(영문) 대구고등법원 2018.12.20.선고 2018노411 판결

At the time of the instant case, the Defendant was only sexual intercourse under the agreement with the victim and did not have any fact that raped the victim (it is true that the Defendant committed an act that knife his fingers at the time of the instant case, but it is only to confirm whether the victim was good for the victim due to the truth, and there is no fact that the Defendant used violence or intimidation to make it impossible or considerably difficult to resist at the time of sexual intercourse).

Nevertheless, the judgment of the court below which found the Defendant guilty on the grounds of the victim’s statement without credibility is erroneous in the misapprehension of legal principles as to the constituent elements of the crime of rape or by misapprehending the legal principles.

B. The prosecutor (unfair punishment) committed by the court below in light of the various sentencing conditions in the instant case (the completion of a sexual assault treatment program with imprisonment of three years and 80 hours) is too uneased and unfair.

2. Judgment on the defendant's assertion of mistake of facts or misapprehension of legal principles

A. The judgment of the court below

The Defendant argued to the same or similar purport as the grounds for appeal, and the lower court rejected the Defendant’s assertion on the grounds that, in full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, the victim’s statement is reliable, and that the Defendant could sufficiently be convicted of rape by threatening the victim as stated in the lower judgment at the time of the instant case, by making it impossible or considerably difficult for the Defendant to resist the victim as stated in the lower judgment.

1) Determination of the contents and credibility of the victim's statement

A) Details of the victim’s statement

On August 2, 2016, when the victim was raped by the defendant from the investigative agency to the court below, "the victim was forced to leave the victim's face at the time of the crime," and then the defendant was demanded to do so, and the victim refused to do so by "the victim's face because he did not want to do so," and "the defendant was able to do so?" until 10 times, she tried to leave the victim's phone with the defendant's telephone and the defendant's telephone, but the defendant did not have violence against the victim before her, and the defendant was forced to leave the victim's face at the time of the crime, and the defendant did not her face so that she would not have any other victim's face so that she would not have any other victim's face. The defendant was forced to die, but it was difficult to see that she would have her face without her answer."

B) Determination of credibility of the victim's statement

(1) The above contents of the victim’s statement are generally consistent, and are very specific to the extent that it is impossible to know without direct experience. In light of the background, contents, and attitude, etc. of the statement, there is no circumstance to suspect the credibility of the statement. Moreover, there is no special reason or motive to suspect the Defendant in a false fact without the victim.

(2) The defense counsel asserts that the statements made by the victim in the investigative agency and the statements made by the court of the court below are not consistent in comparison with the statements made by the victim in the investigation agency. Examining the victim's statements, it is recognized that the victim's sexual intercourse before the crime of this case was conducted in the defendant's house, how the victim became the defendant's house at the time of the crime of this case, how the defendant acted as knife as knife, and how the victim returned to the defendant's house on the day when the crime of this case was committed is not consistent.

① However, considering the fact that when the victim appeared as a witness in the court of the lower court and stated as above, the victim’s statement was made on June 25, 2018 when about one year and ten months or more from the date of the occurrence of the instant case, it is natural that the victim accurately memorys all the circumstances related to the instant crime, and the victim consistently makes a statement in the core part, such as the Defendant’s speech and behavior at the time of the instant crime, and the appraisal that the victim sawd at the time of the instant crime, and the part that the victim failed to consistently make is merely an incidental circumstance, such as the situation before and after the crime, whether the victim took the kitchen with the Defendant at the time when the Defendant was knife, or not going through the kitchen, and not going through the kitchen, it cannot be said that the victim’s statement is difficult to suspect the credibility of the victim’s statement on the ground thereof.

2) Specific determination as to whether the Defendant committed violence or intimidation in the course of the instant case

A) On July 24, 2016, 205:11 on the day of the instant case, the Defendant: (a) on July 24, 2016, 201, the day nine days before the date of the instant case, when the victim saw the Defendant her hedging, and the Defendant, who suffered from this defect, went back to the her motherel room; (b) was released from the wall of the victim on the ground that the victim did not open the door; (c) the victim her sckes, her head, her head, her head, and her head were faced; (d) the victim her head, her head, her head, and her head, her head, and her head, and the victim her head, her head, and her head, so that the victim did not appear to have been her head, and the victim her head, she did not appear to have been her head and her head, and the victim was her head, and the victim was her head and her head.

