(영문) 서울중앙지방법원 2017.11.24. 선고 2017고합857 판결

Around October 1, 2016, the Defendant had sexual intercourse with the victim, who had drinking together, had the victim feel vulnerable to drinking and had sexual intercourse with the victim. At around 03:00 on the same day, the Defendant had to put the victim into the residence of the victim in Seoul Jung-gu E201, Jung-gu, Seoul, and had sexual intercourse with the victim once by inserting the sexual organ.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or impossible condition.

(b) rape,

Around 08:00 on October 1, 2016, the Defendant saw the victim at the right place of the above victim, and tried to engage in a sexual intercourse with the victim by reporting him/her, without clothes, to have sexual intercourse with him/her, and by inserting him/her up to the right angle. The victim tried to engage in a sexual intercourse with the following: (a) one arms was attached to his/her body in the process of facing his/her arms; (b) the victim saw him/her as "ma" to restrain him/her from escaping out to the face; (c) the Defendant saw him/her as "ma," but the Defendant saw him/her as "ma," but he/she divided his/her hands into the body of the victim with his/her hands, pressures his/her resistance, and inserted his/her sexual organ into the part of the victim

Accordingly, the Defendant raped the victim by assault.

2. Summary of the defendant and his defense counsel

A. As to quasi-rape

At around 03:00 on October 1, 2016, the victim did not have sexual intercourse with the victim in a state of mental or physical disability or failing to resist, and the Defendant did not have sexual intercourse with the victim by taking advantage of such state.

B. As to rape

around 08:00 on October 1, 2016, the Defendant was sexual intercourse under mutual agreement with the victim and did not forcibly engage in sexual intercourse by suppressing the victim’s resistance through assault and intimidation.

3. Determination

A. Relevant legal principles

1) The establishment of a crime in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that the defendant’s assertion, defense, and defense are inconsistent or unreasonable, it should be determined in the interests of the defendant even if there are suspicions of guilt, such as the defendant’s assertion, defense, and dismissal (see, e.g., Supreme Court Decisions 2012Do3722, Sept. 26, 2013; 2010Do1487, Apr. 28, 2011). Meanwhile, in order to establish a crime of rape, the offender’s assault and intimidation should be limited to the extent that the victim’s resistance or threat was impossible or considerably difficult, and whether such assault and intimidation was likely to make it impossible or considerably difficult, the determination should be made by comprehensively taking into account not only the content and degree of such assault and intimidation, circumstances leading up to the victim’s exercise and force, and all circumstances surrounding the victim’s 2817.

2) In particular, where the Defendant consistently denies the facts charged and the victim’s statement is practically the only direct evidence consistent with the facts charged in the record, in order to find the Defendant guilty on the basis of the victim’s statement, there is a demand for high probative value so as to have little doubt as to the authenticity and accuracy of the statement. Determination of whether there is such probative value should take into account the reasonableness, consistency, objective reasonableness, etc. of the victim’s statement (see, e.g., Supreme Court Decision 2011Do16413, May 10, 2012).

B. Determination on the quasi-rape

According to each image of CCTV video files (Evidence No. 14) and video CD (Evidence No. 14) respectively, the defendant stated that "the victim was under a state of drinking significantly." On October 1, 2016, the defendant went to the residence of the victim of the new wall (hereinafter referred to as "the studio of this case") along with the victim, and was off the clothes to have sexual intercourse with the victim, but he was able to wait for the victim's face and see 10 seconds because the victim was locked, the victim was under a bad condition due to no response or movement (Evidence No. 14), and the victim was thought to have been locked (Evidence No. 56, 224, 284). The defendant stated that "the victim was under a state of drinking notions with the victim, and whether the victim was under a state of drinking the same day."

However, comprehensively taking account of the following facts acknowledged by the evidence duly adopted and examined by this court and the circumstances revealed from the above facts, the evidence alone presented by the prosecutor is difficult to deem that the Defendant was sexual intercourse with the victim by inserting his sexual organ into the victim’s sexual organ at around 03:00 on October 1, 2016 by taking advantage of the victim’s state of avoiding resistance.

1) Among the evidence submitted by the prosecutor, the evidence that seems to correspond to this part of the facts charged lies in the victim's statement, the victim's and the defendant'sF message (hereinafter referred to as "the message"), telephone conversations between the victim and the defendant, and the victim's male-friendly appearance G.

