(영문) 서울중앙지방법원 2018.8.17. 선고 2018고합380 판결

On October 20, 2017, at the second floor F restaurant of Seocho-gu Seoul, the Defendant 2nd floor of the building in Seocho-gu, 19:00 and 25 years old and drinking drinking, and parked the vehicle by leaving the above restaurant and moving the victim to a H parking lot located far away from 1.1km on the back of his/her own vehicle, and repeating sobs on the back of the above vehicle. The Defendant continued to commit an indecent act by the victim, putting the victim on the back on the back of his/her bridge, putting him/her into the panty of the victim, putting him/her with his/her finger, raising his/her finger, raising his/her finger, her finger in the part of the victim, putting the victim’s finger, putting the victim’s finger in the part of the second floor of the building of Seocho-gu, Seoul, and 21:35 on the same day.

Accordingly, the Defendant, who was under the influence of alcohol, committed similar rape by taking advantage of the victim’s failure to resist. The summary of evidence

1. Legal statement of witness G;

1. Recording records;

1. A written request for appraisal;

1. An investigation report (specific to place of occurrence), an investigation report (including an on-site interview, etc. with a restaurant employee), an investigation report (in the case of an on-site investigator in a restaurant), an investigation report (in the case of an on-site investigator in a restaurant), investigation report (in the case of an

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297-2 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. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse;

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 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. Furthermore, it appears that the defendant can have an effect of preventing reoffending even with the sentence of imprisonment to the defendant, personal information registration, program implementation programs for sexual assault treatment, employment restrictions on institutions related to children and juveniles. In addition, considering the defendant's age, environment, family relationship, social relationship, motive and consequence of the crime, method and consequence of the disclosure or notification order, the degree of disadvantage and expected side effects of the defendant's injury caused by the disclosure or notification order, the disclosure or notification order of personal information of the defendant shall not be issued to the defendant.

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The Defendant did not have to put his fingers into the part of the victim, did not have any fact that he did not have any assault or intimidation against the victim. The Defendant, at the time of continuing to do so, did not have any assault or intimidation against the victim. In order to make the victim take first aid by continuing to do so, the Defendant was flicking the victim’s ship at the time of expanding the distribution of the victim, and so to make the victim smooth, and did not have the intent to commit an indecent act. In addition, at the time, the victim did not have been locked and did not have any intention to commit an indecent act.

2. Determination

A. Whether the Defendant committed an act, such as putting the victim in a negative book, filling out buckbucks, filling out the bucks, leaving them, etc.

In light of the following facts and circumstances revealed by the evidence duly adopted and investigated by this court, the victim’s statements in investigation agencies and this court are reliable, and according to the above evidence and each of the above evidence, it can be acknowledged that the Defendant committed the above act against the victim, such as inserting the victim’s fingers into the victim’s sound book. Accordingly, this part of the Defendant and the defense counsel’s assertion is rejected.

1) From the investigative agency to this court, the victim stated relatively and consistently on the part of the crime of this case, such as ① the situation at the time when the defendant was sent back to the defendant’s vehicle and thereafter, ② the background leading up to the movement of the defendant on board the defendant’s vehicle from the back seat of the defendant’s vehicle, ② the victim’s speech and behavior committed by the defendant against the victim and response methods against such behavior, ③ the victim’s awareness and appraisal status at the time, ④ the victim’s speech and behavior before the victim’s home, ⑤ the circumstances after the victim returned home and the circumstances leading up to the damage, and the circumstances leading up to the report, etc. There is no specially unreasonable part of the statement and the circumstances leading up to the victim’s report are natural. The victim’s motive or reason that

2) When submitting the first written complaint, the victim added the victim's fingers into the part of the victim. At the first police investigation, the victim made a statement to the effect that "At the time of the first police investigation, the victim's knee was released at the time of the defendant's knee, and the defendant was kneeed into the part of the victim, and the defendant was kneed into the part of the defendant's knee and kneed into the part of the knee, and kne up to the day of the second police investigation." The victim's statement to the effect that "from the second police investigation to this court, the victim was kneed into the part of the victim." The victim's statement was somewhat different in the part of the victim's knee and the part of the defendant's knee, and the victim's statement to the effect that the victim's knee's kne over the part of the defendant's knee is not consistent with the investigation agency's statement.