B) After the victim was abused by the defendant from July 26, 2016 to July 31, 2016, the victim had a sexual intercourse with the defendant during the period of nursing. However, the victim continued to threaten the victim on the ground that the victim's fingers occurred in the course of cutting away from the telecom on July 24, 2016, because "the victim caused fingers," and the victim was threatened with fingers. When the defendant discharged the defendant on July 31, 2016, it was thought that the relationship with the defendant was completely cut, and the victim thought that it was difficult for the victim to have the above sexual intercourse with the defendant on July 31, 2016, and the victim actually released from the defendant on the part of the defendant, and the victim expressed his sexual intercourse with the defendant on July 26, 2016, and the victim expressed his sexual intercourse with the victim on July 24, 2016.

C) The Defendant contacted the victim by means of cellular phone and text, etc. from the victim’s personal contact. The victim neglected the contact of the Defendant, and the victim met the Defendant on the date of the occurrence of the instant case because he was unable to drive because he was able to leave documents to be submitted to the insurance company, which eventually led the Defendant to do so on the day of the instant case, and according to the Defendant. The victim demanded out of the Defendant who completed the heart meals. While the victim was in need of constant sexual intercourse, the Defendant seems to have neglected the sexual intercourse and the victim refused the sexual intercourse, and the victim was able to do harm to the Defendant’s kitchen. The victim thought that if the Defendant refused the Defendant’s sexual relationship with the Defendant, the victim was likely to cause harm to the victim without complying with the Defendant’s request, and that the victim was unable to respond to the Defendant’s request due to his mental attitude, taking into account the victim’s psychological attitude that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually experienced.

D) On August 4, 2016, the Defendant called on August 11, 2016, 11:09 (before the Defendant’s emergency arrest on the ground of the instant crime) (the Defendant’s emergency arrest on the ground of the instant crime) and sent phone to the victim, which may be detained on the ground that the Defendant got off to the police station, and on the ground that the victim respondeded, the Defendant could have knicked on the knife, knife, knife, knife, knife, knife, knife, rather than knife, knife, knife, knife, knife, knife, knife, knife, knife, knife, knife, knife, knife, knife, and knife.

E) Meanwhile, after the crime of this case was committed, the victim appeared at the defendant's home with the defendant's house and she saw him from the breakwater south-dong breakwater at the port of port, and sing for about one hour and 30 minutes after she sing. However, the victim's statement that "after she was raped, the victim did not have the same time when the defendant and she want to flee, and it was difficult for the victim to leave her house without doubt that she would naturally act, and that the victim would leave her house to report her to the police." Considering that the victim's words that she was sent to the victim's meeting, and that the victim reported her rape to the police station around 30:0 on August 30, 2016, the victim reported her rape to the victim, and that the victim reported her rape to the police station of this case, and that the victim reported her rape to the police station of this case and the victim's statement to the police station of this case."

B. Judgment of the court below

1) Relevant legal principles

A) The extent of the formation of a conviction to be found guilty in a criminal trial is reasonable doubt.

There should be no room for doubt. However, it is not required to exclude all possible suspicions, and rejection of evidence recognized as probative value is not allowed as exceeding the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 94Do1335, Sept. 13, 1994). The term “reasonable doubt” refers to the reasonable doubt that is reasonable for the probability of a fact that is inconsistent with the facts that is not compatible with the facts based on the logical and empirical rule, not including any doubt and faith, and it is necessary to establish the basis for this sexual prosecution that is grasped in relation to the fact finding in relation to the circumstances favorable to the defendant, and such doubt based on conceptual or abstract possibility is not included in a reasonable doubt (see, e.g., Supreme Court Decision 2004Do2221, Sept. 6, 2004).