2) First, it is difficult to view that the victim’s full-time statement, which is the most important evidence to acknowledge this part of the facts charged, is credibility because it is not consistent with other objective circumstances and is not consistent with the following.

I stated that the victim made a statement at night that he had a sex relationship. I would like to say that I would like to say that I would like to say that I would like to say that I would like to see that I would like to see why I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to 'I would like to see that I would like to 'I would like to see that I would like to 'I would like to see'.'.

B) Furthermore, on October 1, 2016, the victim was wearing a physiological belt on the birth of October 1, 2016 (Evidence No. 1: 229 pages of evidence, No. 17 pages of witness D), and on the part of the victim’s statement that he attempted to enforce the Defendant when considering the victim’s physical condition, obsciation, obsciation, and ex post facto cition, it is difficult to believe that the victim made a statement. Furthermore, in relation to the sexual intercourse (Rape), the victim stated that he/she had a negative part of his/her sexual intercourse (Rape) and kept the Defendant’s semen as evidence, and that the suspension should be left as evidence. However, in relation to the sexual relationship (rape No. 4, 13 pages of witness D recording) of a new wall, the victim did not make any statement as to what physical change or sciating it was.

C) It is difficult to see that the circumstances that the victim had been divided into dialogues on the “day of the new wall” between the Defendant and the Defendant are consistent with the victim’s full statement. In other words, while the victim clearly stated from the Defendant that there was sexual intercourse that the victim did not want to do so, it cannot be found that the victim immediately raised an objection, i.e., demanded immediate eviction, while raising an objection, and rather, there was no circumstance in which the victim requested immediate eviction from the Defendant. Rather, the fact that the victim had been in the studio of this case with the Defendant, without putting clothes until 09:54 (No. 1st page of evidence record 213) is not easy

D) Unlike the victim, H stated that “I had slick slick slick slick and slick slick slick slick without any slick slick slick slick slick slick slick slick slick slick slick sl.” (Evidence No.

3) Meanwhile, it is difficult to view that the Defendant committed a crime related to quasi-rape to the victim in a message or telephone conversation with the victim.

A) On October 1, 2016, from around 19:58, the victim sent a message to the effect that “I will report the Defendant from around 19:58,” and that “I would like to do so, I would like to see that I would see that I would see, e.g., that I would see, e., that I would see, e.g., that I would see, e., that I would see, e.g., that I would see (Evidence No. 1:43-49, Evidence No. 32-34-1).”

However, at around 20:36 October 1, 2016, the Defendant sent a message to the victim, stating that “the Defendant was aware of it, so that he was locked, and that he was locked, that is, he did not go so, and that he was going to do so.” (No. 32 pages of evidence records) and on October 3, 2016, the Defendant expressed his intention that even if the victim’s reply is against the victim, he would have to file a complaint against the victim (No. 47 pages of evidence records, No. 2 evidence records No. 333 pages of evidence records).

B) Examining the overall contents of the message sent and received by the victim and the defendant, it is difficult to see that the Defendant was the starting point of and recognizing the sexual intercourse with the new wall, and on October 1, 2016, the Defendant appears to have given the victim answers “not to be a control, but a sexual intercourse with the victim (Evidence No. 1: 43, No. 2, and No. 32).” Meanwhile, the victim appears to have given the victim an opportunity to report to an investigative agency on the legal resolution, etc. (Evidence No. 39, No. 35 of the Evidence No. 4 of the Evidence No. 1) in telephone conversation with the Defendant, and the Defendant appears to have given the victim’s answer that the victim received the victim’s book in substitution of the victim’s book to take advantage of the victim’s appraisal.

C) In fact, the Defendant divided into H and dialogue to the effect that he ought to see the situation in which he is aware of the victim’s identity and to file a petition (Evidence No. 109, 113, 114, 116, 122). In the first police investigation, the Defendant stated that “I would like to avoid the situation in which he is too unsatisfed at the time, and I would like to think that I would have to go against the situation in which he is too unsatisfed (Evidence No. 1, 61).”

4) G’s full-time statement is based on the content of the victim’s previous statements, and also is insufficient to prove this part of the facts charged.

