[1] The case holding that as to the charges of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Special Robbery, etc.) against the Defendant (15 years old) committed a joint principal offense against “special robbery” (special robbery) under the above charges, and on the other hand, as to the part of “special robbery” (special robbery)” under the Criminal Act, the Defendant acknowledged a joint principal offense against the Criminal Act as to “special robbery” (special robbery)” under the aforesaid charges, and on the other hand, as to the “Attempted rape” part of the aforementioned charges, the Defendant acknowledged a joint principal offense against the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) against the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.)

[2] The case denying the establishment of the crime of rape on the ground that the crime of rape was committed on the ground that: (a) the defendant (the 15-year-old-old-old-age-old-age-age-age-age-age-age-age-age-age-old-age-age-age-age-age-age-age-age-age-age-age-age-age-of-the-counter-age-age-age-and-age-age-related-age-related-age-related-age-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related

[1] The case holding that it is difficult to view that Defendant (the 15-year old-old-old-old-old-year-old-old-old-old-year-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-old-crime-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related----related-related-related------------------------------------------------

[2] The case holding that it is difficult to view that Defendant (the 15-year-old) was raped before the elevator room on the 23th floor of the nearby apartment complex and attempted rape (the 14-year-old age), and that Defendant (the 23-year-old old-age-old-age-age-age-age-age-age-age-age-age-age-age-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-related-old-age-old-age-related-old-age-related-old-age-related-old-age-related-old-age-related-old-age-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-related-----

[1] Articles 30, 297, 298, 300, 334(2), and 350(1) of the Criminal Act; Articles 7(2)2 and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Articles 3(2) and 14 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 298 of the Criminal Procedure Act / [2] Articles 15(2), 30, 297, 30, and 301-2 of the Criminal Act; Article 298 of the Criminal Procedure Act

[1] Supreme Court Decision 84Do2956 delivered on March 26, 1985 (Gong1985, 656), Supreme Court Decision 2001Do359 Delivered on March 23, 2001 (Gong2001Sang, 1060), Supreme Court Decision 2004Do4437 Delivered on October 28, 2004, Supreme Court Decision 2004Do2870 Delivered on August 20, 2004 (Gong2004Ha, 1623) / [2] Supreme Court Decision 88Do178 Delivered on April 12, 198 (Gong198, 865) (Gong1929Do3293 delivered on April 27, 1993)

Defendant

Equitable

Law Firm B&W, Attorneys Kim Young-jin et al.

A defendant shall be punished by imprisonment for a maximum term of two years and a short term of one year and six months.

The defendant shall be ordered to complete a sexual assault treatment program for 120 hours.

A copy (No. 2) of the paper paper paper (No. 2) issued by the Bank of Korea confiscated shall be returned to the heir of the victim non-indicted 1.

1. Suppression;

At around 18:00 on May 5, 2010, the Defendant recruited the Defendant to deduct money and valuables from his house located in Dobong-gu, Seoul Special Metropolitan City, Seocheon-dong 1712 Cheongcheon-dong 1712 (hereinafter omitted), Nonindicted 2, who had been staying in his house before this framework, and young students who had been staying in his house before this framework, and fluendddd, who had been staying in his house, and fluorddd, and fluenddddddddd, on the alley way near the subway 7 lines located in the Seoul Metropolitan City, Seocheon-gu 4, 317-5.

On May 5, 2010, at around 21:00, the victim Nonindicted Party 1 (the age of 14) was discovered, and Nonindicted Party 2 told the victim that “I am I am I am I am I am I am.” The Defendant took the victim from his place to alley alleyway of about 30 meters away from 30 meters, and taken a photograph when the victim “I am I am there? I am no we am? I am you am you am you am you am. I am you am you am you am you am. I am you am you am I am. I am we am. I d. because I have a photograph, I am you am you am you am you am.” The Defendant am you am you am. I am you am you am you am you am you am you am from the victim and am you am you can make a report.

On the same day, at around 21:37, the Defendant arrived at the front of the above apartment 111, and asked Nonindicted 2 to wait outside of the above apartment 111, and let Nonindicted 2 wait before the above apartment 111, the Defendant got out of the apartment 23th floor, getting out of the apartment 20th floor, getting out the elevator with the victim, and going out on the elevator machine room in the above apartment 23th floor using emergency stairs. The above machine room is not used by the residents of the apartment, and only the persons related to the apartment management room enter the apartment 21st floor, and opened the 21st floor door. The victim, who became aware of the fact that he did not have a frightle like the Defendant’s horse, was waiting to leave the apartment 111, and let Nonindicted 2 get out of the above apartment 111, and let Nonindicted 2 get out of the apartment 50,000 won of the victim, who did not have any human character at night, and deducted him from the victim.

2. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

The defendant, like the statement in paragraph (1), was 111 in the vicinity of the male basin where he had induced the victim non-indicted 1 (Taking, 14 years old), and had the victim take away the wall from the victim as described in paragraph (1) in front of the elevator room of the 111th floor and 23th floor of the above apartment house, and had the victim take away the wall from the victim, as described in paragraph (1), then put the part of the victim by hand in hand and forced several times after cutting the victim's arms. The victim forced the victim to take away from the body while leaving the body of the victim so that it is difficult for the victim to take away from the body of the victim, and put the victim's chest to take care of the victim's chest, and continued to put the victim's finger to the victim's finger, who was suffering from the victim's hand, and forced the victim's finger to put the victim's finger to the part of the elevator room, and continued to put the victim's finger into the victim's finger.

3. Special larceny;

On November 17, 2009, between 03:00 and 03:30, the Defendant, in collaboration with pro-Japanese Non-Indicted 3 and 4, came to a ○○○ ○○○ cafeteria cafeteria operated by Non-Indicted 5, the victim non-Indicted 5 (hereinafter omitted), who was in the lusium in the lusium in the lusium in the lusium (hereinafter omitted), destroyed the entrance, and then invaded into the restaurant, and cut off approximately KRW 10,000 of cash contained in the lusium, and KRW 20,000 in cash contained in the lusium.

[Judgment of the court below]

1. Defendant's legal statement;

1. Legal statement of the witness Nonindicted 2

1. Each statement of the suspect interrogation protocol of each prosecution against the accused;

1. Each statement made by the police on Nonindicted 6

1. In the investigation report (in the case of a change of a victim), investigation report (in the case of a change of a victim), report (in the case of an investigation of a victim, CCTV and a victim from a change of a victim and residents leaving an elevator, Nonindicted 7 other party investigation), investigation report (in the case of a victim's vehicle), investigation report (in the case of a victim's vehicle moving route), investigation report (in the case of a victim's vehicle moving route), photographs taken at the location where a suspect is found to have a cellphone, the inspection report (in the case of a victim's vehicle moving route) (in the case of a victim's vehicle and a photo taken at the location where a cellphone is found to have a cellphone), emergency appraisal report, investigation report (in the case of a suspect vehicle moving to the victim, photographing the victim at the location where

1. Photographs of a change site, the 22th floor rooftop, the 23th floor window, the studio 23th floor window, the studio studio, the front section and the rear studio, etc. taken in a ward room, the image of the studio of the screen in which the suspect is changed, Nonindicted 7 of the resident and Nonindicted 7 of the elevator is loaded;

1. Each entry in the police seizure record dated May 6, 2010 and the list of seizure;

【Fact-Finding 3】

1. Defendant's legal statement;

1. Statement of Nonindicted 3’s protocol of interrogation of the police officer

1. Statement in the initial report on the thief incident;

1. Images of theft site photographs and CCTV photographs taken in the form of a suspect;

1. Statement of Nonindicted 5’s Preparation

1. Relevant Article of the Act and the choice of punishment for the crime;

Articles 350(1), 30(1), and 30(a) of the Criminal Act; Article 7(2)2 (a) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 331(2) and (1) of the Criminal Act (a thief)

1. Mitigation of juvenile offenses;

Articles 2 and 60(2) of the Juvenile Act, Article 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed for a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, which is the largest punishment)

1. Illegal punishment;

Articles 2 and 60(1) of the Juvenile Act

1. Order to complete programs;

Article 13 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Return to a victim;

Article 333(1) of the Criminal Procedure Act

Around December 2009, the Defendant, as a juvenile of 15 years of age, was subject to juvenile protective disposition due to special larceny, but there was no record of being punished, and all of each of the crimes of this case is recognized, and the Defendant is divided. There are circumstances to be considered for the Defendant, such as the following: (a) the amount of damage from the attack of this case and the crime of special larceny is relatively minor; and (b) the Defendant agreed with Nonindicted 5 of the victim of special larceny.

