2014Do9288 A. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.)

(b) Inducement of sexual intercourse;

(Recognized Crime : Inducement of Minors)

(c) Violation of the Act on Special Cases concerning the Punishment of Sexual Crimes;

(Cracker and photographing of cameras, etc.)

2014do167 (Joint Attachment Orders)

Persons whose attachment order is requested;

A person shall be appointed.

Defendant and the respondent for attachment order

Law Firm (LLC) B

Attorney C, D

Seoul High Court Decision 2014No230, 2014No39 (Joint) Decided July 1, 2014

November 13, 2014

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Defendant case

A. The summary of the facts charged is ① on August 14, 201: around 00: 00, the defendant commits an indecent act by force against the victim, such as putting the face of the victim (e.g., 15 years old) up to 15 years old, and going to her body within the parking lot; ② from August 14, 201 to May 18, 201: 10, the victim was indecent act by force against the victim's face at a hospital hospital hospital room; ③ the victim was 1.marbly sexual intercourse within the defendant's vehicle and 2.marbly, it is difficult for the victim to have his/her body known that he/she had sexual intercourse within the victim's age, and ④ the victim was able to have sexual intercourse within the victim's body by making his/her body known of his/her her own marbance, and then 1.m. 7marbly sexual intercourse within the victim's body, etc.

B. As to this, the court below found that the victim's statement is relatively consistent and specific, and thus high credibility, it is difficult to believe that the victim, a middle school student of 15 years of age, was sexual intercourse with the defendant who became aware of his parent and the parent's protection relation by deceiving him, and that the victim was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually.

C. However, such determination by the lower court is difficult to accept for the following reasons. (1) In a criminal trial, the prosecutor bears the burden of proving the criminal facts, and the finding of guilt ought to be based on evidence of probative value, which makes the judge sure the truth of the facts charged to the extent that there is no reasonable doubt. Therefore, inasmuch as there is no such evidence, the determination of the lower court should be favorable to the Defendant even if there is suspicion of guilt against the Defendant (see, e.g., Supreme Court Decision 2013Do9605, Feb. 13, 2014).

2) The Defendant consistently denies the entire facts charged by asserting that he did not interfere with the same crime as the facts charged against the victim’s will. In light of the record, the victim’s direct evidence that conforms to the facts charged in the instant case is practically only hearsay evidence based on the victim’s statement. However, in light of the following circumstances revealed by the record, it is difficult to believe that the victim’s statement is in good faith, and even according to all the evidence submitted by the prosecutor, it is difficult to view that each of the facts charged in the instant case was proven to the extent that there is no reasonable doubt.First, the victim visited the defendant every day during detention in another criminal case, sent multiple correspondences to the defendant, and sent an Internet letter. The victim want to love the defendant along with the only daily life of the victim, and I wish to see that the victim made a false statement or made a false statement with the victim’s statement without complying with the victim’s consent. However, I want to see the content of the victim’s statement and the content of the victim’s statement without having been made.

B) The Defendant and the victim received several text messages from the first call to the date on which the Defendant is detained. The text messages sent to the Defendant are mostly the following: (a) the Defendant, her husband and her husband, and her husband, who are called the Defendant, and the Defendant and her husband, to love with the daily life of the Defendant, and the content that they want to do so; and (b) the content that the Defendant would have expressed that the Defendant would love each text messages; and (c) the victim stated that the Defendant sent false text messages for the purpose of committing the Defendant’s misconduct. However, in light of the number of times, contents, form, etc. of sending text messages, it is difficult to believe that the victim’s statement that the Defendant sent false text messages due to coercion of the Defendant is also believed.

다 ) 위와 같은 접견민원서신, 인터넷서신이나 카카오톡 문자메시지의 내용에 비추어 보면, 피해자는 피고인을 처음 만난 순간부터 사랑의 감정을 느꼈고, 피고인이 구속된 뒤에도 그 감정은 계속된 것으로 보인다. 특히 2012. 6. 9. 자 접견민원서신에는 " 어제밤 오빠야 많이 생각나더라고여. .. 비오고 난 후의 밤향기. .. 오빠야랑 처음 한강주 차장으로 차타고 갔을 때 향기랑 같거든요. .. 또 가보구 싶다. .. 밤에. .. 비오고 난 후 에. .. 솔직히 저 오빠야한테 차탔을 때 반했어여 ~ ~ 아무한테도 뛰지 않던 심장이 오빠야 옆에 있으니까 막 뛰더라구여 ^ ^ 그래서 전 그때부터 오빠야 놓고 싶지 않았어여. . .

그래도 첨이니까 경계하곤 했었는데. .. 그래도 정말 16년 만에 뛴 심장인데. .. 첫사랑인 데. .. 그래서 지금까지두 오빠야 안 놓구 있잖아여 ^ ^ 오빠야가 뭘해도 어떤 사람이라도 앞으로도 안 놓을 거구 ~ 오빠야만 평생 영원히 사랑할 꺼예여 " 라고 적었고, 2012. 8 .