A) At this court, G stated in this court that "the defendant is guilty" among the telephone conversations between the defendant and the defendant, and "I am guilty of drinking," "I am guilty of drinking," and according to G and the defendant's telephone conversations (No. 5), it is recognized that the defendant mentioned "I am out of drinking," in G and telephone conversations between "I am guilty of drinking," and "I am guilty of drinking. I am guilty of the crime."

B) However, examining the contents of the above telephone conversation, it is difficult to view that the Defendant was able to view that all the facts constituting the crime related to quasi-rape, and there is no mentioning of specific facts, and the Defendant appears to have the intent of sending the victim and the Defendant with intent to commit an intentional crime and to deliver his sexual intercourse (the point of quasi-rape) with the victim at the time of the above telephone conversation. Moreover, G was able to take advantage of the sexual intercourse (the point of rape) with the victim at the time of the above telephone conversation, and it was difficult to hear the sexual intercourse (the point of rape). As seen earlier, the Defendant sent the victim a message denying the sexual intercourse with the victim. The Defendant had the sexual intercourse inappropriate for the victim’s sexual intercourse with the victim even before the night, and G was also subject to apology with the victim, and it cannot be ruled out that there was a possibility that new sexual intercourse might have been sexual intercourse with the victim.

C) Furthermore, around October 1, 2016, around 23:46, the victim sent the Defendant a message, “Stop the phone 070 to 070? To be asked by male-parents, I am to see” (Evidence No. 1, No. 46, No. 2, No. 33 of the steam Records), and as seen earlier, the Defendant, regardless of the facts, accepted all books of the victim before that time in order to correct the victim’s petition, and the delivery of the intention with G also seems to be an act in accordance with the purpose of enabling the victim to file a petition.

C. Determination on rape

From the investigative agency to this court, the Defendant consistently denies the victim’s resistance and forced sexual intercourse through assault or intimidation, and denies the facts charged regarding rape. Among the evidence corresponding to this part of the facts charged, the remaining evidence except the victim’s statement is based on the victim’s statement or by itself is insufficient to view it as evidence with independent probative value, and thus, the victim’s statement is virtually flexible. Therefore, the credibility of the victim’s statement may be the most controversial issue as to whether it is proven in this part of the facts charged.

However, comprehensively taking account of the following facts acknowledged by the evidence duly adopted and examined by this court and the circumstances revealed from the above facts, it is difficult to readily conclude that the probative value of the victim’s statement to the extent that there is no doubt about the authenticity and accuracy of the victim’s statement. Therefore, it is difficult to deem that the Defendant, around October 1, 2016, had sexual intercourse with the victim as forced by assault or intimidation to the extent that it is impossible or considerably difficult to resist the victim or make it difficult for the victim to resist, and there is no other evidence to acknowledge this otherwise.

1) The victim stated in the police that the defendant was not forced or forced to do so by force (which means 30 pages of evidence record 1: 5 pages) and stated that there was no fact that the defendant was forced or threatened (which means 5 pages of witnessD), and even if examining the overall statement of the victim, it is clear that the defendant did not have typical types of violence or intimidation. Ultimately, even if the victim’s statement was examined, it is clear that the defendant did not have typical types of violence or intimidation. Ultimately, it is difficult for the victim to resist the victim as the exercise of tangible power. Accordingly, the victim’s statement related to this is unreasonable and correct as follows.

