and it is difficult for the victim to leave the area without panty panty, and the defendant's act of confinement is sufficiently concealed by using panty and panty panty of the victim.

5) At the time of the crime of attempted rape and confinement in this case, the Defendant: (a) exceeded the victim’s panty and forced panty; (b) concealed the victim so that the victim may not go out of the telecom; (c) her sexual intercourse with him/her would not go out of the telecom; and (d) threatened the victim with the victim by either attempting to kill himself/herself or threatening him/her on the five floor; and (d) her scambling the victim by taking out the victim from the victim and being under the influence of her entrance into the victim; (b) appears to have exercised the force of force against the victim’s will; and accordingly, (c) the Defendant was deemed to have exercised the victim’s physical force to the extent that she could have remarkably difficult to resist the victim’s resistance against the victim’s will; and (d) it does not change solely on the ground that the victim could have escaped from the scene of the crime or the victim did not resist because the victim did not resist his/her dead force.

6) At the time of the crime of attempted rape and confinement of the defendant, the defense counsel of the defendant stated that when the defendant takes the victim in the telecom, the victim did not request the telecom staff or refuse to complete the victim's clothes; when the defendant forced the victim's clothes after entering the telecom, he recorded the victim's conversation with the defendant rather than reporting it to the police with the cellular phone with the victim's clothes to the mobile phone, and approximately two hours after reporting it to the police, "I want to do so, I want to do so," and that the dispatched police officer was only one who was only called "I would like to do so," and it was difficult for the dispatched police officer to say that he was forced to do so several times, and that the words of rape was not mentioned. In light of the above, the victim's behavior cannot be deemed to be an act that could generally be viewed as an act by the rape victim, and therefore, it cannot be recognized that the defendant committed violence or intimidation to the extent of suppressing the victim's resistance.

However, it is difficult to view that the victim at risk of rape always resists the victim or wants to request rescue from another person or police, and various forms of response may arise depending on the relation between the perpetrator and the victim, the victim’s character, and specific circumstances at the time. In this case, it is difficult to reasonably act against the victim at all times through hummatic judgments. In this case, ① the victim and the defendant have come to know of the situation before two months before they come to contact with the victim, and they have expressed a sense of view, such as continuing to drink the victim. ② The defendant appears to have been able to view that he did not have been able to view the victim as having been able to have been able to view that he had been able to view that he had been able to escape from the police room at the time of his attempt to leave the police room at the time of 2017, 21:00, 21:00, and the victim tried to have been able to view that he had been able to know about the victim’s attempt to leave the victim’s room.

7) On May 29, 2017, the victim did not report to the police after committing the instant indecent act, and around July 15, 2017, when committing the instant crime, he/she did not wish to conduct an investigation even after reporting to the police. Around July 21, 2017, the victim stated that he/she again requested an investigation, and that he/she was suffering from injury to the attempted rape and confinement of the instant crime. Around August 5, 2017, the victim stated that he/she had suffered from injury to the instant indecent act by compulsion. As such, the victim stated that he/she had immediately requested an investigation and requested an investigation, taking into account the relationship with the Defendant, etc. as seen earlier, it appears that the victim would have failed to respond to only the first time within the scope of imprisonment with prison labor within the scope of the Defendant, rather than formally disputing the issue with the Defendant, and that the victim did not wish to receive punishment by reporting to the police from the Defendant from the beginning to the police station or did not wish to receive compensation from the Defendant from the victim.

2. Scope of recommendations according to the sentencing criteria;

A. The sentencing guidelines do not apply to the crime of attempted rape and the crime of confinement: the crime of habitual concurrent crimes (in particular, the sentencing guidelines do not apply to the crime of attempted rape, since it is an attempted crime).

(b) Crimes of indecent act by compulsion;

[Determination of Type 1] Crimes of Indecent Act by Force by Force (Indecent Act by Force) on the General Standards for Sex Offenses (subject to the age of 13 or more)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 6 months to 2 years. The final recommending type according to the standards for handling multiple crimes: Imprisonment for at least nine months (the crime of indecent act by compulsion on which the sentencing guidelines are set and the crime of attempted rape (the crime of attempted rape) for which no sentencing guidelines are set is related to concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, only the lowest limit of the sentencing range in the sentencing criteria for the crime of indecent act by compulsion on which the sentencing guidelines are set shall be considered, and the minimum limit of the sentencing criteria set by the sentencing guidelines is lower than the minimum limit of the legal applicable sentencing range.

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○ Unfavorable Circumstances: Each of the instant crimes committed by the Defendant was committed by indecent act by compulsion, confinement, and attempted rape at the same time; in light of the background, method, etc. of the crime, the liability for the crime is not somewhat weak. The victim appears to have caused considerable mental shock and sexual humiliation as the instant case, and is seeking a strict punishment against the Defendant. Nevertheless, rather than viewing the attitude of wrong recognition, the Defendant appears to have criticized the victim.

The circumstances favorable to ○: (a) the attempted rape of this case was committed; (b) the Defendant had no record of being subject to criminal punishment prior to the instant criminal punishment.

Where a conviction becomes final and conclusive with respect to a crime of indecent act by force and a crime of attempted rape in the judgment that is subject to registration and submission of personal information, the defendant is a person subject to registration of personal information under 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

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is determined pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 15 years pursuant to Article 45(1)3 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, in full view of the nature of each of the crimes in this case and the severity of the crimes, it is not recognized that the period for registering personal information of the defendant is unreasonable, and therefore,

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

1) The recording time of this part of the conversation is about 00 minutes accurately, and the subsequent circumstances are not recorded, and the victim or the defendant has a personal seal.

Although the recording function of a fire was discontinued by itself, the possibility that the recording time would be 00 minutes by chance is rare, and the victim stated.

It seems that the time of recording has been set for five minutes in the recording function of the relevant mobile phone.

2) The defense counsel of the defendant is to use it as evidence in the future when the victim dialogues with the defendant on the outer side to use it as evidence in fact.

The defendant asserts to the effect that there is an aspect of recording by inducing the content of conversation in favor of others. However, even if there is such aspect, the defendant

the victim's statement, regardless of actual facts, recognizes the victim's statement in a specific manner rather than an unconditional, and conducts an apology.

I seem to be.

3) The victim has suffered a lot of civil criminal cases in the past in this court, resulting in a significant mental and economic damage due to the mental and economic loss when the victim had experienced a lot of past civil criminal cases.

To the extent possible, it does not want to bring the instant case into a criminal case and legal disputes, and if the Defendant reflects, he/she want to resolve the case promptly.

In fact, the victim made a statement in several times with I, etc., and had a civil and criminal dispute over several times in the process, and criminal punishment is also imposed several times in the process.

was received (Investigation Records No. 184-236, 253-256).