In addition, when determining the credibility of a witness, such as a victim, etc., the following should also be examined: (a) the reasonableness of the content of the statement itself, objective reasonableness, consistency before and after, as well as its human beings; and (b) the existence of interests derived from the statement (see, e.g., Supreme Court Decisions 2008Do8137, Jan. 15, 2009). Furthermore, insofar as the major parts of the statement made by the victim, etc. are consistent in light of the empirical rule, and there is no unreasonable or contradictory part in the statement in light of the empirical rule, and there is no obvious motive or reason to make a false statement against the defendant, the credibility of the statement does not be readily denied solely on the ground that the statement made by the victim, etc. was somewhat inconsistent (see, e.g., Supreme Court Decisions 2006Do5407, Nov. 23, 2006; 207Do10728, Mar. 14, 2008).

Meanwhile, in determining the credibility of a witness’s statement after the first instance court initially conducted the procedure for examination of witness, the appellate court’s determination of the credibility of the witness’s statement is based on the following factors: (a) not only on whether the content of the statement itself conforms to logical and empirical rules, but also on whether it conforms to the witness’s statement or third party’s statement; (b) the appearance and attitude of the witness being present in the open court after being sworn before a judge; and (c) the appearance and appearance of the witness being present in the witness’s statement in the open court after being sworn; and (d) the appearance and appearance of the witness being present in the witness’s statement in the open court after being sworn before a judge; and (b) the appellate court’s determination of credibility of the witness’s statement in the first instance court under the current Criminal Procedure Act is based on the records including the witness examination protocol, but also on the grounds that the appellate court’s determination of credibility of the witness’s statement in the first instance court’s first instance court’s appellate court’s first instance judgment’s determination is unreasonable or unreasonable.

B) In order to establish the crime of rape, the perpetrator’s assault and intimidation must be sufficient to make it impossible or considerably difficult to resist the victim, and assault and intimidation are not resisted by the victim.

Whether it was possible or considerably difficult to determine the extent of violence and intimidation shall be determined by comprehensively taking into account all the circumstances such as the details and degree of assault and intimidation, the background leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of sexual intercourse, etc.

Inasmuch as it was possible to escape from the scene of crime or the victim did not resist with the intent of the victim, readily concluding that the perpetrator’s assault and intimidation did not reach the extent to which it would considerably difficult for the victim to resist (see, e.g., Supreme Court Decision 2017Do21249, Feb. 28, 2018).

In addition, even in cases where an offender has sexual intercourse with a victim by means of intimidation without accompanying the assault, if the degree of intimidation was the same as the above, the crime of rape shall be established. Even if there is a time interval between intimidation and sexual intercourse, if it is recognized that the sexual intercourse has been achieved by intimidation, it shall not be different if it is deemed that such intimidation has been made. In regard to whether such intimidation has "the degree of making it impossible or remarkably difficult for the victim to resist," the degree of intimidation cannot be determined solely with the content of intimidation, and the circumstances leading up to the intimidation, the identity of the perpetrator and the victim

In full view of all the circumstances, such as social status, relationship with the victim, the situation at the time of sexual intercourse and the subsequent circumstances thereof, and the content and degree of psychological pressure that the intimidation may affect the victim, the determination must be made carefully (see, e.g., Supreme Court Decision 2006Do5979, Jan. 25, 2007).

2) Specific determination

Based on the above legal principles, if we look at the circumstances that the court below properly explained, and look at the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, the principal statements of the victim can be sufficiently believed. Thus, the judgment of the court below which found the defendant guilty of the facts charged in this case is just and acceptable, and there is no error as alleged by the defendant (in order to reverse the judgment of the court below that recognized the credibility of the victim's statement, such judgment of the court below is not acceptable, and there is no sufficient and sufficient and sufficient circumstance to understand it. Various circumstances mentioned in the court below to emphasize the defendant's self-determination in the court below's trial process are most present and deliberated, and most of all the various circumstances already considered in the court below's determination of the credibility of the victim's statement were examined, and even if all the documents and evidential materials submitted by the court below and the court below were examined, the defendant's appeal is not justified and there is no special ground for misunderstanding of legal principles or misapprehension of legal principles.

A) The major contents of the victim’s statement are not only consistent from the investigative agency to the court below’s judgment, but also very concrete. The statement is not unreasonable or contradictory in light of the empirical rule.

