2012Gohap288 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Act on Special Cases concerning the Punishment, etc. of Sexual Crimes,

(Indecent act by blood relation), punishment of sexual crime, etc.

Quasi-rape in the relation of relatives (quasi-rape in the relation of relatives)

A

Gambane (prosecutions) and courtrooms (public trial)

Law Firm B, Attorney C

January 17, 2013

A defendant shall be punished by imprisonment for not less than three years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.The charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the charges in this case and the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (rape in relation of relatives) shall be acquitted.

Criminal History Office

The defendant is a person who operates 'E' 'E' 'E' on the 1st floor of the Changwon-si D Building in Changwon-si, and is the victim F (n, 19 years of age), and the victim was working as an employee from October 201 to the above Kaf.

Around 22:30 on June 27, 2012, the Defendant: (a) 22:30, the Defendant got up to the office in the Kafa in the future of the victim who was preparing to leave the above Kafa; (b) kiding the victim into the office of the Kafa; (c) her knee knee knee kne kne kne kne kne kne kne kne kne knee the victim so that the Defendant could not resist the two arms of the victim by force; (d) putting his hand into the kne kne kne in the kne kne of the victim; (e) putting the victim on the kne kne k, laid the victim on the kne kne k, laid off the victim’s will and pan; and (e) putting the victim’s finger off

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F;

1. Second prosecutor's protocol of examination of the accused;

1. Determination of the Defendant and the defense counsel’s assertion of an investigation report (recogncy analysis of national and aquatic genes)

1. Summary of the assertion

Although the defendant met the victim's chest at the time and place on which the crime was recorded, and put the victim's fingers into the part of the victim, it does not reach sexual intercourse. Since the act recognized by the defendant was committed by the victim first harshly, at least the victim's implied consent was given. At the time, the defendant did not assault or threaten the victim at all.

2. Determination

A. The Defendant and the defense counsel asserted that the victim’s statement has no credibility on the grounds that there are contradictory parts among the statements made by the victim or those contrary to the statements made by other witnesses. Of the circumstances pointed out by the Defendant and the defense counsel, considerable parts of the circumstances pointed out by the Defendant and the defense counsel are acceptable, and even considering the victim’s attitude to testify in this court, there are some parts that seem to change the victim’s statement due to the concealment of the matters unfavorable

B. However, in light of the following circumstances acknowledged by each evidence, it is judged that the victim's statement on this part of the facts charged is reliable.

① As to the circumstances leading up to the instant complaint, the Defendant first stated that the victim refused the victim’s request that the Defendant be able to independently support, and the victim made a statement to the effect that the victim would refuse his request. However, above all, the Defendant was able to see the victim’s knife the knife immediately after the instant complaint, and the Defendant was able to see the victim’s knife the knife and knife the knife to the police station, and then the Defendant was able to be punished against the Defendant with a firm and good faith until a considerable time after the complaint. In light of the victim’s behavior and attitude, the Defendant did not appear to have come to have come to the victim’s knife the knife at the time of the instant complaint, and the Defendant did not appear to have been aware of the victim’s knife the knife’s knife’s knife that part of the charges.

Application of Statutes

1. Article applicable to criminal facts;

Article 5(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 297 of the Criminal Act

2. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

3. Order to complete programs;

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

4. Exemption from an order for disclosure and notification;

1. Reasons for sentencing of Article 37(1) proviso and the proviso of Article 41(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (in light of the fact that the defendant is the first offender without any previous conviction and is clear of social ties, the relation between the defendant and the victim, and the circumstances of the crime in this case, etc., it is difficult to see that the defendant is in danger of recidivism of a sexual crime, and therefore, there is no special circumstance to disclose and notify personal information, and there is no such special circumstance to disclose and notify the personal information): Three years to fifteen years.