가) 피해자는 경찰 진술서에 준강간의 점에 관하여는 '성폭행'이라고 표현한 반면 강간의 점에 관하여는 '싫다는 의사표명에도 성적인 행위를 가했다'는 정도만 기재하였고(증거기록 1권 6쪽), 최초 경찰조사에서 "제 팔 한쪽이 제 몸에 깔려 엎드린 상태였고 제 등 위에서 피고인이 올라타 움직이지 못하게 한 상태라 몸으로 어떻게 할 수 있는 상황이 아니었습니다. 다른 한 쪽 팔로는 그 사람을 제지하기 위해 허우적댔던 것도 기억납니다."라고 진술하였다(증거기록 1권 29쪽). 이후 피해자는 피고인과의 대질조사에서 피고인이 '피해자가 삽입이 잘 되도록 허리를 숙이는 자세를 잡아줬고 성관계 도중 깍지를 끼면서 손을 잡기도 했다'는 취지로 진술하자 "피고인이 제가 엎드려져 있었을 때 허리를 잡으면서 ... 피고인이 삽입을 하려고 할 때 저는 허리가 잡혀있는 상태였습니다. 제가 어깨가 눌려있어서 팔을 빼려고 하다가 어깨가 삐끗하면서 어깨가 내려가게 된 것입니다. 뒤쪽으로 손을 뻗었는데 피고인이 그 손을 잡은 것입니다.", "제 손이 제 등 쪽으로 꺾였고 그 손을 깍지를 끼고 있었던 것 같습니다."라고 진술하였는바(증거 기록 1권 229, 232쪽), 피해자는 피고인이 '등 위에 올라탔다'는 진술대신 '허리가 잡혔다'고 진술하는 한편 '피고인이 자신의 손을 잡아 깍지를 꼈다'는 진술을 추가하는 등 피해자가 경찰조사 과정에서 '항거불능의 폭행'에 관하여 일관된 진술을 하였다고 보기 어렵다. 피해자는 이 법정에서도 피고인이 등 위에 올라탔다고 진술하였다가(증인 D 녹취서 4쪽) "몸으로 눌러서 깔렸다는 것을 말씀드리고 싶은 게 아니라, 아예 이렇게 눌렀다는 걸 말씀드린 게 아니라 제 위에서 저를 이렇게 잡고 있었다고요."라고 하면서 피고인이 자신의 허리를 잡았다는 취지로 진술하여(증인 D 녹취서 21쪽), 피고인의 유형력의 행사에 관하여 피고인이 등 위에 올라탔다는 진술을 피고인이 손으로 허리를 잡았다는 취지의 진술로 번복하였다.

In addition, after the non-prosecution disposition was taken on March 8, 2017, the victim was stated as follows: the victim's body led the victim to enjoy the victim's body on his own, and the victim's left arm's body was prevented from leaving the victim's left arm's body. At the time, the victim stated as follows: "The victim's left arm's body between the defendant's body and the kneel knee knee knee knee kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne k kne kne kne kne.

B) The victim asserted that he was forced to knee with kned by the Defendant by force, and that he was aware of any part of his arms, “I would like to see it well. I would like to see that it would be the pelle side if I would like to predict it. I would like to say it is difficult to say it accurately rather than memory. In light of the victim’s statement, I did not properly explain the process of sexual relationship formed by a type of force in which it is impossible to resist, while emphasizing that circumstances inconsistent with the victim’s assertion are not memory or avoid a specific and definite statement. The victim stated that the victim stated that “the statement or conversation he was made by the Defendant,” but it is difficult to have the specific and clear explanation that the victim did not have the ability to resist with the Defendant’s exercise of the right to resist (Evidence 1:226, 230).

2) It is difficult to view that the statement on the grounds of the exercise of tangible power held by the victim in the course of rape and the grounds for the hole and hole generated by the victim is objectively reasonable.

A) As seen earlier, the victim stated that he did not state that he was able to say that he was able to say that he was able to carry the victim's "loss" in the initial police investigation, and that he was able to carry the victim's "loss" in the process of the physical investigation, and that he did not state that he was able to carry the "on the part of the victim's" or "on the part of the complaint, petition, etc." only after the disposition of non-prosecution was taken, the victim did not state that he was able to carry on the part of the defendant. The victim did not state any statement about 'in the process of the police investigation before the disposition of non-prosecution was taken. The victim did not state any statement about 'heat' before the disposition of non-prosecution was taken, the victim's fixed sum was suspended (one right 41 pages of evidence record), the victim and the defendant sent and received the message (one right 41 pages of evidence record, one right 239 pages of evidence record), and the victim and the defendant's telephone tape recording (2) was not written on July 18, 20.

B) The victim also examined the defendant's cell phone in order to find additional evidence by submitting the fixed amount of the defendant as evidence and to find additional evidence (one right 29 pages of evidence records). The victim notified her friendly I of the fact of damage and stated that she did not confirm the physical trace of rape (13 pages of witness D), while G stated in the statement that she had "victim's left hand" (2 right 43 pages of evidence record) but the victim stated that she was difficult to find the left hand in this court, but the victim stated that she was unable to find the hole without her arms, but the victim stated that she made a statement that she had been in charge of the first 4 pages of the interview (14 pages of witness evidence) and that she made a statement that she had been in charge of the police investigation at all times after she discovered that she had been in charge of the first dynasium and that she had been in charge of the interview (14 pages of the interview, but the victim found that she had been in front of the Seoul police station.

