2016No496 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (State)

Rape, rape, etc.

Act on Special Cases Concerning Rape (Rape, etc. in Residence), Fraud, Private Document

§ 40, 200.

2016 early 37 Application for compensation order

A

Defendant

Hashee, Hashee, Gosong, Kusong, Tasong, Kasong, Task, South-win, Haskyn, Hasn, Hasn,

Freeboard of prosecution, and in-depth trial

Attorney C Q (National Ship)

CF

Daegu District Court Decision 2014Gohap686, 2015Gohap536 (Joint) Decided August 12, 2016;

2016, 2016, 2016, 222, 2016, 2016, 2016, 2016, 2016,

Gohap25(Joint), 2016, 52(Joint), 2016, 169(Joint), 2016, 2016, 289

(Consolidated) Judgment and the application for remedy order of 2015 Seocho1910, 2016 early 151

January 26, 2017

1. The part of the judgment below excluding the compensation order shall be reversed.

2. The defendant shall be punished by imprisonment with prison labor for five years;

3. The order of the Defendant to complete the sexual assault treatment program for 40 hours. 4. Of the facts charged in the instant case, each fraud in the lower court case 2016Gohap21 among the facts charged, each of the facts charged in the instant case, each of the facts charged, and each of the facts cited in the relevant private documents are acquitted

5. The Defendant shall pay 1.65 million won to CF, an applicant for compensation, by fraud. The above compensation order may be provisionally executed.

1. Summary of grounds for appeal;

A. Error of mistake

In relation to the fraud loan (hereinafter “the fraud loan in this case”), which is a criminal fact in the lower judgment, the lower court found the Defendant guilty of the part of the lower judgment, on the grounds that there was no fact that the Defendant forged the lease contract with Qu, R, etc. or conspired to obtain a loan from a financial institution by using the lease contract.

B. Unreasonable sentencing

The punishment of the court below (seven years of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Legal doctrine

A joint principal offender under Article 30 of the Criminal Act commits a crime jointly by two or more persons. In order to constitute a joint principal offender, the subjective element is the intent of joint processing and objective requirements, and the fact of implementation of a crime through functional control based on a joint doctor is required. The intent of joint processing is not sufficient to recognize another person’s criminal act but to deny it without restraint. It is not sufficient that the intent of joint processing is to recognize another person’s criminal act, and to jointly commit a specific criminal act, and to shift one’s own intent by using another person’s act. Therefore, in order to determine the establishment of joint principal offender, the relationship of mutual use based on the intent of joint processing should be proven to the extent that there is no reasonable doubt (see, e.g., Supreme Court Decision 2015, 10, 2015Do5355, Oct. 29, 209).

A person who does not directly share and implement part of the elements of a crime among the competitors;

The so-called crime liability as a co-principal may be imposed according to the foregoing. However, in light of the status, role, control or power over the progress of the crime in the entire crime, it should be acknowledged that the functional control of the act through essential contribution to the crime exists, not just as a mere conspiracy (see, e.g., Supreme Court Decision 2009Do2994, Jun. 23, 2009).

B. Specific determination

In full view of the following circumstances acknowledged by the record in light of the above legal principles, it is insufficient to deem that the Defendant was involved in the instant fraudulent loan to the extent that there is no reasonable doubt as to it. Nevertheless, the lower court convicted the Defendant of the facts charged regarding the instant fraudulent loan. In so doing, the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment. Accordingly, this part of the Defendant’

(1) The Defendant has consistently and consistently avoided the instant fraud loan from the investigative agency to the court of the trial. In particular, the Defendant refused to commit the crime by denying the Defendant’s criminal act. In particular, the Defendant applied to the police protocol of the TPP, N, AJ, and AW, which the Defendant stated in the lower court that he/she participated in the criminal act, as a witness, and the prosecutor applied to the above witness, but the said witness did not appear, and the Defendant was unable to be examined as evidence due to the said witness’s failure to appear. Ultimately, the Defendant actively applied to the above witness in the trial for the witness again, but the said witness was unable to be examined as a witness due to the said witness’s failure to appear. If the Defendant’s assertion is false, it appears that the said witness did not have been able to know the fact of the Defendant’s involvement. If the Defendant’s assertion was based on such risk, it appears that the lower court had the prosecutor applied to the witness or did not apply to the witness in the trial at the trial.

② Q and R stated in the prosecutor’s office that the Defendant participated in the instant fraudulent loan by advertising on the Internet and introducing the clients to the clients (hereinafter referred to as “Evidence Records”) (2: 1619-1620 of the original trial records; hereinafter referred to as “Evidence Records”); in the Daegu District Court 2014Da3539 case and the Daegu District Court 2014No477 case (hereinafter referred to as “related criminal cases”) which became final and conclusive after having been convicted of the instant fraudulent loan; and in the judgment of the relevant criminal case, Q and R stated that Q and R, in collusion with the Defendant, obtained the loan from the financial institution by forging and using the loan documents as stated in the instant facts charged.