2. Application of the sentencing criteria;

[Determination of Punishment] The basic area of sex crimes, general standards, rapes (subject to at least 13 years of age), rapes by relatives [Determination of the recommended area]

[Scope of Recommendation] 5 years to 8 years

【General Exemplarys : No history of criminal punishment;

3. Determination of sentence: Imprisonment and three years and six months; and

The Defendant committed rape against the kysian victim, and even though the nature of the crime is not less severe, the Defendant did not receive a written appearance from the victim despite considerable mental suffering. Provided, That the Defendant did not have any previous criminal record, the Defendant’s age, character and conduct, motive, means and consequence of the crime, and the conditions of sentencing prescribed by Article 51 of the Criminal Act, such as the circumstances after the crime, etc., shall be determined as ordered by taking into account the following factors: the Defendant’s age, character and conduct, motive, means and consequence of the crime; and the completion

Where a conviction becomes final and conclusive on the criminal facts of this case against the defendant, the defendant is subject to registration of personal information pursuant to Article 32 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 Article 33 of

The acquittal portion

1. Facts charged;

가. 피고인은 2011. 12. 14. 22:00경 창원시 성산구 D빌딩 1층 'E' 카페에서, 피해자 F을 강제추행할 마음을 먹고 퇴근을 준비하는 피해자를 카페 내 사무실로 불렀다. 이에 피해자가 위 사무실로 들어오자, 피고인은 양손으로 피해자를 끌어안아 반항하지 못하게 한 후 그 상태로 의자에 앉으면서 자신의 무릎 위에 피해자를 앉히며 손으로 피해자의 몸을 쓰다듬고, 피해자의 옷 속으로 손을 집어넣어 가슴을 주무르고, 피해자의 옷을 걷어 올린 후 젖꼭지를 빨았다. 이로써 피고인은 친족관계에 있는 피해자를 강제추행하였다.

B. On February 11, 2012, around 23:30, the Defendant: (a) taken drinking together with the victim at Kimhae-si G, and brought the victim to a mutual incompet with one another by reporting the victim’s desire; and (b) went back to the victim with a mutual incompetence in the neighborhood. Around February 12, 2012, the Defendant, at around 01:00, went off the clothes of the victim who was not able to be able to be able to have sexual intercourse once under the influence of alcohol at a room where he cannot know the said room; and (c) the Defendant had sexual intercourse with the victim by taking advantage of the victim’s failure to resisting. Accordingly, the Defendant had sexual intercourse with his blood.

2. Summary of the defendant's assertion

In relation to the crime of indecent act by compulsion, the fact that the defendant gets the victim as seen in the date and time and place recorded in the facts charged, but this did not go against the victim's will, and there was no other indecent act like the facts charged. As to quasi-rape, the defendant has a meal with the victim and drink with the victim, but there was no other fact that the defendant had sexual intercourse with the victim.

3. Determination

A. On June 27, 2012, the victim filed a complaint regarding each of the above facts charged together with rape in the judgment. The circumstances leading up to each of the crimes of this case in which the victim stated are as follows.

① Around December 14, 2011, the victim was sexually committed by the Defendant on the same day as the facts charged, and due to the instant case, the Defendant’s wife (the victim’s mother) was unable to operate the car page without being aware of the circumstances, and continued to do so. While the Defendant had to go against the date, the Defendant’s body of the victim who is working for him/her as he/she would become the breeding victim even though he/she had to do so, and the victim was unable to file a complaint without having to file a complaint, and the victim continued to work in the car page.

② Around February 11, 2012, the Defendant and the victim were able to drink a meeting. At this time, the victim took a large number of alcohol at the Defendant’s request, and the victim took a part in the room that she thought, and the victim took part in her body, and the victim took part in her body, and sent a text message that she was raped to her male-child group who was studying in Australia at that time. However, there was no conviction that she did not file a complaint.

③ After that, on June 27, 2012, the Defendant rapeed the victim on June 27, 2012, and at that time, the Defendant stated that “the victim was “the victim was not the first time, but the sexual intercourse was made in the drunk and her motherel on that day. The time is why the victim would have become good.” The victim was aware of the previous crime of quasi-rape, and then the victim got out of the camera and immediately filed a complaint with the police. However, the victim’s statement on the facts charged of the said indecent act by compulsion and quasi-rape is difficult to believe as is for the following reasons.