C) Furthermore, in this court’s testimony, the victim made it difficult to say that it had been made at this time, and that it was made at this time," and if the victim submitted it as evidence, it would be difficult to confident that it was made at that time and would be a false testimony because it would be the same as that of the victim’s testimony, and even according to the victim’s above statement, it is difficult to conclude that even if the victim’s statement was made, it was made by the Defendant that the hole claimed by the victim was made (On the other hand, it is difficult to see that the expression “a even even if it was a result of suicide” is compatible with the tangible ability of the Defendant to resist that the Defendant was unable to resist).

3) The actions that the victim took immediately after the sexual intercourse showed that it is difficult to see that the victim had been forcedly affected by sexual assault and had a sliffic or sliffic, or had a mental depression.

A) It is recognized that the victim sent a message to the J on October 1, 2016 (Evidence Record 1: 200, 201 pages) as follows.

피해자(07:34) : ㅋㅋㅋㅋㅋ, 언니왕 미안, 저 기억이없어요J(08:38) : ㅋ ㅋㅋ 괜찮앜ㅋㅋㅋㅋㅋ, 집은 잘들어갓엉?J(08:39) : 속괜찮?피해자(08:43) : 넹 ㅌㅋㅋㅋ, 죄송해유...J(09:21) : ㅋㅋ 괜찮앜ㅋㅋㅋㅋㅋ, 담에 만낳호, 우리집에 오라할려했는데,너가 이미갓더라구 ㅠ TTTT피해자(09:52) : 언니집에서 잘껄진짜...J(09:56) : ㅋ왕???, 어제 누구랑갓엉??피해자(09:58) : 그 팀플하는분이여 ㅠ, 가다토힌 듯.....J(10:38):ㅋ,나노야,

According to the facts charged in this part, the victim and the defendant made a sexual intercourse around 08:00 on October 1, 2016, and the victim expressed that they did not refuse to do so at the time of sexual intercourse with the defendant, and that they did not do so in numerically or numerically after sexual intercourse (Evidence 1:29, 230 pages of evidence, and witnessD page 17 pages), and the victim received several messages from J even after sexual intercourse and received several messages after sexual intercourses, and it is difficult to see that there is a situation that is compatible with the victim's statement because the message was considerably ordinary and peaceful contents and is added to the message, and it is also difficult to see that the victim's cell phone F during the show of the defendant and examined its contents. In addition, these circumstances are also consistent with the victim's statement that the victim was suffering from extreme mental pain immediately after rape.

나) 위 메시지에 의하면 피해자는 적어도 2016. 10. 1. 07:34경에는 이미 잠에서 깐 사실을 알 수 있고, 한편 피해자와 피고인 모두 피해자가 피고인보다 먼저 잠에서 깼고 나체 상태였는데 '새벽의 일'에 관하여 대화를 나누다가 성관계를 가졌다고 진술하고 있는바, 피해자는 홀로 잠에서 깬 상태에서 J에게 메시지를 보낸 다음 성관계 이전까지 적어도 약 20분 가량 속옷이나 겉옷을 찾아 입지 않은 채 나체 상태로 있었음을 알 수 있다. 또한 피고인은 2016. 10. 1. 09:54경 이 사건 원룸에서 나왔고(증거기록 1권 213쪽) 피해자와 피고인 모두 그 무렵까지 피해자가 나체 상태에 있었다고 진술하고 있는바, 피해자는 성관계 이후에도 약 1시간 50분 가량 옷을 입지 않은 사실을 알 수 있다. 이에 대하여 피해자는 피고인에게 알몸을 보여주기 싫고 너무 수치스러워 옷을 찾아 입지 못하였다고 진술하나(증인 D 녹취서 17쪽), J에게 메시지를 전송하고 피해자가 샤워하는 동안 피고인의 정액을 닦은 휴지를 확보하며 피고인의 휴대전화를 열어보았음에도 자신이 거주하는 이 사건 원룸에서 속옷마저 찾아 입지 못하였다는 진술은 납득하기 어렵다.

C) The victim stated that "the defendant sent a shower after the sex relationship, and again comes to the original room of this case because "I want to come to the original room of this case" (Evidence 1:29,30 pages). However, as seen earlier, the victim and the defendant showed about about 1:50 minutes and 50 minutes of the original room of this case after the sex relationship, and the victim did not demand the eviction for a considerable period of time." Meanwhile, the victim stated that "the victim did not have the main body until the defendant got out and continue to see it" (Evidence 2:29 pages of the evidence record), but the above statement is inconsistent with not only reasonable but also with other statements of the victim.

