2017Ma1079 Quasi-rape

A

Dogyoung (prosecution), Dogs (public trial)

Law Firm Thai, Law Firm

Attorney Kim Young-young, Counsel for the plaintiff-appellant

October 10, 2018

The defendant shall be innocent.

1. Summary of the facts charged

On April 1, 2017, the Defendant: (a) performed drinking at a restaurant near the fish driving school (24 years old); (b) performed drinking at a restaurant near the fish driving school; and (c) moved from the Cju shop located in Gangnam-gu Seoul Metropolitan Government to the D hotel in Gangnam-gu, Seoul, while drinking together with a male and female entertainment loan. The Defendant, around 01:00 to 01:51, on April 2, 2017, 201, she engaged in sexual intercourse by cutting off the clothes of 000, the state of non-performance of drinking in the above hotel E, and inserting his or her sexual organ into the sexual organ.

2. Determination

A. Relevant legal principles

The crime of quasi-rape under Article 299 of the Criminal Act is established by having sexual intercourse with a person's mental or physical condition or the state of non-performance. In order to constitute the crime of quasi-rape, the crime of quasi-rape must not only require the victim's state of mental or physical condition or of non-performance, but also recognize the defendant as a subjective constituent element of the crime of quasi-rape with the awareness of

The facts charged in a criminal trial must be proved by the prosecutor, and the judge should be convicted with evidence of probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, an explanation is given.

Even if there is a doubt that the defendant is guilty, the interest of the defendant is bound to be determined (see Supreme Court Decision 2005Do767 delivered on April 15, 2005).

B. In the instant case

1) According to the statement 000, there is doubt that the Defendant is not sexual intercourse with 000 using that 000 was under the influence of alcohol, and the Defendant was under the influence of alcohol. 000 stated to the effect that: (a) the instant court and the police made a statement to the effect that: (b) the Defendant had been engaged in an act of inserting the sexual organ when she had no memory, and there was no mind that she had a mind; (c) 000 is two or more diseases with the Defendant, both male and female loans, and the Defendant was expected to have been under the wall of the building; and (d) the Defendant was under the influence of alcohol at the time of the instant case in light of the content of the F message sent by the Defendant to 000 after the instant case; and (d) the Defendant was under the influence of the police around 200,000 on the day when the case was known in the course of employing the English instructor; and (e) there was no reason to see that the Defendant reported on the date of the report.

2) However, in light of the evidence duly adopted and examined by the court and the following facts and circumstances revealed by the records of this case, it is difficult to believe that the statements made by this court and the police are in the same condition as they are, and the other evidences presented by the prosecutor alone, are insufficient to deem that the 000 at the time of this case was in the state of mental disorder or non-performance, or that the defendant had sexual intercourse with 000 with the intent to quasi-rape by recognizing the status of 000, or that the defendant had sexual intercourse with 000 with the intent to use it, and there is no other evidence to acknowledge this otherwise.

A) Examining the 000 movement immediately before the instant case, which can be seen as CCTV images, it is difficult to determine that 000 was under the influence of alcohol to the extent that she lost the spirit at the time of the instant case.

000은 2018. 4. 2. 00:52경 C주점에서 나올 때, 01:01경 택시에서 내릴 때, 01:03경 호텔 방으로 들어갈 때 다른 사람의 도움 없이 보행하는 데 어려움 없는 모습이다. 000은 호텔 카운터에서 피고인이 계산을 마치는 모습을 보고 바로 피고인을 뒤따라 이동하고, 피고인보다 먼저 방실에 들어가는 등 인지력에도 문제가 없어 보인다. 000이 2018. 4. 2. 06:00경 성폭력 응급키트 검사로 채취한 혈액의 혈중알코올농도도 0.035%여서 2018. 4. 2. 01:00경 당시 000이 멀쩡해 보이는 외양에도 불구하고, 정신을 잃을 만큼 만취한 상태였다고 인정하기에는 낮은 수치다.

B) The statement of 000 related to the degree of drinking in 000 generally changed the contents that are difficult to confuse. 000, the police stated that 2000 alcohol is breath, and the police stated that 8 to 900 alcohol is breath, and this court stated that 8 to 90 alcohol is breath, and there is a big difference even when considering the limit of memory. With regard to the point of time when 000 people are not memory, the police stated that her male loan was not memory after the Defendant sent her home address. In this court, 1 to 2 hours after the C week, and the toilet was changed to her no memory, such as the male loan.