3) The Defendant is deemed to have partly inconsistent or unclear parts on the victim’s statement, such as the order of behavior committed by the victim at the rear seat of his/her own vehicle. However, there is sufficient possibility that the victim was under the influence of alcohol at the time when he/she was under the influence of alcohol, and there is sufficient possibility that he/she could not accurately memory the order or detailed part of the crime. It is difficult to say that the victim is profacing the situation at the time, and that he/she cannot accurately memory the order or detailed part of the crime. In particular, the victim appears from the initial police investigation that the situation at the time of the initial police investigation is recognized to be unsatisfacing the order of the face of the victim. It seems that the victim did not appear to have made a statement in a way that the victim did not accurately or exaggeration the situation at the time of the initial police investigation, and that the victim stated his/her memory or face as is. Therefore, it is difficult to deny the credibility of the entire victim’s statement solely on the ground that part of the victim’s statement is inconsistent or unclear.

4) At the time when the Defendant and the victim got in a restaurant, the victim was under the influence of alcohol, and the Defendant did not send the victim a substitute driver or a taxi to the house in such circumstances, and it is difficult to understand that the Defendant was moving the victim to the H Park parking lot by putting the victim on the back of his/her vehicle and driving the taxi directly under the influence of alcohol. Furthermore, even though the victim was in need of measures as alleged by the Defendant, it is difficult to accept the measures that would normally take on the part of the victim beyond the extent that the victim took care of stoves, stoves, drinking, drinking, drinking, drinking, drinking, and drinking water, and the victim took care of stoves to the hospital in serious cases, and directly unfolded the victim’s stoves to the hospital.

5) If the Defendant, as alleged by the Defendant, merely saw the victim as a way of the first aid and misleads the victim with an indecent act, it is natural that the Defendant made the victim unmisunderstanding. According to the recording containing conversations between the Defendant and the victim around October 22, 2017, after the occurrence of the instant case, the Defendant “at least 22:00, the victim does not have to have to have to have to have to have to have to have to have to have to do so. Male is male. But at all times, the mind is 20 to 30, but is living with the mind of the Defendant, and how he can have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have to misunderstanding the victim, and it is not easy for the Defendant to have to have to have to have to have to have to have to have to have to have to have to have to have to have to have his to have to have to have to have to have his to have to have to have to have to have his to have to have his to have his to have his to have his own his body.

6) On the other hand, the victim made a statement to the effect that the defendant's grandchildren repeated the defendant's grandchildren from the ship to the chest, and the defendant tried to have a knife with 3 times, and that the defendant tried to have a knife and have a knife the victim while around the victim's house. In light of the above circumstances, the victim's statement is reliable, and even according to the defendant's argument, the defendant's act as stated in its reasoning cannot be explained as first-aid source, and the defendant's act cannot be acknowledged as an indecent act in light of the victim's intention, gender, age, relationship between the defendant and the victim, specific behavior, etc.

7) According to the results of the gene appraisal by the National Scientific Investigation Institute on whether the victim suffered Cheongbbucks at the time of the instant case, the gene type identical to the Defendant was detected in the upper part of the above Cheongbucks, the kbucks attached to the above Cheongbucks, and in the inner part of the Cheongbucks and the kibs attached to the above Cheongbucks. However, the Defendant seems to have kibs of the victim.

B. In light of the following facts and circumstances revealed by the evidence duly adopted and examined by the court whether the victim was in a state of non-performance of obligation, the victim was in a state of considerable difficulty in resisting the Defendant’s act under the influence of alcohol, and the Defendant was able to recognize that the victim was raped by putting the victim into a negative part of the victim, taking advantage of the victim’s state of non-performance of obligation to resist. Accordingly, the Defendant and the defense counsel do not accept this part of the assertion.