Rather, the defendant made a relatively consistent statement that the defendant was unable to take advantage of the victim's body after the shower's body, so it was too difficult for the victim to take advantage of the victim's body, and that the victim's statement and the victim's statement were unsatisfyed, 'I am unsatisfy', 'I amsatfy', 'I amfy', 'I amfy', 'I amfy', 'I amfy', 'I amfy', 'I amfy', 'I amfy', 'I amfy, 'I amfy', 'I amfy', 'I amfy', 'I amfy', 'I amfy', 'I am unsat', 'I amfy', and 28 amfy the defendant's statement.

D) On October 1, 2016, around 09:54, the victim stated that the Defendant her studio in the instant case was dried with mental pain (at around 30 pages of evidence record 1:30), the victim sent a message to the effect that “the Defendant had her fluence as a woman,” from October 19:58, 2016 (at around 43 pages of evidence record, 2:32 pages of evidence record). On the other hand, at around 10, 11:59, the victim changed the K propy and added pictures to K on the same day (at around 21:19, 199, 196 pages of evidence record).

4) The victim’s objection against the Defendant after sexual intercourse, and the background leading up to the report, the background leading up to the victim’s explanation to G, and the victim’s explanation as to the process do not coincide with the objective situation.

A) At the time of October 1, 2016, the victim was satisfing the body of the defendant in this case, and there was no yellow satisfy in this case’s studio (the 8 pages of witness D recording) but on the ground that there was a view that the evidence should be secured (the 8 pages of witness D recording), the victim satisfyed the fixed amount of the defendant due to the suspension of the defendant’s show that he was placed in the slowly (the 4 pages of witness D recording) and was also examined the mobile phone of the defendant (the 1st page of evidence recording 29 pages), but the victim did not immediately report it, and on October 4, 2016, the victim reported it first at around 17:40 (the 1st page of evidence record).

During that period, from October 1, 2016, the victim mentioned not only that he/she provided multiple messages to the Defendant and provided a telephone phone number of the Defendant to the Defendant, but also that he/she directly provided the Defendant with his/her phone number on October 24, 2016 (No. 35 No. 6, 7 pages of the evidence list) that he/she would be free from damage to the Defendant’s her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her hers her hers hers hers hers hers hers hers hers hers her hers hers hers hers hers hers her hers her hers hers her her hers hers her her.

B) On October 2, 2016, the victim knew that G would be made to the Defendant around 23:46 on October 2, 2016 (Evidence No. 46, Evidence No. 2:33) G and the Defendant made a telephone call around that time (Evidence No. 5). G and the Defendant heard that “A victim’s 's 's 's 's 's ' was’ during this court call with the victim’ was made during this court, and made a statement to the Defendant by asking the Defendant’s telephone number (the witness G record No. 1, 3, 4 pages). As such, I cannot exclude the possibility that the victim and the Defendant’s 's 's 's 's 's 's 's 's 's 's 's 's 's 's ' was made’ with the victim for a considerable period of time, and even if the victim and the Defendant’s 's 's 's 's 's 's ' 's 's 's 's 's 's 's '.

C) From this court on October 2, 2016, G testified that the Defendant had not been aware of the sexual intercourse at the time of phone call, and that on October 7, 2016, at the opening of the military unit, G asked the victim to be heard and reported to the police. (C) According to the above statement, the victim appears to have concealed the fact that the victim reported the sexual intercourse or the sexual intercourse with G for a considerable period of time. The victim sent the Defendant a “legal resolution” but did not report it to the effect that the Defendant had already completed the report from October 3, 2016 (Evidence No. 1, No. 49, No. 2, No. 344), No. 1044, No. 1016, Oct. 4, 2016, 2014).