However, R made a false statement in the court of original instance that the defendant conspireds with Q to the extent that Q would have come to her branch, instead of paying the agreement on the case of rape between the defendant and Q, such a false statement was made, and after receiving the loan, the defendant made a false statement to the effect that Q would correspond to the defendant's defense as a whole in the court of original instance.

Even if Q and R made a false statement in a related criminal case in order to be exempted from their responsibility, it is sufficient that Q and R had made a false statement in the court of original instance because they had already become final and conclusive at the time when they were made a statement in the court of original instance, and there is no motive to make a false statement in the court of original instance. Above all, Q and R have no motive to make a false statement in the court of original instance. In other words, if Q and R have made a true statement in the related criminal case, it is natural to make a statement in the same way as the court of original instance, but Q and R are not in a relationship with the Defendant, and they do not seem to have received or promised any compensation from the Defendant. Therefore, it seems that there is no motive to make a false statement even when they are subject to punishment for perjury for the Defendant.

③ From February 7, 2013 to March 25, 2013, Q transferred KRW 19020,000 to the Defendant (the trial record 232-237 pages, 285-286 pages), however, R stated that there was no money divided into commission or allowance to the Defendant at the lower court. In so doing, the lower court acknowledged that R made a statement contrary to the aforementioned objective evidence.

However, according to Q’s statement, the above remittance details include: (a) the defendant was found guilty of the crime that he acquired K7 vehicles, and the above judgment became final and conclusive (Tgu District Court Decisions 2013Da6441, etc., Daegu District Court 2014Da6473, etc., Daegu District Court 2018 Daegu District Court 2000, Daegu District Court 201Hun-Ga3873). (b) the defendant transferred a certain amount of money to 300,000 won per month when he attempted to obtain a loan under the name of the defendant; (c) the defendant was subsequently returned a certain amount of money (the trial record 286-287). According to the defendant’s statement, the defendant’s statement that part of the K7 vehicle sales proceeds shipped out under the name of the defendant, or the loan that he received under the name of the defendant was paid to the defendant for some or some of the loans borrowed under the name of the defendant (Evidence 123-124, etc., 20131).

④ The lower court acknowledged that: (a) the agreement amount on the Defendant’s rape case was merely KRW 5 million; (b) the Defendant, as stated in the facts charged in the judgment between 2012 and 2014, did not have any difficulty in raising the said agreement amount, even though it was difficult for the Defendant to commit the crime of fraud and acquire more than KRW 100 million; and (c) the Defendant consented to the agreement amounting to KRW 280,000,000,000 in consideration of the total amount of damage and KRW 5,000,000, which would be sufficiently anticipated to be sentenced to severe punishment, was difficult to obtain it in light of sound common sense and empirical rule.

However, it does not seem that the defendant would not raise money obtained through fraud, and it cannot be ruled out that there is no credibility in the statement of R as above, because it cannot be said that there is no credibility in the statement of R as mentioned above, in an imminent mind that the defendant should prepare the agreement money.

In light of the fact that the defendant was over 10 years old Q, R and was punished several times due to robbery, fraud, violation of the Specialized Credit Financial Business Act, etc., the court below held that it was difficult for the defendant to believe that Q, R and lending was simply carried by him, or that he consented to the role of the president for Q, etc. even though he did not participate in the crime, but the defendant was in the position to learn the method of the instant fraudulent loan (the trial record 24-245 page), and that the defendant was trying to learn the method of the instant fraudulent loan (the trial record 244-245 page), although the defendant was the person who extended Q and R, the defendant was the person who was over the age of Q and R, but the actual appearance was not visible, and it was very difficult for him to economic situation as a person with bad credit standing.

Therefore, it is not easy to reject the possibility that he/she served as the president in consideration of preparing the agreement on rape cases.

⑤ Even according to Q’s statement, the lower court recognized that the Defendant was aware of the fact that the Defendant was involved in certain criminal acts, on the ground that Q Q’s statement stated that: (a) the Defendant was in the same place as at the time of delivery of AA, AO, AD, AD, AW, BA; and (b) the Defendant was accompanied when searching for a bank or a tax office; and (c) the Defendant was simply able to assist the Defendant in conducting fraud lending operations.

