(영문) 서울중앙지방법원 2018.11.9. 선고 2018고합568 판결

Around 04:00 on September 22, 2017, when the Defendant was walking the Jongno-gu Seoul Metropolitan City B street, the Defendant found that the victim C was drunk sobing so that he was unable to properly look at the spirit, and was seated on the floor along with his friendship D. The Defendant: (a) stated that D would assist the victim C with D; (b) stated D that “A under the influence of alcohol as a result of drinking to the Jongno-gu Seoul Eel, Seoul, would be h. in front of the house,” and (c) sent the Defendant’s resident registration certificate to the house by gathering the victim’s resident registration certificate, and sent the victim C to a guest room where it is impossible to identify the lake because he was able to do so.

On September 22, 2017, from around 04:39 to 10:00 on the same day, the Defendant exceeded the clothes of the victim C, who were under the influence of alcohol in the Eel room, and inserted the sexual organ into the drinking part of the victim. Accordingly, the Defendant had sexual intercourse with the victim C by taking advantage of the victim’s mental disorder or the state of failing to resist.

2. Larceny;

On September 22, 2017, from around 04:39 to 10:00 on the same day, the Defendant had one credit card of the F card company (hereinafter referred to as “the instant credit card”) within the bank of the victim C between the victim C in the Eel room and the victim C was divingd. Accordingly, the Defendant stolen the victim C’s property.

3. Fraud or violation of the Specialized Credit Finance Business Act;

At around 10:38 on September 2, 2017, the Defendant paid KRW 2,407,200 in total over 13 occasions from around 2017 to September 25, 2017, including that he/she presented the instant credit card to a taxi engineer as if he/she were the Defendant’s credit card, after using a numberless taxi operated by the victim’s taxi engineer in Gangnam-gu Seoul from the EM to the H clothing company located in Gangnam-gu Seoul. Accordingly, the Defendant paid KRW 2,407,200 in total, as shown in the separate crime list, from around 0:53 to September 25, 2017. Accordingly, the Defendant: (a) by deceiving the victim’s member shop; (b) obtained economic benefits by deceiving the victims, and used the stolen

1. Partial statement of the defendant;

1. C’s legal statement;

1. The protocol of interrogation of the police against the accused (Evidence No. 7) and the protocol of interrogation of the prosecutor's office which contain some statements;

1. A written statement of I;

1. Each business license certificate:

1. An investigation report, investigation report (related to the attachment of a credit card sales slip), investigation report (related to the attachment of a credit card sales slip), investigation report (related to the stolen card number verification);

Application of Statutes

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

Articles 299 and 297 of the Criminal Act (the point of quasi-rape), Article 329 of the Criminal Act, Article 329 of the Criminal Act (the point of larceny, the choice of imprisonment), Article 347 (1) of the Criminal Act (the point of fraud, the choice of imprisonment), Article 70 (1) 3 of the Specialized Credit Finance Business Act (the use of stolen credit cards, the use of

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes concerning quasi-rape prescribed in the Judgment with the most severe punishment)

1. Order to complete programs;

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

1. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 fact that it is difficult to readily conclude that the defendant has a risk of recidivism due to the absence of a same criminal record, and the defendant's personal information registration and complete program, etc. against him/her may have an effect on the prevention of recidivism even to a certain extent. In addition, in full view of all the circumstances, such as the side effects and anticipated side effects that the defendant will suffer from disadvantage due to the disclosure order and notification order, and the age, occupation, family environment, social relationship, motive, means, and consequence of the crime in this case, there are special circumstances where

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The Defendant had sexual intercourse under normal agreement with the victim C, and thereafter received the credit card of this case from the victim as a tea. Therefore, the Defendant cannot be deemed to have committed quasi-rape and larceny as stated in the judgment of the court below. However, the Defendant used the credit card of this case not only for the purpose permitted by the victim, but also for the settlement of clothes, liquor, etc., and thus, the Defendant recognized each of the crimes listed in paragraph (3) of the judgment except for the annexed list No. 1 in the annexed list of crimes used as tea expense.

2. Determination

In light of the following circumstances revealed in accordance with the evidence adopted and examined by the court, it can be sufficiently recognized that the defendant has committed sexual intercourse with the victim by using the victim's awareness of the victim's mental or physical disability or non-performance to resist, and that the credit card was stolen without permission from the victim. All the defendant's arguments are rejected.

가. 피해자는 수사기관 및 이 법정에서 준강간 피해를 당하게 된 경위 등에 관하여 '이 사건 전날 직장 상사로부터 폭언을 들어 스트레스로 자신의 주량인 소주 1.5병을 초과하여 술을 마셨다. 대학동기 D와 함께 이 사건 전날 밤 11:00~11:30경부터 술을 마셨으며, 1차 술집에서 소주 2병까지 마시고 2차 자리에서 화장실 갔다 올 때까지만 생각나고 그 이후는 전혀 기억나지 않는다. 이 사건 당일 아침에 통증이 있어서 깼는데, 자신과 피고인이 모두 옷을 벗은 상태였으며 피고인이 뒤에서 안고 항문성교를 시도하고 있었다. 그래서 아프다고 거부하며 화장실로 갔는데 음부가 너무 아파서 좌욕 하는 것처럼 음부에 물을 뿌리다 보니 정신이 들었다. 그 후 화장실에서 나와 옷을 입으려는데 피고인이 안에 사정했다.", "임신하면 연락해라."라고 말했던 것도 기억이 난다. 도대체 어떻게 해야 할지 모르겠어서 피고인을 뿌리치고 밖으로 나와 택시를 타고 집으로 왔다.'라고 진술하였다. 이렇게 공소사실에 들어맞는 피해자의 진술은 수사기관을 거쳐 이 법정에 이르기까지 매우 일관되고 구체적이면서 직접 경험하지 않으면 알 수 없는 세부적인 사항까지 포함하고 있으며 합리적이지 않거나 경험칙에 반한다고 볼 만한 내용이 없다. 또한 피해자가 이 법정에서 진술에 임하는 모습이나 태도 등에 비추어 보더라도 위와 같은 진술 내용은 거짓으로 꾸며낸 것이라고 보이지 않는다.

B. On the day of the instant case, the Defendant: (a) at the prosecutor’s office, the victim was under the influence of alcohol and was unable to take the body, and (b) went to her body. At the time, the victim went to the entrance of the her body by leaving the her body with the her mother-gu with the her mother-gu with the her mother-gu with the her mother-gus; (c) even if the Defendant’s statement was followed by the Defendant, the victim stated that the victim was unable to take her body when she did not move to the guest room, she went to the entrance of the her mother-gu with the her mother-gus. The victim stated that the victim was unable to break the her body alone (Evidence No. 150, 151 of the evidence record) and that the victim was able to take her body alone or her body alone from the time when the Defendant first discovered to the motel room, and that the Defendant also was sufficiently aware of such circumstances.

C. The Defendant asserts that, at around 04:39 on the day of the instant case, the victim had sexual intercourses with one another by mutual consent after having arrived at the telecom. However, it cannot be accepted by taking into account the following: (a) the relationship between the Defendant and the victim; (b) the background leading up to the victim’s sexual intercourse; (c) the Defendant’s statement of the Defendant concerning the situation in which the victim was sexual intercourse; and (d) the victim’s state after sexual intercourse, even though the Defendant perceived that the victim was not a normal state, it can be acknowledged that the Defendant had sexual intercourses by using

1) The Defendant and the victim did not know at all before the instant case. Nevertheless, the Defendant was drunk on the day of the instant case, and the Defendant actively told that he was able to find out the victim who was fright without proper mind. Even though the victim’s friendship D was fine, the Defendant told that he would continue to help the victim. As to the reason for actively approaching the victim, the Defendant stated in the prosecutor’s office that “the victim was frighten and wanted to do so.” (Evidence No. 150 pages of the evidence record). In light of the Defendant’s behavior and statement, the Defendant appears to have taken the victim into account sexual contact from the time of the first detection of the victim.

2) The Defendant, at the prosecutor’s office, brought a locked immediately after entering the her mother. The Defendant stated, “The Victim was locked for one hour and her part of the her part of the her body, her body and sexual intercourse with the her body.” (Evidence No. 152, 155 pages of the record), but the Defendant’s assertion that the Defendant first demanded sexual contacts to the Defendant, even if there was no particular gap between the victim and the her body and the her body, is difficult to communicate, in light of the empirical rule, it is difficult to obtain it in light of the empirical rule.

3) The Defendant, at the prosecutor’s office, went to the toilet on the day of the instant case when the victim was called “dynasium on the day of the instant case.” Gynasium stated in the toilet that “I tried to get on and off a taxi without having to hear the phone number even though I were asked to do so (Evidence Nos. 154, 158).” (Evidence Nos. 154, 158) As such, even though the victim was in a difficult situation immediately after having broken down in a gynasium, the victim seems to have immediately been in an imminent situation to escape from the taxi site.

D. As seen earlier, at the time of the instant case, the victim was in difficult to determine the normal situation, and the Defendant was well aware of such fact. In addition to the following circumstances, the Defendant may recognize the fact that the instant credit card was out of the victim’s wall, without obtaining the victim’s permission.

1) In an investigative agency and this court, the victim stated that “the instant credit card was used only through the cell phone and was contained in an off-line card, which was not used by the off-line.” The victim stated that “The victim was unaware of the fact that the instant credit card was lost until the credit card was received from the credit card company because the text message service was not disclosed.” In fact, the victim was suspected of not making a theft report, etc. even though the Defendant paid the instant credit card from the day of the instant party to September 25, 2017, and reported the fact to the police around September 25, 2017. Such behavior of the victim supported the Defendant’s failure to fully recognize that the Defendant was in possession of the instant credit card.

2) In light of the characteristics of a credit card which can be settled at any time without any specific time-limit, if the credit card was lent to the person first to use the credit card at rent, the credit card owner is in accord with the rule of experience that the method of return should be determined. However, even according to the Defendant’s prosecutor’s statement, the victim did not state at all how the credit card in this case was returned to the Defendant at any time, and rather neglected the Defendant’s proposal to inform the contact details. Such victim’s attitude does not appear to be the form of a person who lent the credit card.

3) As to the situation in which the Defendant took out the credit card from the victim’s wall, the Defendant asked the victim to bring the car from the police. However, the Defendant did not take cash on the wall, and brought the credit card in only the card. The victim stated that he was unaware of the fact that he had the credit card in this case. The victim stated that he was unaware of the fact that he had the credit card in this case, and that he was in the prosecutor’s office, that the defective victim did not have the credit card in this case." (Evidence record 33: 34) The Defendant stated that the victim was in front of the bank. (Evidence record 157 pages) and explained that the situation was inconsistent at the time (Evidence Record 157 pages). In particular, the Defendant argued that the Defendant received the credit card in the name of the victim, while asserting that he was in receipt of the credit card on the day of this case, the Defendant did not appear to have been able to pay it at the expense of the victim at around 10:415,000 on the same day immediately after arrival in Gangnam Seoul.

4) The Defendant asserts that, at the time of entering the her mother phone, the Defendant would have been in possession of the instant credit card in the process, since her friendship D used the victim’s card at the time of entering the her mother phone, the Defendant could have been in possession of the instant credit card in the process. However, such assertion is inconsistent with the Defendant’s statement at investigation agencies and this court consistent with the Defendant’s statement. However, it cannot be accepted as it does not coincide with the Defendant’s statement consistently with the Defendant’s investigation agencies and this court’

5) The victim stated that “the instant credit card was used only for settlement through F. P. F. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P.P., the victim of the crime of quasi-rape at the time of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the victim.

1. Reasons for sentencing: Imprisonment with prison labor for a period of three to forty-five years;

2. Scope of recommendations according to the sentencing criteria;

(a) The crime of quasi-rape;

[Determination of Punishment] General Criteria for Sex Offenses, Type 1 (General Rape)

【Special Convicted Person】

On December 8, 2017, the victim submitted to an investigative agency a written agreement on the agreement that the defendant and the victim agreed to commit each of the crimes of this case (the 74 pages of evidence records). However, in this court, the victim made an agreement on the fact that the victim cannot receive the amount of using the card if he/she becomes aware of the agreement at the time of investigation by the police. The agreement stated that the agreement on the amount of larceny damage is not an agreement on the crime of quasi-rape, but it is not an agreement on the crime of quasi-rape. The defendant stated that he/she would not be aware of the fact that he/she would not deny the crime of quasi-rape in this court and would be punished. The defendant also made an agreement on the part that he/she paid approximately KRW 1.8 million to the victim and paid it to him/her only on the part that used the credit card of this case (the 169 pages of evidence records), which is not an agreement on the crime of quasi-rape in this case (the 1.69 pages of evidence records), and that all the defendant and the victim did not actually agree on the amount of fraud.

[Recommendation and Scope of Recommendations] Basic Field, 3 to 5 years of imprisonment (legal minimum range of applicable sentences is higher than the minimum range of recommended sentences)

(b) Theft of judgment;

[Determination of Punishment] Types 2 (General thief) for thief in general property

【Special Convicted Persons】 Members not subject to punishment

[Recommendation and Extent of Recommendation] Reduction Area, 4-10 months to 4-10 months. Each crime of fraud is decided.

[Determination of Punishment] General Fraud (less than KRW 100,00)

[Special Convicted Persons] Where punishment is not granted or damage is recovered from a considerable part;

[Recommendation Area and Scope of Recommendations] Reduction Area, Imprisonment not exceeding one year;

(d) A violation of the Specialized Credit Finance Business Act: No sentencing criteria are set;

(e) Scope of recommendations according to the guidelines for handling multiple crimes;

Since the crimes for which the sentencing criteria are set and the crimes for which the sentencing criteria are not set are concurrent crimes under the former part of Article 37 of the Criminal Act, the lower limit of the sentencing range shall be set according to the sentencing criteria in the holding that the lower limit of the punishment is set.

3. Each of the instant crimes, the sentence of which was decided by the court below, is highly likely to have committed each of the instant crimes by: (a) having an opportunity for the Defendant to take the breath of the victim under the influence of alcohol into the telecom; (b) having stolen a credit card on the part of the victim; and (c) having obtained pecuniary benefits of KRW 6 million by illegally using the credit card on the part of the victim. Prior to the instant case, the Defendant had already been several criminal records of the same kind (Fraud) (three times of fine and one time of suspended execution). In particular, on September 14, 2017, the Seoul Central District Court sentenced the Defendant at the Seoul Central District Court for six months of imprisonment with prison labor for fraud and one week of suspended execution (one week of imprisonment with prison labor) and committed each of the instant crimes with the similar several methods that are similar to those of the Defendant. The Defendant committed a quasi-rape under the pretext of approaching the victim’s access to it, and the victim seems to have made it difficult for the Defendant to have a considerable sense of mental suffering and uncom with the Defendant’s emotional distress.

However, the Defendant’s illegal use of the credit card by the victim, and most of the acquisition of pecuniary benefits, are contrary to the judgment. Theft and the part in fraud were agreed with, or considerable damage was recovered to, the victim. Such circumstances are considered as favorable to the Defendant. Other circumstances, such as the Defendant’s age, character and conduct, environment, motive and method of, and method of, the crime, and the scope of recommended punishment according to sentencing guidelines, shall be determined as per the order, comprehensively taking into account various circumstances,

Registration of Personal Information

In cases where a conviction on each crime in the judgment becomes final and conclusive, the defendant is a person subject to registration of personal information pursuant to Article 42(1) 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 43 of the same Act. The period of registration of personal information of the defendant is 20 years in accordance with Article 45(1)2 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the gravity of a sex crime which causes the registration of personal information, the degree of the possibility of criticism and the circumstances of concurrent crimes, etc. are considered as inappropriate. Therefore, the period of registration of personal information is not reduced

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