However, the charge of committing the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse is not weak, and even though the part of innocence states below, the crime of rape was not established because there is no possibility for predicting the defendant's intentional rape and the death of the victim. However, the victim non-indicted 1, who was mentally shocked due to the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) committed by the defendant, died on the 23th floor immediately after the above crime, and did not reach an agreement between the defendant's side and the victim's bereaved family members, taking into account other unfavorable circumstances against the defendant, such as the defendant's personality and behavior, family environment, the circumstances, means and methods of each of the crimes in this case, and the circumstances after the crime, etc.

1. Summary of the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (special robbery, rape, etc.) among the facts charged in the instant case and the death resulting from rape

(a) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

At around 18:00 on May 5, 2010, the Defendant recruited the Defendant to deduct money and valuables from his house located in Dobong-gu, Seoul Special Metropolitan City, Seocheon-dong 1712 Cheongcheon-dong 1712 (hereinafter omitted), Nonindicted 2, who had been staying in his house before this framework, and young students who had been staying in his house before this framework, and fluendddd, who had been staying in his house, and fluorddd, and fluenddddddddd, on the alley way near the subway 7 lines located in the Seoul Metropolitan City, Seocheon-gu 4, 317-5.

On May 5, 2010, at around 21:00, the victim Nonindicted Party 1 (Woo, 14 years old), Nonindicted Party 2 discovered the victim Nonindicted Party 1 (Woo, 14 years old), and Nonindicted Party 2 told the victim that “I am I am I am I am I am I am.” The Defendant took the victim from this place to a alleyway with approximately 30 meters away from 30 meters away, and the Defendant took a photograph when the victim “I am I am there? I am there? I am? I am you am you am you am. I am you am you am you am you am you am. I am you am you am you am. I am you am you am. I am you am you am.). I am you am you am you am you am you am you am you am with the victim’s cell phone, and am I 17,000 am in Seoul.

On the same day, at around 21:37, the Defendant arrived at the front of the above apartment 111, told Nonindicted 2 to wait outside the above apartment 111, and let Nonindicted 2 wait for the above apartment 111, the Defendant got out of the apartment 23th floor. The Defendant got out of the apartment 20th floor with the victim, getting out of the elevator and getting out of the above apartment 23th floor, using emergency stairs. The above mechanical room is not used by the residents, and only the persons in charge of the management of the apartment 21st floor enter the apartment 21st floor, and the victim who became aware of the fact that there was no photograph, such as the Defendant’s horses, did not put out the apartment 21st floor, and went out from the victim’s 50 billion won, she took off from the victim’s 50 billion won.

As above, the defendant, who had induced the victim to commit rape in the vicinity of the male basin, continued to catch the victim's arms and sell the victim's arms, forced several times after the victim's arm's length, and put the victim into the victim's arms so that the victim's body cannot escape from any defect that the victim would have unsatisfed or about to do so, after putting the victim's chest into the brogate on the part of the victim's body and putting the victim's chest into the brode. The victim's chest was charged with the victim's chest by gathering the hand in the brode on the part of the victim's body where the victim was suffering. The defendant forced the victim to unsatisfe the panty bro that the victim was suffering from the victim's finger and forced to do so, put the victim's finger within the part of the victim's sexual intercourse, and continued to commit rape, but the victim's sexual intercourse did not go against the victim's sexual intercourse.

(b) Death in rape;

As above, the Defendant attempted to rape the victim for more than one hour from 21:37 to 22:44 on the same day from 21:37 on the same day, and the Defendant, while getting out of the 23th floor stairs, she was frighter, and the victim, who is flap, feld by the fear due to the above paragraph (a) of the A, may be re-Rape from the Defendant or Nonindicted 2, who was waiting in the atmosphere on the 1st floor of the above apartment, opened the window of the machinery room of the elevator of the 23th floor to escape from this.

Accordingly, the defendant caused the victim's death from a seat to a multiple damage.

2. Determination

A. Whether the crime of special robbery is established

(1) In the crime of robbery, the degree of assault and intimidation must be the degree to which the other party’s resistance may be objectively forced or able to resist (see, e.g., Supreme Court Decision 2001Do359, Mar. 23, 2001). In addition, a joint crime provided for in Article 334(2) of the Criminal Act requires an open recruitment as a subjective element, and a cooperative relationship between the sharing of the act at the site as an objective element and the sharing of the act at the site (see, e.g., Supreme Court Decision 84Do2956, Mar. 26, 1985).