However, even according to the above statement of Q Q, it is unclear what specific role the Defendant shared in the instant fraud loan, and even if the Defendant partly assisted, it cannot be deemed that Q Q, AH, AP, AU, or AV has made an essential contribution to the crime. Furthermore, Q does not participate in the fraud loan, such as: (a) although the Defendant was accompanied by the tax office or bank in the case of crimes related to Q, AH, AP, AP, AU, or AV, the Defendant did not participate in the fraud loan; (b) there is no fact that the Defendant was involved in the false application for business registration, etc. in the case of crimes related to C.D, AD, AJ, N, AW, AW, and BY; (c) even if the Defendant partly assisted, it is difficult to view that Q did not have any involvement in the Defendant’s act of aiding and abetting the Defendant by making a statement to the extent that Q did not have any considerable contribution or any other act of aiding and abetting the Defendant to the extent that Q did not have any specific contribution to the Defendant’s act of fraud.

④ At the court of the court below, AD, which received a fraudulent loan from the victim bank in Q, etc., was aware that the defendant was a person who borrowed the same kind of loan with him, and the defendant was also aware of the fact that the defendant entered the same Daegu Tax Office in order to obtain a loan, and the defendant also made a part of the 18 million won loan to Q and R as the fee, which was given to Q and R as part of the 18 million won loan. In addition, around May 2013, Q and R were required to communicate with Q and R as additional money, and it was necessary for Q and R to have a guarantor to make loans, and Q and R are called "A during Q and R to have a guarantor." (the trial record No. 172-175 of the trial record). Even if the above statement was made, it is difficult for the defendant to evaluate the defendant as a person who performs a certain role like Q and R in the fraud loan in this case.

7) AH, AF, AO, AAA, AG, BA, and AS, in collusion with Q and R, made a false statement that they did not contact with any other person than Q and R, or that they did not know the Defendant at all (Evidence Records 2: 401-405, 676, 752-753, 954, 1098, 1569-1570, 158, 1589-1570, and 1582). AV, and AZ, which were summoned as a witness at the trial, were irrelevant to this case, and the Defendant submitted a statement that there was no way to stay.

③ AM, AV, AZ, and CA from among the holders of title who jointly filed for a false business registration or loan in collusion with Q or R, the police stated them as follows:

T AM은 남자 한 명을 만났는데, 위 남자는 30대 중반으로 경상도 사투리를 사용하였고, Q과 R은 아니라고 진술하였다(증거기록 2권 435~436면). Q AV는 남자 두 명을 만났는데, 한 명은 40대 초반으로 앞머리가 벗겨져 있었고, 모자를 착용할 때가 있었으며, 약간 뚱뚱한 편이고, 신장은 175cm 정도였으며, 나머지 한 명은 20대 정도로 보였다고 진술하였다(증거기록 2권 498~499면, 689~690 면).

AZ only two male persons met, Q and R, one male person appears to be 30 second to 40 first, and one male person appears to be 30 second to 40 first, and two male persons usually appear to be the same as that of the first half of 30th and that their body was 811th (Evidence record 2: Q and R. The above male person was not Q and Q. The first male person was not a 832th, one of which was 1st to 8th, and the second male person was 1st to 8th of 5th of 5th of 5th of 5th of 8th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 5th of 1st of 5th of 2th of 1st of 3th of 5th of 3th of 2.

① AP, N, AJ, and AW, in collusion with Q, Q or R, stated to the effect that they filed a false application for business registration or loan after introducing the Defendant from R from the police (Evidence Nos. 669 to 670, 73-74, 774, 818, 846), among the holders of the title for which they filed a false application for business registration or loan (Evidence Nos. 669 to 670, 73-74, 818, and 846). However, the possibility that the above nominal holders were those who have a substantial relationship with Q Q or R and R in the same context as those who made a false statement in the relevant criminal case may not be ruled out. N, AJJ

In the case of an application for business registration or an application for a loan under the name of the defendant, it is unclear to which the defendant was specifically responsible even if it was based on the statement made by the AP. Meanwhile, according to the AP statement, the defendant applied for business registration with a document attached by the defendant, and according to the AP's statement, the defendant was issued a certificate of employment from the defendant, and 20,000 won was dry. However, it is sufficient to deem that this part of the application falls under the aiding and abetting unless there is any material such as the defendant involved in the loan or received the fee distribution, it is sufficient to deem that it did not reach the division of roles

① Even if the statement of Q and R, or the statement of the holder of a title who applied for registration of business or false loan, it is unclear how the Defendant specifically served in the instant fraudulent loan, and even in the facts charged in the instant case, it is not entirely indicated how Q, R and the Defendant conspired to commit a crime, and what role the Defendant served in applying for registration of business or for loan.

(1) The facts recognized in a final and conclusive judgment of another criminal case related thereto in a criminal trial shall be special.

