2019No2852 Quasi-rape

A

Both parties

Bags (prosecutions), Kim Sung-moo, and Bags (public trial)

For the understanding of attorneys:

Seoul Central District Court Decision 2019Gohap583 Decided December 13, 2019

April 24, 2020

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

The victim cannot be deemed to have existed at the time of the instant sex relationship, and there was no intention of quasi-rape in order to have sexual intercourse with the victim by taking advantage of the victim’s mental or physical condition or the state of failing to resist. Nevertheless, the lower court found the Defendant guilty of the charge of quasi-rape in this case erred by misapprehending the legal doctrine and misconception

2) Unreasonable sentencing

The punishment sentenced by the court below (10 months of imprisonment) is too unreasonable.

(b) An inspection;

The sentence sentenced by the court below is too uneasible and unfair.

2. Determination

A. As to the Defendant’s assertion of mistake and misapprehension of legal principles

1) The judgment of the court below

The lower court also argued to the same effect as this part of the grounds for appeal. The lower court determined that ① the victim was aware of his body before and after the time of the instant crime, and the circumstances surrounding the instant crime, including the fact that the victim became aware of his behavior later, and the circumstances leading to reporting the Defendant, did not seem to be unreasonable or unreasonable in the contents of the instant crime. In light of the victim’s statement mode and attitude at court, it does not appear that the victim made a false statement or made an exaggerated statement. ② The victim was unable to use the victim’s body at the time of the instant sex relationship and the situation before and after the instant crime was committed, the lower court determined that he was unable to use the victim’s body for a certain period of time after the victim was unable to dived with the Defendant, and determined that he was unable to use the victim’s body at the time of the instant case, and that the victim was unable to use the victim’s body by clearly mentioning that the victim was unable to use the victim’s body at the time of the instant accident.

2) Determination of the immediate deliberation

In addition to the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, the defendant, at the time of the crime of this case, can be found to have sexual intercourse with the victim by recognizing that the victim was at the time of committing the crime of this case, by using the victim’s stroke-m with the awareness that the victim was at the time of the crime of this case’s stroke-mor-mor-mor-mor-mor-morm and became at the time of the victim’s stroke-m.

① The Defendant asserts that, before doing so, the Defendant was able to shoulder the victim’s sexual intercourse, the victim respondeded to the sexual intercourse with the victim under the condition that she was locked. However, in full view of the following circumstances, it is sufficiently recognized that the victim had been in the state of being in the state of being lost or of being unable to resist at the time of the instant sexual intercourse.

According to the recording file of this case, the victim did not have any reaction other than that which has been paid several new ones, until the sex relationship begins and ends. Rather, the defendant, among the sex relationships of this case, should not be seen as "I wish to make the victim be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to..........

According to the family records of this case, it is recognized that the victim committed an act, such as dividing conversations with the defendant or taking clothes with the defendant and leaving the body in order to move to the defendant and the deceased. However, the victim's voice identified in the recording file of this case seems to have been completely unsatisfyed within the world, and the victim's voice, which was confirmed in the recording file of this case, still seems not to have been completely unsatisfyed, and the victim's voice, which was incorrect and inaccurate, was 4). Thus, after the sex relationship of this case, the victim was satisfyed as he turns out, even after the sex relationship of this case, while the victim did not completely deviate from the pharmacological effect of the satisfm after the satisfing, the victim was unable to resist at the time of the sex relationship of this case. Accordingly, it does not constitute a circumstance where the victim's above behavior was in the state of satisfying.

② citing the fact that the victim confirmed the blood transfusion immediately after the sex relationship in this case, the defendant asserts that if the sexual relationship in this case was committed in the course of the victim's blood transfusion, the victim immediately resisted the defendant after confirming the blood transfusion. However, the fact that there was no such a claim is that the sexual relationship in this case was not a quasi-Rape. However, as seen in the above paragraph (1), the sex relationship in this case was committed during the period when the victim was locked or was not in a normal food state by the strokem, and the victim was deemed to have failed to recover the normal ability for the next time after the sex relationship in this case. Thus, it seems difficult to doubt that the victim was aware of the above blood transfusion in the last normal state, and thus, the defendant was not guilty that he had a sexual intercourse.

③ The Defendant asserts that, even if the victim was unable to resist or resist, the victim appears to voluntarily respond to the Defendant’s gender-related City/Do in appearance, the Defendant merely thought that the victim would have consented to the sex relationship, and that there was no intention to quasi-rape. However, considering the following circumstances, the Defendant was clearly aware that the victim was in a state of mental or physical disability, and that the victim was in a state of non-rape. Thus, the Defendant’s assertion that there was no intention to quasi-rape cannot be accepted.