1) The Defendant and the victim stated to the effect that the amount of drinking alcohol in the place of drinking is 4 malleries per week and 1 disease per week, and that it is difficult to see that the amount of drinking alcohol is less than that of the victim. The victim dnume dnume dnume dnume at the time of the victim dnume dnume, but the victim dnume dnume dnume dnume at the time of the victim, but the victim dnume dume dume dnume, and dume dume dume dume dume s

2) The victim continued several discussions in the instant parking lot with the Defendant, and continued the discussion even when it came to the H parking lot.

3) At the time of the instant case, the victim consistently made a statement to the effect that the victim had no mind of alcohol at the time of the instant case, and that the victim was satisfing that the victim was satisfed by satching one finger from the back seat of the Defendant’s vehicle to enter.

4) In the police investigation, the Defendant was the same as the victim was under the influence of drinking two or more soldiers a week on the spot at the police station, and the victim was drinking one disease a week. At that time, the victim was suffering from drinking alcohol on his own, and at that time, the victim was released from the toilet with a large amount of drinking water, and the victim was laid down on the toilet with a big distance and was unsatising, and the Defendant stated that he was aware of the victim's walk (Article 72-73 of the Investigation Records). Furthermore, when the Defendant moved to H parking lot for about five minutes, 30 to 40 minutes from the beginning of the Gu soil, and the Defendant stated that the victim was divingd from the back seat (Article 135, 138 of the Investigation Records) and that he was sentenced to imprisonment for a period of 1 to 15 minutes from the end of the sentence of punishment of 1 to 15 minutes from the end of the year.

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Criteria for Sexual Rape 1 (General Rape) * Adult Rape 2/3 shall be included in the category 1, but the upper limit and lower limit of the range of punishment shall be mitigated to 2/3.

【Special Convicted Person】

[Scope of Recommendation] Basic Field, Imprisonment from August to April 3

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and consequence of the crime, degree of participation, circumstances after the crime was committed, etc. shall be determined as ordered by comprehensively taking into account various factors of sentencing as shown in the arguments in this case.

The crime of this case is deemed to have committed similar rape by inserting fingers into the part of the victim, who is a subordinate employee of the victim, who is unable to resist due to the influence of alcohol, and the nature of the crime is not good in light of the course and method of the crime, the relationship between the defendant and the victim, etc. In this case, the victim appears to have been suffering from considerable mental impulse and sexual humiliation, retired from the company accompanying the crime, and sought punishment against the defendant. Nevertheless, the defendant shows an attitude to avoid liability by unreasonable justification rather than breaking his mistake.

The defendant has no record of criminal punishment in addition to a fine imposed once in violation of the Computer Programs Protection Act prior to the instant case.

Registration and submission 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 authority pursuant to

Judges

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

Note tin

1) The victim added the fingers on the part of his or her hostage into the body of his or her fingers, 'the body of his or her fingers into the body of his or her fingers,' and 'the body of his or her fingers into the body of his or her fingers.'

The expression, such as ‘the embarrasty’ was used, and all of the above expressions were added to the case where the Defendant’s fingers were inserted in the victim’s negative records.

One description does not seem to have a different meaning, and the victim has suffered a loss in this law, which has been contained in the victim's sound.

The testimony was made by the investigative agency that he was aware that he did not have a sense of being forgotten (at least 33-34 pages of the examination of witness);

2) For example, for instance, that the memory is not in the order at the time of “the investigation record No. 39),” and that the order is not well memory (for example, the 40 pages of the investigation record),”

In the end, the spirit of the Si was born, and the order was well memory (as 97 pages of the Investigation Records). It is not a farcing period, but a farcing period in the order at the time.

As stated above, I asked to speak. (No. 177 of the Investigation Records)

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제16조 제2항

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제47조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률

-아동ㆍ청소년의 성보호에 관한 법률 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제50조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제56조 제1항

-컴퓨터프로그램 보호법

-형법 제53조