B) At the time of the instant sexual intercourse, the Defendant: (a) promised the victim to be aware of the circumstances within the nature at the time of the instant sexual intercourse; (b) promised the victim to be satisfy, actively fry the Defendant’s timber and sexual organ; (c) completed the Defendant’s sexual intercourse with his body; and (d) carried the body into a bath room according to the Defendant; and (c) asserted that the victim’s act is difficult to be deemed to be a person’s act responding to the sexual behavior without any choice due to extreme suppression.

However, in light of the following points, the defendant's above assertion is without merit.

(1) The degree of countermeasures taken by a rape victim is bound to vary depending on the victim’s sexual condition and specific circumstances. However, solely on the fact that the victim did not resist with his/her force, readily concluding that the perpetrator’s assault and intimidation did not amount to the extent that the victim’s resistance was significantly difficult.

(2) It is only the Defendant’s unilateral assertion that the victim actively committed sexual intercourse at the time of the instant sex relationship.

(3) According to the statement of the victim, the victim's act seems to be detrimental to the knife of the victim at the time of the instant case, and the defendant's act that threatens the victim's life or body was frightened by his knife at the time of his knife with his knife with his knife, and that his knife's knife with his knife with his knife with his knife with his knife with his knife with his knife with his knife, and forced the victim's knife with his knife with his kn

(4) Since then, when the victim inserted the sexual organ into the part of the victim's sexual organ, the victim took action to refuse sexual intercourse, such as seeing the head of the victim's sexual organ by hand and keeping the defendant's face in his hand (Evidence No. 408-410 pages), and the defendant "I am dead? I am dead? I am son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son'

C) The Defendant asserts that the victim’s statement has no credibility in light of the fact that, if the victim was in the state of psychological pressure at the time of the instant crime, there was no sexual intercourse and there was a high possibility that sexual intercourse might occur in the victim’s negative body at the time of sexual intercourse because of the lack of sexual intercourse, and that there was no special opinion, such as trauma, as the result of the examination conducted by the hospital immediately after the instant crime, did not appear.

The Defendant’s above assertion is a meaningful argument that the victim’s sexual intercourse occurred at all times or in principle at the time of committing rape, and it is not a fact-finding, and there is no reason to further examine it (it is difficult to view that such circumstance is incompatible with the victim’s statement that the victim was raped at the time of the instant case, even if the victim did not have any standing at the time of the instant sexual intercourse, it is difficult to view that such circumstance is incompatible with or contradictory to the victim’s statement that the victim was raped at the time of the instant case).

D) On August 4, 2016, immediately after the Defendant was arrested due to the suspicion of violence on July 24, 2016 and the suspicion of rape of this case, etc., the Defendant asserted that, in light of the following: (a) the mother of the victim found the Defendant to be a detention room in the Poan Police Station; (b) the Defendant refused to reach an agreement of KRW 20 million from his mother; and (c) the Defendant told the victim that he would turn off NAE with the victim when she associates with the victim, it is highly probable that the victim was raped with the sex of this case for the purpose of receiving a large amount of money notified by the Defendant; and (d) the Defendant argued that there was a possibility that the victim was a false fact that she was sexual intercourse with the sex of this case for the purpose of receiving money from the Defendant.

그러나 ① 이는 피고인의 일방적인 주장일 뿐 그 구체적 사실관계를 충분히 확인할 수 있는 객관적 증거자료가 없는 점, ② 게다가 피해자와 피고인이 교제하던 중 결별과 관계 단절 의사를 분명하게 표시한 사람은 피고인이 아니라 피해자인 점, ③ 피고인은 그 이후 피해자에게 휴대전화와 문자 등으로 집요하게 반복적으로 연락하여 만남을 요구하고 결국 피해자를 피고인의 주거지로 데려간 다음 피해자가 거부 의사를 밝혔음에도 불구하고 이 사건 성관계를 계속 요구하였던 점, ④ 결국 피해자는 분명한 거부 의사를 표시하였지만, 피고인의 자해 시늉을 동반한 위협에 심한 겁을 먹고 어쩔 수 없이 성관계에 응하였던 점, ⑤ 그 후 피해자가 2016. 8. 3. 경찰에 피해신고를 하고, 피고인에게 '2016. 7. 24.자 폭력 및 2016. 8. 2.자 이 사건 성폭력 피해에 관하여 손해배상을 요구하는 것은 범죄를 당한 피해자로서 충분히 행사할 수 있는 권리인 점(피고인이 당심에서 제출한 증 제3, 4호증의 화해권고결정과 소장) 등을 포함하여 피고인이 제출한 여러 증거자료들만으로는 피해자가 거액의 금전을 받을 목적으로 피고인을 무고한 것이라고 단정할 수 없다) 등에 비추어 볼 때, 피고인의 위 주장은 이유 없다(피고인의 위 주장은, 단순히 관념적인 의심이나 추상적인 가능성에 기초한 의심으로서 합리적 의심에 포함된다고 할 수 없다).