(2) First of all, as to whether the defendant or non-indicted 2 used violence or intimidation that makes it impossible for the defendant or non-indicted 1 to resist his resistance against the victim, there is no evidence to prove that the defendant or non-indicted 2 used violence or intimidation to the extent that the victim was forced to resist or resist his resistance against the victim from the alley of male space up to 111, and that the defendant or non-indicted 2 used violence or intimidation to the victim from the above apartment space up to 111. Rather, in light of the fact that the victim did not have been able to resist or resist the victim from the above apartment space up to 111, it appears that the victim 1 was 3rd of the above apartment space up to 111,000 before the above apartment space up to 7th of the day of the examination of the victim (the Seoul Central District Court 2010Gohap815Da45577, the case number of non-indicted 2's apartment space up to the above 10th of the defendant's body.

Thus, the defendant stated that "the victim does not have money, satisfy money, and satisfy money." After the victim shows that "the victim does not have money, satisfy money," the victim's satisfys the victim's satfy, and satfys the victim's satfy," the victim's satfy "I see that we would have known about the victim's satfy." (408 pages of the defendant's statement and investigation record) is all of violence or intimidation that the defendant made to deduct money from the victim, and it is difficult to view that the victim's satfy on the defendant's satfy, 5,600 won, and the victim's satfy, 5,000,000 won, it was hard to view that the victim's satfy, satfy, and 45,000,000.

(3) Next, according to the defendant and non-indicted 2's criminal act, according to the defendant's legal statement and the witness's legal statement, it can be acknowledged that the defendant and non-indicted 2 conspiredd to take the defendant's money and valuables from the victim. However, according to each of the above evidence, Non-indicted 2, together with the defendant, was waiting to take the victim in the above apartment 111 in front of the defendant's 11th apartment space, who is waiting for a short time, and was waiting to take the defendant's seat at the end of the defendant's 111 apartment space. Thus, as seen above, there is no evidence to support that the defendant or non-indicted 2 used the defendant's assault or intimidation to suppress the victim or to make it impossible to resist the victim's resistance, and that the defendant did not take the defendant's act of assault or intimidation on the part of the non-indicted 2 in front of the above apartment building 11, and did not take money and valuables from the victim's place in the elevator room or the defendant's place.

(4) Thus, the defendant is only a joint principal offender of the crime of extortion as stated in the criminal facts paragraph (1) of the judgment, and special robbery cannot be established against the defendant.

B. Whether the crime of rape was established

(1) The Defendant is arguing to the effect that, with the intention of forcing the victim to commit an indecent act, the victim only satisfe the chest of the victim, and satfe his fingers in the victim’s sexual organ, and that he did not have any intent to rape the victim.

(2) In light of the following facts: ① the victim’s physical reflective response to the amount and quality of the victim’s resistance is not only the voice, but also the Defendant’s gene type was not detected outside his quality (the investigation records of this case 596 pages, Seoul Central District Court 2010Gohap1303 pages); ② the Defendant’s personal identity was separated from the victim before the mechanical room of the 111th and 23th elevator of this case; and the Defendant had already been able to commit an indecent act by inserting her fingers, etc.; ② the Defendant did not have any physical reflect on the victim’s body at the time of the crime (the investigation records 232 pages) and did not have any effect on the victim’s chest at the time of rape, and even if she did not have sexual intercourse with the victim, it is difficult for the Defendant to have engaged in an act of rape with his or her sexual intercourse with the victim, and thus, it was difficult for the Defendant to have tried to have his or her sexual intercourse with his or her own sexual intercourse with the victim.

(3) Thus, as stated in paragraph (2) of the facts constituting a crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) against the defendant, the crime of attempted rape cannot be established.

C. Whether the crime of rape was established

(1) As above, the Defendant merely committed an indecent act against the victim and committed self-defense at the same place, and after the act of self-defense, the Defendant left front of the elevator room of the 111th and 23th floor of the above apartment building, the Defendant stated that he was unable to at all anticipate the victim’s death by exceeding the window on the 23th floor of the above apartment after leaving the above machine room.

(2) The so-called aggravated crime under Article 15(2) of the Criminal Act refers to the so-called aggravated crime under Article 15(2) of the Criminal Act where an offender could not anticipate the occurrence of the result at the time of the act, even if there is a causal relationship between the act and the result, it shall not be punishable as a serious crime (see Supreme Court Decision 88Do178, Apr. 12, 198, etc.)