Unless there exist any circumstances under which the final judgment of the relevant criminal case is deemed difficult to be adopted in light of the content of other evidence submitted in the relevant criminal trial, it may be rejected (see Supreme Court Decision 2011Do15653, Jun. 14, 2012). As to the criminal facts committed in collusion with the Defendant by Q and R in collusion with the Defendant, the said judgment became final and conclusive in the relevant criminal case. However, in light of the aforementioned circumstances, it is highly probable that Q and R were likely that Q and R made a false statement as an accomplice in order to reduce their responsibility in the relevant criminal case, and that it is difficult to adopt the final judgment as it is, as it is, the fact-finding of the said final judgment.

3. Conclusion

Therefore, the defendant's appeal has merit, and since the court below imposed a single punishment by deeming each crime as concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment below excluding the compensation order among the judgment below is reversed in its entirety. Therefore, without examining the defendant's assertion of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act

【The reasoning of the judgment of the court below for the above reasons) facts constituting an offense and the gist of evidence. The summary of facts constituting an offense and evidence recognized by this court is identical to each corresponding column of the judgment of the court below, except for the part of the case of the court below 2016Da21 (No. 5, No. 17, No. 21, No. 21, No. 25, No. 28, Dec. 8, 200)

Application of Statutes

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

(a) The occupation of rape in a residence: Article 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 297 of the Criminal Act. The occupation of the rest of fraud except for the cases of the original judgment 2016Gohap22: Article 347(1) of the Criminal Act;

C. The fraud of the lower judgment in the instant case: Articles 347(1) and 30(d) of the Criminal Act; and Articles 231 and 30 of the Criminal Act

(e) The occupation of uttering of the perjury documents: Articles 234, 231, and 30 of the Criminal Act;

2. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

3. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes concerning Crimes of Violation of Special Act on the Punishment, etc. of Sexual Crimes in the Judgment with the most severe punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act

4. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

5. A sentence of compensation order and provisional execution;

The crime of this case under Articles 25, 31(1), (2), and (3) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases Concerning the Promotion, etc. of Legal Proceedings”) is very heavy in that the defendant intrudes upon the victim E’s residence, and commits rape by threatening the above victim to send goods to the unspecified number of people, and commits fraud by deceiving 33 million won from the victim, defrauding 75 million won from the victim who was aware of the fact, deceiving 75 million won against C, who was aware of the fact, in collusion with the loan hub, submitted the certificate of employment to the bank, by deceiving 3,20,00 won from the telecommunications agency, and by deceiving 3,20,000 won from the victim’s agent. The victim E appears to have received a great sexual humiliation and mental shock by being raped from the defendant at the residence that should be the most safe and peaceful space. The defendant did not receive any damage to the victims of the crime of fraud at all during the past, and did not receive any punishment from the victim’s.

On the other hand, the Defendant is attempting to commit a crime, and is against the mistake. The Defendant paid a reasonable amount of agreement to the victim E, and the above victim does not want the punishment of the Defendant. Each crime in the holding of the judgment is necessary to consider equity with the case where the judgment was rendered at the same time as the judgment became final and conclusive.

In addition to these circumstances, the punishment as ordered shall be determined by comprehensively taking into account all the circumstances, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the commission of the crime, and the circumstances after the commission of the crime, etc.

Registration of Personal Information

Where a conviction becomes final and conclusive with respect to a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the accused 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

Disclosure Order and Exemption from Notice Order

The Defendant has no record of having been punished for a sex crime during the past 20 years. The Defendant is expected to prevent the Defendant from repeating a crime even with the registration of personal information of the Defendant and orders to complete a sexual assault treatment program to a certain extent. In full view of the benefits expected by the disclosure order, the effects expected to prevent sexual crimes, and disadvantages and side effects of the Defendant resulting therefrom, etc., the Defendant’s personal information is determined as having special circumstances that may not disclose the Defendant’s personal information. As such, an order to disclose and notify the Defendant is not imposed pursuant to Article 47(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 49(1) of the Act on Special Cases Concerning

The acquittal portion

Of the facts charged in the instant case, each fraud in the lower court case 2016Kahap21, each of the facts charged in the instant case, each of the facts charged was committed, and the summary of the exercise of each of the respective private documents, is identical to the part of the lower court 2016Kahap21 (No. 5, 17, 21, and 13, the lower court’s judgment) among the facts charged in the instant case. As examined earlier, all of this part constitutes the time when there is no proof of crime, and thus, is acquitted under the latter part of

Equal judges of the presiding judge;

Judges fixed-term

Judge Jeon Soo-soo

1) In this respect, any objective person who was loaned KRW 15 million to the Defendant through Q, etc. in accordance with Article 34 subparag. 11-12 of the lower judgment.

It seems that the defendant did not submit the material."