3. Judgment on the prosecutor's assertion of unreasonable sentencing

Examining the various sentencing conditions of this case, the crime of this case was committed in a manner that seems to cause harm and injury to the victim by suppressing the victim's resistance in a manner that seems to cause harm and injury if the defendant did not respond to the defendant's sexual intercourse, while the defendant was notified of the judgment from the victim and did not abandon the gathering of the victim's family. The crime of this case was committed in a manner that is likely to cause harm and injury to the victim, and was committed in sexual intercourse with the victim by coercing the victim's resistance in a manner that is likely to cause harm and injury to the victim. The details and contents of the crime, the method and relation between the defendant and the victim.

In light of the fact that the nature of the crime is very poor and the circumstances of the crime are heavy, and the victim seems to have suffered severe fear and a sense of sexual shame. Nevertheless, it seems that the defendant shows an urgent attitude to avoid the crime by denying the crime due to the defense that the police from the police to the court of the trial, which was difficult to obtain, and thus, it cannot be seen that the defendant seriously reflects the defendant's attitude to avoid the responsibility for the crime. The victim did not compensate for damage, did not receive the letter from the victim, did not know that he was sentenced to imprisonment with prison labor for one year due to the violation of the Toxic Chemicals Act, and without being informed of the fact that he was sentenced to imprisonment for the crime in this case during the period of the repeated crime, and without being informed of the fact that the victim was committed.

However, there are many criminal records that the defendant has been subject to criminal punishment due to the punishment, suspension of execution, fine, etc., but there are no records of committing the same sexual crime, the health of the father and the mother and child who have been involved is not good, the good social relation is good, and the support activities for the foreign children who need assistance, etc. are favorable to the defendant.

In addition, considering the following factors: (a) the Defendant’s age, character and conduct, environment, family relationship, health status, motive and background of the crime, means and consequence of the crime; and (b) various conditions of sentencing as shown in the records and arguments in the instant case, including the circumstances before and after the crime; (c) the lower court sentenced the Defendant to three years of imprisonment with labor equivalent to the lower limit of the applicable sentencing standards set by the sentencing guidelines (two to half years); (d) appears to have ordered the Defendant to complete sexual assault treatment programs for 80 hours necessary for the prevention of recidivism; and (e) there are no special circumstances or changes in circumstances that may change the sentence of the lower court at the trial; and (e) it is acceptable that the sentence imposed by the lower court is within the appropriate scope of punishment in accordance with the Defendant’s responsibility for the crime; and (e) it is not recognized that it is unfair because it is too unreasonable (in comparison with the first instance court, where there is no particular change in the sentencing conditions, and the sentencing of the first instance court is not beyond the reasonable scope of discretion (see Supreme Court en banc Decision 2015Do36365, Jul. 265, 2015.

Therefore, the prosecutor's ground of appeal disputing unfair sentencing is without merit.

4. Conclusion

Therefore, since all appeals filed by the defendant and the prosecutor are without merit, they are all dismissed in accordance with Article 364 (4) of the Criminal Procedure Act (However, since the 9th 6th eth 6th eth eth 6th eth eth 2017 in the judgment of the court below is deemed to be a clerical error in July 26, 2016, it shall be corrected to be used as " July 26, 2016" in accordance with Article 25 (1) of the Rules on Criminal Procedure.