(3) 살피건대, 피고인이 위 아파트 111동 앞에서 공소외 2에게 잠깐 기다리라고 한 다음 피해자를 위 아파트 111동 23층 엘리베이터 기계실 앞으로 데리고 가 판시 범죄사실 제1항, 제2항 기재와 같이 피해자로부터 지갑을 갈취한 후 피해자의 가슴을 만지고 피해자의 성기에 손가락을 집어넣는 등으로 피해자를 추행한 사실, 피고인이 위와 같이 피해자를 추행하면서 자신의 성기가 발기되자 피해자에게 ‘오줌 쌀 테니 돌아보지 말라’고 말하고 그곳 벽을 향해 자위행위를 한 사실은 위에서 인정한 바와 같고, 피고인의 법정진술, 증인 공소외 2의 법정진술, 피고인에 대한 검찰 제3회, 제4회 각 피의자신문조서의 각 진술기재, 수사보고(피의자 대동하고 처음 피해자를 만난 장소, 데리고 간 이동경로 및 성폭행 장면을 재연하여 사진촬영), 수사보고(푸르지오아파트 경비실에 촬영된 CCTV 시간과 실제 시간에 대한)의 각 기재 및 영상, 서울종합방재센터로부터 제출받은 119 변사(추락)사건 신고접수내역, 푸르지오아파트 111동 경비근무일지 사본의 각 기재, 피의자 혼자 엘리베이터를 타고 내려와 1층에서 내려가는 모습이 촬영된 CCTV 장면의 영상에 의하면, 피고인이 피해자의 성기에서 손가락을 빼자 피해자는 즉시 일어나서 옷을 추슬러 입었고, 피고인이 자위행위를 할 동안 피해자는 위 아파트 23층 엘리베이터 기계실 앞 계단에 앉아 있었던 사실, 피고인은 자위행위 이후 서둘러 옷을 입고 피해자에게 ‘나 간다’고 말하며 위 아파트 23층 엘리베이터 기계실 앞을 떠났는데, 당시에도 피해자는 고개를 숙인 채 위 기계실 앞 계단에 앉아 있었던 사실, 피고인은 위 아파트 21층으로 내려와 엘리베이터를 타기 위해 버튼을 누르고 기다리고 있던 중 피해자의 추락으로 인한 ‘쾅’ 소리를 들은 사실, 피고인은 피해자가 추락한 직후에 위 아파트 111동 밖으로 나와서 ‘왜 이렇게 늦게 나왔냐’고 하는 공소외 2에게 ’친구 집에 가서 라면 먹고 놀다가 왔다’고 말한 사실, 공소외 2가 화단을 가리키며 사람이 떨어졌다고 하는데도 피고인은 ‘진짜야? 어디 있어?’라고만 물은 후, 좀 더 보고 가자고 하는 공소외 2에게 ‘좀 있으면 엄마한테 전화 올 시간이다. 비도 오고 하니 빨리 가자.’는 취지로 말한 사실을 인정할 수 있다.

(4) Comprehensively taking account of the above facts, the following circumstances, namely, (i) the Defendant appears to have never committed assault or intimidation against the victim as a means of sexual crime before the machinery room of the above apartment floor 23th floor; (ii) the Defendant called the victim again after the indecent act by force, thereby committing self-defense; and (iii) the victim, who was frighting to the front stairs of the elevator room of the 23th floor immediately after the completion of self-defense, was able to get out of the 23th floor so far as the victim was able to get out of the 23th floor, without being able to get out of the 23th floor window, to avoid any imminent danger; and (iv) there was no possibility that the victim might have been able to get out of the 23th floor of the above apartment site without being able to get out of the 23th floor, and thus, there was no possibility that the victim might have come out of the 23th floor of the above apartment site.

3. Conclusion

Therefore, among the facts charged in the instant case, the charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (special robbery, rape, etc.) and the charge of rape, etc. shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, because all of the facts charged are included in the facts charged of attack and violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.). However, as long as the aforementioned facts charged are found guilty of the above crimes within the scope of the same facts charged, it shall not be pronounced not guilty in the separate text.

It is so decided as per Disposition for the above reasons.

Judges Lee Jong-young (Presiding Judge)