D) When the Defendant takes part in the same way as the victim after the sex relationship, the Defendant stated that “the victim would not have known that it would be ‘the victim would not come to know' (Evidence No. 57 pages), and the victim stated that “the victim would have expressed that he would not speak to any other person after the sex relationship, because it would have been the same with all the people in the drinking place, and that the victim would not speak to the other person after the sex relationship.” (No. 1st 232 pages of the steam record), it is difficult to expect that the victim would not know the fact if the Defendant was rape, and it would be difficult to expect that the victim would not have known the outside. On the other hand, the victim would not appear to have known that the victim would have been sexually aware of the fact that it is difficult to inform the Defendant of the fact that the Defendant would have been sexually known to him of the victim’s opinion and the Defendant’s sexual assault at least 2016 and 108:00 of the case.

E) The victim stated that one of the acts of collecting evidence in this Court appears to be sufficient to prove the fact of damage caused by the mental suffering of the victim (in the witness DNA recording page 15), but even according to the victim's statement as seen earlier, the victim opened the Defendant's mobile phone F, opened the Defendant's mobile phone without abandoning the suspension of washing the Defendant's fixed amount, and continuously received and recorded the message on this case with the Defendant, and made a telephone conversation with the Defendant in the presence of I. Rather, the victim seems to have made considerable efforts to collect evidence after sexual intercourse.

5) 피해자와 피고인이 주고받은 메시지와 전화통화 내용을 보더라도 피고인은 2016. 10. 1. 20:47경 피해자에게 "너가 수치스럽고 울고 기분 나쁜 거였으면, 어찌됐든 내가 잘못한 게 맞아"라는 메시지를 보내는 등(증거기록 1권 43쪽, 증거기록 2권 32쪽) 피해자의 감정을 누그러뜨리기 위하여 사과의 뜻을 전달한 것으로 보이지만, 그 내용 전반을 보면 피고인이 도의적인 사과를 뛰어넘어 폭행, 협박으로 피해자의 반항을 억압한 다음 간음을 행하였다는 사실까지 모두 시인하는 취지라고 보기는 어렵다.

4. Conclusion

Thus, since the facts charged in this case concerning the charge of quasi-rape and rape against the defendant constitute a case where there is no proof of crime, the court below acquitted the defendant pursuant to the latter part of Article 325 of the Criminal Procedure Act and decided to publish the summary of this judgment in accordance with the main sentence of Article 58(2) of the Criminal Act.

Judges

The presiding judge shall be changed.

Judges Tae-young

Judicial Chief Judge;

Note tin

1) When comparing the message received and sent by the Defendant and the victim several times, the part of the message sent by the Defendant to the former, “I am scam, scam, scam, scam, and scam, I am scam, so I am scam. I am scam, and I am scam scam, so I am scam, so I am scam, so I am scam, so I am scam, so I am scam, so I am scam, so I am scam, so I am

2) The phrase " October 02, 2015" listed in subparagraph 5 of the evidence is clear that it is a clerical error in the words " October 02, 2016".

3) 피해자는 피고인과 전화통화를 하면서 그 메시지 내용 중 '피해자가 술을 잘 마신다', '피해자가 어리긴 어리다'는 내용을 보았고 위 내용에 상당히 기분이 나빴다는 취지로 책망하였다(증거기록 2권 39쪽, 증거목록 순번 35번 4쪽).

4) The date and time of telephone conversations 2:36 of evidence records and 35 of evidence list Nos. 35 are indicated as “O. 1, 2016.” However, the victim sent a message to the Defendant around October 2, 2016 and sent a certain phone number to the victim around 20:37 of the same day (the steam No. 1: 45 pages, No. 2:33 pages) and the victim submitted a recording file to the police (the date when the case occurred). Further, the victim and the Defendant’s message content (the part related to the phone of the victim to the Defendant’s female-friendly Gu, No. 1: 144, No. 145 pages) appears to have existed immediately after October 26, 2016.

5) The victim made a statement that he had a fluent contact with I by the police that he had a fluent relationship with I (Evidence No. 1, 30 pages of evidence).

참조조문

-형법 제58조 제2항

-형사소송법 제325조

참조판례

-대법원 2011. 4. 28. 선고 2010도14487 판결

-대법원 2013. 9. 26. 선고 2012도3722 판결

-대법원 2015.8.27.선고 2014도8722 판결

유사 판례

-서울고등법원 2020.04.24 2019노2852

-서울서부지방법원 2019.11.28. 선고 2018고합344 판결

-서울고등법원 2020.6.4. 선고 2019노2782 판결

-수원지방법원 2017.08.11 2016노3841

-광주고등법원 2020.2.13. 선고 2019노351 판결