The Defendant and the victim of the crime to be able to say that they would end a de facto marital relationship up to the day immediately before the sex relationship in this case. The victim told the Defendant to save and save in a way that the victim saved and visited the Defendant, and even if a visit was held again, saved with the Defendant, saved, saved with the Defendant, saved, saved, saved, saved, saved, saved, saved, saved, saved, saved with each other). Nevertheless, the Defendant expressed the Defendant’s intention to refuse physical contact by stating that the victim was saved with the Defendant, saved, saved with the Defendant, and saved with the victim, saved with the victim, and that the victim did not saved with the victim’s body.

The Defendant does not seem to have any way to conceal the Defendant’s sexual intercourse immediately after the instant sex relationship, and acted naturally. However, the Defendant took a body of the victim who had been locked several times before and after the instant crime. As such, the Defendant’s natural behavior only leads to the Defendant’s failure to feel the awareness of the crime against the victim, and it does not appear in the circumstance supporting the Defendant and the victim’s sexual intercourse under the agreement.

④ The Defendant asserts that: (a) the Defendant did not know about the effect of the victim’s taking advantage of his/her clothes; and (b) even after having taken the Defendant’s taking advantage of his/her exemption, the Defendant could not be determined that the victim was in a state of mental disorder even at the time of the instant sex relationship because there were many cases where the victim was not diving immediately even after having taken off; (c) however, the Defendant’s assertion that, before taking the Defendant’s exemption at the time of the instant case, “I am flick up to 30 minutes of her flick,” and that “I am flick down before her taking advantage of his/her flick, I am her flick, and I am.” Accordingly, it is also difficult for the Defendant to accept the aforementioned change in the Defendant’s lawsuit.

⑤ The Defendant stated the date and time of recording on September 16, 2017 as 01 minutes after the time of recording on the recording file of this case (at 6:0 o'clock on the day of this case) which was submitted by the victim to investigative agencies (the recording date and time of recording on September 16, 2017). The Victim had already entered the recording on October 31, 2015, including the recording file of this case, before September 5, 2017, and the above 6:0 o'clock on September 16, 2017 was stored in the recording file of this case and the file name was indicated as 201 o'clock on September 16, 201 as '20905 o' on the recording date and time of recording, and the victim did not appear to have any relation to the recording of this case with the victim's statement of this case as 20 o'clock on the date and time of recording of this case.

B. As to the Defendant and prosecutor’s argument of sentencing division

If there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, the appellate court is reasonable to respect it (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

The crime of this case is deemed to have sexual intercourse immediately with the victim who had been suffering by the Defendant, and the nature of the crime is bad. The victim, who became aware of the crime of this case, was suffering due to the occurrence of considerable shock and sexual humiliation, and the victim’s statement in the investigation agency and the court of the court below that he did not want to memory, appears to have been aggravated suffering. Nevertheless, the Defendant was unable to recover from damage, and the victim sought a severe punishment against the Defendant.

However, prior to the instant case, the Defendant did not have been punished for a sex crime or sentenced to a fine exceeding the fine, and the instant crime should take into account the equity between the case and the case where the judgment was rendered concurrently with the offense of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes.

In full view of these circumstances and various sentencing conditions stipulated in Article 51 of the Criminal Act, the lower court’s sentencing is reasonable to respect the sentencing of the lower court on the grounds that it is not recognized that the sentence of the lower court is too heavy or too uneased and exceeded the reasonable scope of discretion given to the lower court. Therefore, the Defendant and the prosecutor’s allegation of unreasonable sentencing is without merit.

3. Conclusion

Since the appeal filed by the defendant and the prosecutor is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, judges and assistant officers;

Judges Lee Jae-chul

Judges Lee Byung-hee

1) 54 USB [1.54 USB] 54. 49. The recording note (3rd part of the investigation record) submitted by the victim to an investigative agency does not indicate an interim time. Thus, the prosecutor re-records it, and the prosecutor's recording statement [56 US Nos. 56 (2nd part of the evidence record)] is "record of the recording file of this case."

2) Recording notes 18, 19 pages of the recording files of this case

3) The defendant's opening time of a vehicle is when 30 minutes have passed since the completion of a sex relationship.

4) Recording page 18-23 of the recording file of this case

5) Recording notes concerning the recording files of this case 8 pages

6) Recording page 9 pages of the recording file of this case

7) Evidence list No. 12 / [Evidence Records (No. 3 rights of investigation records) 114 pages]

8) The evidence list Nos. 53 [13 pages of evidence records (in part of Investigation Record No. 13)]. The record was drawn up on March 21, 2018 when the above 6 p.m. situation reaches the record (the date of preparation: May 1, 2018).