① The Defendant voluntarily made a statement to the same effect as H and I made it difficult for the Defendant to drink several drinkings, and testified to the same effect as H and I. On the other hand, the victim made the victim’s statement to the extent that he is fine for 2-3 illness in the state of his own drinking to the extent that he is able to drink. However, the victim’s statement on quasi-rape is recognized to a certain extent that the victim’s sexual intercourse with the victim by making the Defendant drink much much more drinking than her own drinking together with the victim, and the Defendant, even though her memory was made, it is not clear that she was not aware of the fact that she was able to listen to the Defendant’s horse, and that it was believed that it was a fact that she had to listen to the Defendant’s horse.

② On February 11, 2012, the victim stated that he/she was aware of such fact by text message to his/her male-child district located in Australia around the fourth day of quasi-rape on February 11, 2012, but on the seventh day, male-child district was studying in Australia, and that he/she returned to Australia on January 201, 2012. At the seventh day of the trial, the victim came back to Korea upon introduction of his/her friendship, and returned to Australia on May 11, 2012. Thus, there was a male-child district in Korea around February 11, 2012, and it is evident that this is clearly contradictory to the previous statement and that it is not by mistake. Further, the witness H and I stated that the victim was able to drink with one male-child and one female-child, and that he/she was able to drink with the victim's drinking, and that the victim was not only a person who made his/her statement to the male-child family, and that he/she was not a male-child.

③ The I, an insurance solicitor, testified that the victim had been faced with the victim by making a false statement on his/her family relation when he/she purchased the insurance policy, and that the victim had been reprimanded because he/she had been unable to contact with the insurance company, and that the victim was unable to contact with I at all at the head office of the insurance company. After that, he/she asked the victim as to why he/she did so, and asked the victim was dissipated. The victim testified that he/she had been faced with the victim by making a false statement on his/her family relation when he/she purchased the insurance policy. In light of his/her attitude of testimony, etc., the I testified that the victim had been faced with the victim by making a false statement on his/her family relation.

(4) The witness H, J, and I often known the Defendant as well as the victim of the instant car page. Prior to the instant complaint, there was no act that the victim was a good victim during the victim’s work, or that there was an omission between the Defendant and the Defendant. Rather, the victim stated that the victim was a converging with the Defendant, and that the victim was a converging with the Defendant, and that the victim was able to receive meals from the Defendant.

Furthermore, H and I had been present at the carpet office twice to the extent that the victim took knee and had knee the defendant, and therefore, the witness asked the victim to "I?????????????????????????? ‘???????????????????????????????????????????????????????????????????????????????????????????????????????????????????

⑤ Even after the crime of indecent act by compulsion was committed, the victim stated that he was unable to operate the car page without the victim being aware of the circumstances, and that the victim had no other person to work in the car page despite his thought. However, according to the statement by the Defendant and H and J, in addition to the victim, the male employees or female employees were fit in the car page, and the Defendant, when employing other employees, made a statement that he was dismissed the victim, and the victim continued to work on his own. However, even if he was aware of the circumstances, it is difficult for the victim to find a person to work because it is impossible for the victim or a person to work on his own. In light of the nature and attitude of the victim revealed in this court, it is not easy for the victim to find a person to work on his own without notifying the defendant of the serious indecent act.

(6) Ultimately, the part of the victim’s statement that is inconsistent with the victim’s testimony appears to be contradictory or inconsistent with the victim’s testimony. Not only appears to have caused the victim to suffer another person at ordinary time, but also did not take all countermeasures to be taken as the victim of sexual assault even after the date the victim asserts that he was forced to engage in the initial indecent act. Rather, the victim continued to work in the car page of this case, and had two people commute to and from work with the victim, and had two people engage in conduct to the degree of unrecognity with the president or employees. Even after there was a circumstance suspected that the Defendant was forced to commit quasi-rape around February 11, 2012, the relationship between the victim and the victim appears to have no significant change with the previous. Considering the aforementioned various circumstances, it is difficult for the victim to have made a statement to the effect that it was difficult for the victim to have made a reasonable statement before 20 days prior to the victim’s statement, such as the victim’s statement, despite the victim’s statement, there was no possibility of rape between the victim and the victim.

4. Conclusion

Thus, each of the facts charged constitutes a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

The judge of the presiding judge;

Judge Cho Jong-jin

Judges Kang Jin-jin