13. 에는 피고인과 만난 지 1주년이 된 것을 기념하는 내용의 접견민원서신을 작성하였는데 " 작년 8월 13일의 기억이 나네여 ^ ^ 병원에서 밤에 엄마랑 우동 먹구 엘리베이터 타구 엄마랑 빠이빠이하구 혼자 탔을 때 오빠야 처음 만났어여. 기억나져 ? ? 오빠야 그 때 모자 쓰구 크로스백 검은거 메구 7부 바지에 반팔 ! ! ! 완젼 귀여웠어여 ~ > 3 < 첨엔 그 래두 경계했지만 가면 갈수록 너무 좋아졌어여 ~ F가 오빠야 정말루 좋아한 건. .. 둘쨋날 ~ 처음으로 F가 심장이 빠르게 뛰었어여 ~ ♡ 콩닥 ! 콩닥 ! 두근두근, F는 처음이었어여 ~ 모든게 ~ 보면 가슴이 두근두근 ! 거리구 ~ 떠난다구 하면 끝까지 잡아야 할 것 같구 ~ 보기만 해두 행복하고 ~ 그런 사람 ^ ^ ~ " 이라고 적었다. 서신의 내용에 의하면, 피해자는 피고인을 처음 만났을 때의 옷차림까지 상세하게 기억하고 있는 것은 물론이고 처음 봤을 때 피고인을 귀엽다고 생각했으며, 피고인의 승용차를 타고 한강 고수부지에 갔을 때 가슴이 두근거리는 사랑의 감정을 느꼈고, 그날 이후 피고인을 쭉 사랑해 왔으며, 앞으로도 영원히 사랑하겠다고 다짐하고 있음을 알 수 있다. 그런데 공소사실 1항 은, 피해자가 위와 같이 피고인에게 처음 사랑의 감정을 느꼈다고 하는 바로 그날 한강 고수부지 승용차 안에서 피고인이 위력 추행 범행을 저질렀다는 것인바, 서신의 내용 등에 비추어 보면, 당시 피고인이 피해자의 의사에 반하여 위력 추행 범행을 저질렀다는 피해자의 진술, 나아가 그 이후에도 피고인이 피해자의 의사에 반하여 공소사실과 같은 각 범행을 저질렀다는 피해자의 진술을 선뜻 믿기 어렵다 .

D) According to the victim’s statement, the victim was 27 years of age or more than himself/herself, and his/her parents tried to commit an indecent act by force on the parking lot of the Han River site with his/her own new wall. Not only did the victim have been informed of such fact, but also he/she again took place on the same day, and even if the defendant commits an indecent act by force, he/she was rape in his/her own within his/her own car, it was difficult to inform the victim of such fact without notifying the victim of such fact. Moreover, even if the victim was aware of information such as his/her house, family relation, school traveling, and private teaching institute, etc., and thus, the victim was unable to have been compelled to know about the fact that he/she was pregnant or she did not have been able to know about the fact that he/she had been forced to be pregnant or she did not have been able to know about the fact that he/she had been forced to engage in such violence. Furthermore, it is difficult for the victim to have been able to know about the fact that he/she was pregnant or rape.

마 ) 피고인과 피해자의 접견 대화록에 의하면, 피고인은 피해자를 걱정하면서 성폭행범을 공개하는 인터넷 사이트를 찾아서 주거지 인근에 성폭행범이 살고 있는지 확인하고, 짧은 치마 같은 것을 입고 다니지 말고 조심하라고 이야기하기도 하고 ( 공판기록 387쪽 ), 피해자는 ' 성폭행범도 집행유예로 나오거나 몇 개월밖에 감옥에서 안 사는데, 피고인이 뭘 했다고 왜 못나오냐 ' 라는 2012. 9. 4. 자 접견민원서신을 보내기도 하였는바, 이것은 의사에 반하여 추행 또는 강간을 당한 피해자와 피고인 사이에서 주고받을 내용의 대화라고 보기 어렵다 .

F) In light of the aforementioned various circumstances, it is difficult to readily conclude that the photograph taken by the victim was taken against the victim’s will, solely on the basis of the photographs of a flag (f) the flag where the victim entered the Defendant’s sexual organ.

In addition, in relation to the crime of inducing minors, the mother of the victim was forced to have sent Kakao text messages to the defendant before her out, and the mother of the victim was forced to get out of 12 hours after her birth. The mother of the victim was forced to get out of 5 hours after her birth. The mother of the victim was able to get out of her house or house her house her house she would have to get out of her house she would have to get out of her house she would have to get out of her house she would have to get out of her house she would have to get out of her house her house she would have to get out of her house she would have to get out of her house she would have no way to get out of her house she would have to get out of her house her house she would have no way to get out of her house her house she would have to get out of her house she had no way to get out of her house her house her house her.

D. Ultimately, the court below erred by misapprehending the legal principles on the concept of power in the crime of indecent act against juveniles by force, the degree of violence and intimidation in the crime of rape, and the concept of inducement in the crime of inducing minors, or by violating the rules of evidence, or by violating the rules of evidence that affected the conclusion of the judgment.

2. As to the case of the request for attachment order

As long as a defendant files an appeal against a prosecuted case, the appeal is deemed to have been filed regarding the case claiming an attachment order. Therefore, with respect to the case claiming an attachment order, the final appeal or final appeal did not state the grounds for objection in the relevant document. However, if the part of the judgment of the court below concerning the prosecuted case is reversed, the part concerning the case claiming an attachment order which must be examined together with the judgment of the court below shall not be reversed.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Park Young-young

Jeju High Court Justice Kim Shin -

Justices Kim Jong-il