However, although the above police statement of 000 was made immediately after the instant case, it is inconsistent with objective circumstances and other statements of 000. The time when 000 sent the Defendant’s home address F to F is 22:45 (in the investigation record 34 pages), and it was from 22:48 (in the case of the commencement of drinking together with entertainment loans). As 22:45 (No. 5 of the above evidence 5), the entertainment loan must drink alcohol prior to the clerical error in order to reach a drinking state of 00, around 22:45. However, the above court and the police stated to the effect that 000 drinking alcohol with the above police statement, which is inconsistent with the police statement.

다) 000은 자신의 항거불능 여부와 관련된 F 대화내역, 부재중 전화 내역 등 증거 제출 과정에서 다소 이해하기 어려운 태도를 보였다. 000의 부모는 000 과연락이 될 때까지 F 메시지나 부재중 전화를 남겼을 것으로 보이고, 000이 이 사건 당시까지 부모의 연락을 받을 수 없었다는 사정은 000의 항거불능 여부를 인정하는 간접사실이 된다. 그런데 000은 경찰에서 조사를 받은 날인 2017. 4. 6. F을 새로 가입하였고, 이로 인하여 000의 핸드폰으로는 이전의 F 대화내역을 확인할 수 없게 되었다. 000은 2017. 4. 9. 부친과의 F 대화 내용이 담긴 자신의 핸드폰 캡처 화면을 출력하여 제출하였으나 위 캡처 화면으로는 2017. 4. 1. 23:37 이후 대화내역을 확인할 수 없다. 000은 이 법정에서 이 사건이 있은 후 핸드폰 기기변경을 한 사실이 없음에도 핸드폰이 부서져서 바꿨기 때문에 자신에게 통화내역이나 F 내역이 남아 있지 않다.고 진술하였으며(증인 000에 대한 증인신문 녹취서 29, 31쪽), 부친의 핸드폰에 남아 있을 자료도 기기 교체를 이유로 제출되지 아니하였다. 결국 검사가 제출한 증거만으로는 2017. 4. 1. 23:58부터 2017. 4. 2. 04:17까지 000과 000의 부모 사이에 어떠한 연락이 오갔는지 확인할 수 없는 상황이다.

D) Under the consent of this court and investigative agency, the Defendant turned to a hotel with the rest of 000. At the same time, the Defendant brought to a hotel with the rest of her clothes. The Defendant brought to 000 and tried to put her to go away from the rest of the hotel, and to put her to go off, but did not go out. Then, 00 when she put her to go with the sound of 000 with her hand and her face, she stopped her face with her face, and her face to go to her face with her face of her face of her face of her face of her face, and her face to go to her face to her face of her face of her face of her face of her face of her face of her face of her face of her face of face of her face of her face

Even if the defendant's Y-STR is detected from his sexual content (Evidence 3), it is impossible to distinguish the fixed amount included in the quality content of 000 from that of a man who has sexual intercourse with 000 on April 1, 2018 (Evidence 4). However, it is impossible to distinguish between 00 and 000 on April 1, 2018 (Evidence 4). However, at this court, 000 tried to be inserted by the defendant at the time of the instant case.It was written by the defendant's statement that "I am? I am? I am? I am? I am? I am? I am the defendant's statement that the defendant did not insert his sexual organ without inserting his sexual organ (No. 16 pages of the witness examination record as to 000).

The Defendant entered the hotel room together with 000, and returned to the hotel and the Red Sea Corpion. However, considering that 000 between the Defendant and the Defendant’s occupation was likely to escape or request rescue by driving the mind, and in particular, it was difficult to move to the room until the time when 000 entered the room, it is difficult to readily understand that a person with the criminal intent to commit quasi-rape did not have to deem it necessary to engage in sexual intercourse with the time when 1 to 2 minutes left the room or when she left the room and when it is difficult to view it as necessary to engage in sexual intercourse.

In light of the fact that the Defendant, while suffering from 000, opened softs, putting them together as Lone Star, etc. (24 pages of investigation records) and the Defendant committed sexual intercourse with disregarding his intention of refusal of 000, neglected 000 after committing the crime, and did not have any reasonable ground to adjust the clothes of 000, it is an exceptional case in view of the fact that the Defendant is also deemed to have committed sexual intercourse with another person by taking advantage of one’s condition of failing to resist.

3. Conclusion

Since the facts charged constitute a case where there is no proof of crime, the latter part of Article 325 of the Criminal Procedure Act

not guilty.

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins