(영문) 서울중앙지방법원 2018.2.14. 선고 2017고합726 판결

To be put on probation against the defendant and to take lectures of sexual assault for 80 hours.In the indictment of this case, the charge of violating the Act on Special Cases Concerning the Punishment of Sexual Crimes (the minor's indecent act under thirteen years of age) shall be acquitted.

Reasons

Criminal History Office

From the end of December 2008, the defendant was living together with D by the mother of the victim C (the family name, the female, the age of 16).

On July 28, 2014, the Defendant: (a) around Kimpo-si, Kimpo-si, E apartment 209 Dong 101, and (b) the victim (the age of 13 at that time) who wants to sleep by taking knee kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne kne; and (c) the Defendant kne kne kne kn

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness D and C;

1. The investigation report (the confirmation of the cell phone cover of the complainant);

1. Determination as to the assertion by the Defendant and the defense counsel regarding the metaology, the F dialogue between D and the victim

1. Summary of the assertion

The defendant does not commit any indecent act against the victim as stated in the facts constituting the crime.

2. Determination

A. The Defendant denies that there was no fact by force against the victim, as stated in the facts constituting the crime in its judgment, since the investigation agency and the investigation agency consistent to this court. Among the evidence submitted by the Prosecutor, the victim’s statement is flexible, and other evidence is merely based on the victim’s statement or it is insufficient to recognize the above crime. Thus, the issue of this case is whether the victim’s statement has credibility or credibility.

B. In full view of the following circumstances revealed by the evidence duly adopted and examined by this court, the victim’s statement is sufficiently reliable and thereby can be acknowledged as a fact of indecent act by force, such as the Defendant’s facts constituting a crime. Accordingly, this part of the assertion by the Defendant and the defense counsel is rejected.

1) The victim’s statement is consistent with the main part of the statement, and its contents are specific, and the contents of the statement cannot be found to be contradictory or unreasonable in light of the empirical rule.

가) 피해자는 수사기관 및 이 법정에서 '2014. 7월 불상경 엄마가 피고인과 함께 행사장에 다녀왔는데 엄마가 운전기사로 갔다와서 피곤해 했다. 피고인은 그 날 돌침 대가 딱딱해서 못자겠다고 하면서 내 침대에서 자겠다고 했고 나와 엄마는 방바닥에서 자게 되었다. 당시 피고인은 엄마가 다리가 아프다고 하여 다리를 주물러 주었는데 내가 잠이 들 무렵 피고인은 한 손으로 내가 입고 있던 통넓은 반바지 속으로 손을 넣어 팬티 속 살을 계속 주무르듯이 만졌다. 그 당시 오른쪽 발은 쫙 펴고 있었고, 왼쪽 발은 무릎을 세운 채 있었는데, 피고인이 왼손 손가락으로 음부 부위를 만졌다. 그 느낌이 싫어 몸을 오른쪽 방문쪽으로 틀었더니 피고인이 손을 빼고화장실로 갔다. 그 후자고 있는 엄마를 깨워 피고인에게 들키지 않기 위하여 엄마의 손바닥에 피고인이 한 행동을 한 자씩 적어서 엄마에게 알렸다. 그래서 엄마는 일단 지금 밤이니까 자고 일어나서 엄마가 피고인하고 한번 이야기를 해보겠다고 하고 잠이 들었다.'는 취지로 진술하였다.

B) As above, the victim made a statement in a consistent manner as to the overall situation of the crime, such as the background and location of the crime in this case, the attitude and location of the defendant and the victim, and the method of the defendant's indecent act, etc. In addition, the victim's statement includes detailed and distinctive matters that are difficult to make a statement without direct experience, such as "the situation in which the defendant took the victim's sium bridge," "the content in which the defendant took the hand by inserting the victim's sium," and "the contents of the victim's sium by inserting the hand on the hand floor," and it is difficult to see that the victim made a false statement without direct experience, such as "the contents notified to the mother of the victim by writing on the hand."

C) Meanwhile, the defense counsel appears to be impossible to communicate with the victim and the victim in the way of writing on the hand floor for a very short period of time at the victim's mother. The victim or the victim's mother claimed that it was difficult to accept it formally. Accordingly, the victim may hear the victim's out-of-the-way situation, but it was difficult for the victim to know that the distance was difficult for him to take school, and it is difficult to find it more likely to do so if he knows that the defendant made his speech to humb, and D also seems to have experienced fear about the defendant. As above, in the situation where the victim and D have severely frighted against the defendant, it would be difficult for the victim to inform D of the indecent act in his hand, or would not have made it difficult for the victim to make a statement as a unique experience, but rather, it would be difficult to make the victim's credibility as a victim's statement.

2) 피해자의 어머니인 D도 '당시 잠이 들었었는데, 피해자가 깨워서 손바닥에 "엄 마, 이렇게 해서 국장이 나한테 이런 짓 했어"라고 썼고, 깜깜한 데서 무서워 떨면서 말도 못하고 피해자와 계속 이불 속에서 손에 손편지를 쓰면서 계속 있다가 손편지가 끝난 다음에 피해자에게 "밤이고 지금은 무서우니까 일단 자자. 자면 내일 엄마가 다시 이야기를 해보마."라고 이야기를 하고 피해자를 재웠다.'라는 취지로 진술하여 피해자의 진술에 부합한다.

3) In addition, D made a statement that she was able to sit in a mixed cell because she was not locked, and she was able to go so far by using the word in Handphone. According to the investigation report (Evidence Records No. 926 to 928), D's mobile phone text confirmation (Evidence Records No. 926 to 928), around 03:28 on July 29, 2014, 'I am 'I am 'I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am you am I am I am I am I am I am I am I am I am I am I am I am I am I am now I am I will now we will now come I am.

4) 피해자와 D 사이의 F 대화내용에 의하면(증거기록 제170쪽), D는 2014. 10. 14.경 피해자에게 '아빠 조심만 하고, 잠옷 긴 것 입고 좀 긴장하고 살아. 성적 수치심 오래간다. 지금도 생각하면 피가 거꾸로 솟아.', '아빠에게도 잘 말해놨으니~그래도 조심 해. 미친개야.'라고 말한 사실을 인정할 수 있는바, 피해자와 D는 피고인의 성적인 행동에 대하여 상당히 경계하였던 것으로 보인다. 또한 피고인의 성적인 행동은 D가 '지금도 생각하면 피가 거꾸로 솟아.'라고 표현하고 있듯이 단순히 교복을 내려주는 것과 같이 일상적인 생활에서 나타날 수 있는 행위가 아니라 상당히 중한 성적인 행동이 있었음을 시사하는바, 이는 피고인으로부터 강제추행을 당하였다는 피해자의 진술을 뒷받침하는 정황으로 볼 수 있다.

5) The defendant and his defense counsel asserted that the defendant did not disclose the fact that he did not have been divorced to D during the eight-year period of living with D, and that D had been aware of the fact that the defendant had not yet been divorced, and that the victim who had believed and believed that the defendant had not been divorced for a long period of time as well as D had experienced considerable shock and reliance, and actively made a false statement against the defendant.

살피건대, 피고인과 D 사이의 통화내용 녹취록에 의하면(증거기록 제195 내지 228쪽), D는 피고인이 이혼하지 않은 채 자신을 속인 사실에 대하여 상당히 분노하고 있는 것으로 보이기는 한다. 그러나 위 녹취록에 의하더라도 D는 피고인이 이혼하지 않은 것에 대하여 화를 내고 있는 것 외에 '나를 내 다리 아프다고 주물러주면서 어떻게 내 옆에 누워있는 H 보지를 주물럭주물럭 거려?', '내 옆, 내 자는 나를 주물러 주는 손으로 한 손으로는 나를 주물이고, 한 손은 H 보지를 주물럭 거릴 수 있어?'라며 피고인이 피해자에 대하여 한 강제추행에 대하여 따지며 말하고 있는바, D의 태도, 내용, 진술 당시 상황 등에 비추어 허위로 지어내어 말하는 것으로 보이지는 않는다. 이러한 사정에 피해자가 피고인을 친아버지처럼 따랐던 것이 아니라 어머니인 D의 동거남 내지 D로부터 돈을 갈취해 가는 사람 정도로 생각하였던 것으로 보이는 바, 피해자가 피고인이 이혼하지 않은 사실에 대하여 그다지 상실감 내지 배신감을 느꼈던 것으로는 보이지 않는 점, 앞서 본 바와 같이 피해자는 피고인의 이 사건 범행에 대하여 상당히 구체적으로 일관되게 진술하고 있는바, 2016. 1.경 이후 피고인과 D가 이미 별거하고 있는 상황에서 추가로 피고인을 D로부터 떨어뜨리기 위하여 거짓말을 할 동기를 찾아 볼 수 없는 점, 피해자와 D는 피고인의 이혼사실이 밝혀지기 전부터 이미 피고인의 강제추행에 대하여 이야기를 나눴던 것으로 보이는 점 등을 보태어 보면, 피해자나 D가 2016년경 이후 피고인이 이혼하지 않았던 사실을 지득하고 이에 배신감을 느껴 약 2 년 전의 사실을 허위로 지어내어 진술하였다고 보기는 어렵다.

6) Meanwhile, even after the instant crime was committed, the victim appears to have resided in the Defendant and officetel for a period of one year. However, this appears to have been inevitable to have been hospitalized in the hospital around September 2014 by her mother, and considering that the victim had lived together with the Defendant for the past six years, it is difficult to view that the credibility of the victim’s statement was weak solely based on such circumstances.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and Article 298 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Orders for probation and education;

The main sentence of Article 21(2) and (4) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

1. The grounds for sentencing on the grounds for sentencing on the grounds for sentencing on the following grounds: (a) comprehensively taking account of the following: (b) the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Act on the Protection of Children and Juveniles against Sexual Abuse (the Act on the Protection of Children and Juveniles against Sexual Abuse) (the Act on the Protection of Children and Juveniles against Sexual Abuse has no history of punishment prior to the crime in this case, and thus, it is difficult to readily conclude that the Defendant has a risk of recidivism or recidivism; (c) the registration of personal information on the Defendant and taking lectures in the sexual assault treatment course against the Defendant appears to have the effect of preventing recidivism; and (d) the effect of preventing sexual crimes that may be achieved by an order to disclose or notify the personal information

2. Scope of recommended sentences according to the sentencing criteria;

[Scope of Recommendation Form] (Indecent Act by Indecent Act by Force, such as Indecent Act by Force, Indecent Act by Force, by Force, by Force, by Force, by Force, by Force, by Force, by Force, by Force, by Force, by Force, by Force,

* Form : Juvenile indecent act by compulsion shall be included in Category 2, but the upper and lower limit of the range of sentence shall be reduced by 2/3.

【Special Convicted Person】

[Scope of Recommendation] Basic Field, Imprisonment from August to April 3

3. The crime of this case committed by the Defendant was committed by indecent act by compulsion of the victim’s age while living together, and the nature of the crime is not good. The victim appears to have caused considerable mental shock and sexual humiliation due to the instant crime, and the Defendant did not receive a letter from the victim. Such circumstances are disadvantageous to the Defendant.

However, the defendant has been punished for a fine of about 21 years prior to the punishment, and has no record of being punished for the same kind of crime, etc. in consideration of the circumstances favorable to the defendant, and upon comprehensive consideration of the defendant's age, character and conduct, family relation, motive, means and consequence of the crime, various sentencing conditions in the trial process of this case, such as the circumstances after the crime, shall be determined as ordered

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Parts of innocence

1. Summary of the facts charged

A. On January 4, 2013, the Defendant: (a) around Kimpo-si, Kimpo-si, 209, 101, D, the victim (at that time, 12 years of age) who was in the bed in the bed room within the house of Kimpo-si, 209 Dong-si, 101, Da Da Da Da 12 was her hand by the inner clothes of

B. From February 2013 to March 1 of the same year, the Defendant: (a) at the same place as paragraph (a) of Article 1-A between the victim (the victim (the age of 12 at that time) who was frighted to the bend to the bend in the bend; (b) brought his hand into the bend of the victim’s inner clothes; and (c) reached the victim’s left chest. Accordingly, the Defendant committed indecent act twice by force on the part of the minor victim under the age of 13.

2. Defendant and his defense counsel’s assertion

The Defendant did not commit an indecent act against the victim as described in each of the above facts charged.

3. Determination

(a) Relevant legal principles;

In a case where the Defendant strongly denies the facts charged, and the victim’s statement is in fact a direct evidence consistent with the facts charged in the record, and the remaining evidence is merely hearsay evidence based on the victim’s statement, etc., in order to find the Defendant guilty of the facts charged, the victim’s statement is required to have high probative value so as to have little doubt about the authenticity and accuracy of the statement in order to find the Defendant guilty of the facts charged. When determining whether to have such probative value, the victim’s statement should comprehensively consider not only the reasonableness, consistency, and objective reasonableness of the statement, but also personal elements such as the victim’s sexual character (see Supreme Court Decision 2011Do16413, May 10, 2012).

The conviction in a criminal trial ought to be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and if there is no evidence to form such a conviction, even if there is suspicion of guilt against the defendant, it is inevitable to determine the defendant as the benefit of the defendant (see, e.g., Supreme Court Decision 2014Do11771, Feb. 26, 2015).

B. Determination

In light of the following circumstances revealed by the evidence duly adopted and examined by the court, the victim’s statement, the only direct evidence submitted by the prosecutor to prove each of the facts charged, is not consistent with the date and time of the crime, method of the crime, etc., and contains any distorted or exaggerated parts, and it is difficult to deem that there is no room for doubting the authenticity and accuracy of the statement to the extent that there is little room for doubt.

1) As to Article 1-A(A) of the facts charged

(1) On January 3 and 4, 2013, the victim stated in the investigative agency and this court that the victim sleeped a lock in the inner bed with the defendant with regard to the facts of the damage, and that the defendant sleeped on his chest.

(2) 그러나 피해자는 당시 브래지어를 착용하였는지 여부에 관하여, 경찰에서는 '가해자가 저에게 앞 파인 내복을 입으라고 하면서 안에 아무것도 입지 말고 몸에 붙는 내복만 입고 자라고 해서 저는 내복만 입고 잤고, 가해자의 손은 제 목 쪽으로 해서 자신의 손을 집어 넣었습니다'라고만 진술하였다가(증거기록 제117쪽), 검찰에서는 '저 그때 막 브레이지어 하고 있고 이런 시점인데, 다 이렇게 다 도드라지게 몸매가 다완전 쫙 붙는거 있잖아요.', '(브래지어 안하고 그냥 내복만 입은 거야?) 그럴 때도 안하는게 "노브라가 더 건강에 좋더라." 뭐 이런 식으로 저한테 막 말씀하시고, 그니까 그런 상태였는데 저한테 그런 딱 달라붙는 내복을 입는 거를 자꾸 저한테 입으라고 억지로 이렇게 말씀하셨고(후략)'라고 진술하여 피고인이 시켜서 당시 내복 안에 브래지어를 착용하지 않았다는 취지로 진술하였다(증거기록 제857쪽), 그리고 피해자는 다시 이 법정에서 검사의 질문에는 "속옷은 위, 아래 다 착용하고 있었고, 속옷 위에 바로 내복을 입었습니다", "피고인의 오른손이 이쪽 가슴에 내복 안에 손을 넣어서 브래지어 그 속 안을 딱 가만히 놓고 가만히 있던 그 상태로 저는 딱 눈을 떴습니다"라고 진술하여 피고인이 브래지어 속으로 손을 넣어 가슴을 만졌다는 취지로 자세히 진술하였다 가(C에 대한 증인신문 녹취서 제4쪽), 이후 변호인의 질문에는 '첫번째(피해의 경우)는 입지 않았습니다'라고 말하여 종전 진술을 번복하였고(C에 대한 증인신문 녹취서 제33쪽), 계속되는 질문에 '그 당시 브래지어를 입었는지 잘 기억이 나지 않는다'고 진술하였다(C에 대한 증인신문 녹취서 제34쪽).

(3) 또한 피해자는 피고인이 피해자의 가슴을 만진 상태로 움직였는지 여부에 관하여, 경찰에서는 '제 오른쪽 가슴에 손을 올려놓고 있었습니다.'라고만 진술하였다가(증거기록 제117쪽), 이후 검찰에서는 "(어떻게 넣고서 가만히 있는 상태였어, 아니면 약간 좀 손이 움직이기도 하고 그랬어?) 이제 넣고 제가 떴을 때는 넣고 있는 상태였는데, 이제 잠결에 움직이시잖아요. 그 아저씨도, 움직이니까.", "(그 아저씨는 자고 있었어?) 예. 약간 잠결이셨어요. 그래서 자면서 약간 '어어'이러면서 약간 이렇게 만지작 하시기도 했고."라고 진술하여 피고인이 움직였고, 잠결에 만지작거렸다고 진술을 추가 하였다(증거기록 제857, 858쪽). 그리고 이 법정에서는 '움직인 것은 아니지만 가만히 대고 있었습니다.', '움직이지 않았습니다. 손을 대고만 있었습니다.'라고 진술하여 피고인이 움직이지 않았다고 진술을 번복하였다(C에 대한 증인신문 녹취서 제35쪽).

(4) As such, the victim’s statement related to this part of the facts charged is not consistent with the situation at the time of the commission of the crime, and the victim made an answer or an exaggerated statement in response to the inquiry of the investigative agency at that time regarding the part where the victim did not properly memory, rather than to mention the experienced contents as his/her memory, and it is difficult to evaluate that the victim’s statement is highly reliable in this part of the damage statement.

B) With regard to the facts charged No. 1(b), the victim did not state the same damage as that stated in this part of the facts charged at the police, and it is essential for the prosecution to see that it was 10 months or longer, and that it was 10 days or less, and that it was 3 months or less, and that it was 10 days or less, and that 3 days or less, it was 10 days or less, and 4 days or less, the victim stated that it was 6 days or less, and that it was 3 days or less, and that it was 10 days or less, and that it was 2 days or less, and that it was 6 days more or less, and that it was 8 days more or less, and that it was 10 days more or less, and that it was 10 days more or less, and that it was 2 days more or less, 3 days less than 6 days less than 10 days less than 10 days less than 10 days less than 3 days less than 10 days more.

2) Other circumstances

A) Meanwhile, in relation to Article 1-A (A) of the facts charged, even if the defendant had taken the victim's chest as stated in the victim's statement, the victim stated that "at the same time, the victim was sleeped, and the victim continued to slick without any reaction even after subtracting the victim's bodily loss from the loss." Thus, the above statement alone cannot be ruled out as to whether the defendant committed an indecent act against the victim at the time with the intent of committing an indecent act against the victim at the time, and it cannot be ruled out that the defendant contacted the victim's chest as part of an intangible act.

B) In relation to the facts charged No. 1-b., this part of the facts charged is that this part of the facts charged is that "the victim who is faced with a son a son a son a son's son, and the left chest of the victim." Even according to the prosecutor's statement by the victim, the victim cannot be found at the time of the victim's prosecutor's statement. Rather, the victim's statement that he was faced with a son a son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

C) Although the mother stated that D was aware of the Defendant’s indecent act each time the Defendant committed an indecent act, according to the Handphones written by D around the date and time of each of the instant charges, it is difficult to readily understand that D had a habit that D gave up the details of such damage from the victim, given that D had a habit that D followed up the detailed content of ordinary D. Therefore, the evidence submitted by the prosecutor alone is insufficient to view that each of the instant charges charged by the Defendant committed indecent act by force as stated in each of the charges No. 1, without any reasonable doubt, is proven, and there is no other evidence to acknowledge this.

4. Conclusion

Therefore, this part of the facts charged against the defendant constitutes a case where there is no proof of crime, and thus, it is decided as per Disposition by the latter part of Article 325 of the Criminal Procedure Act.

Judges

The presiding judge shall be changed.

Judges Tae-young

Judicial Chief Judge;

Note tin

1) The defense counsel's dismissal of public prosecution is difficult to view that the date and time of crime are not specified and the facts charged are unclear.

The following circumstances may be revealed by the evidence duly adopted and examined by this Court:

In other words, the victim has made a statement at least two years after the date of the occurrence of the case at the time of the investigation by the investigative agency, and the victim

(1) A crime committed on or after January 3 through 4, 2013, which was alleged to have been committed for the first indecent act against the fact that the crime was committed on or after January 3 to 4, 2013.

The date and time was specified and the victim made a statement in excess of memory as to the date and time of his/her lecture for a case that had occurred before several years;

It is difficult to expect that information, such as accurate date and time of damage, should be memoryed, and a somewhat general indication about the date and time of the crime of this case is somewhat general;

In addition to the date and time of the crime, the place and method of the crime are specified in all the facts charged in this part.

In full view of the fact that it is difficult to deem that the exercise of the right of defense is substantially hindered, this part of the facts charged is not specifically specified.

As such, the procedure for filing a public prosecution cannot be deemed unlawful in violation of the provisions of the law, the defense counsel’s assertion is not accepted.

(c)

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제7조 제3항

-아동ㆍ청소년의 성보호에 관한 법률 제21조 제2항

-아동ㆍ청소년의 성보호에 관한 법률 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제50조 제1항

참조판례