(영문) 서울고등법원 2018.08.17 2018노156 | 리걸엔진

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줄 간격

자간(%)

(영문) 서울고등법원 2018.08.17 2018노156

준강간

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The prosecutor's appeal is dismissed.

Reasons

1. The summary of the grounds for appeal did not have a close relation with the Defendant and the victim, the victim spashing alcohol significantly exceeding the main volume, and the victim was unable to do normal behavior to the extent that he can sit on the floor of the road immediately before entering the telecom.

Since the victim had sexual intercourse with the victim after the victim discussed the victim, the victim is merely memorying the situation in the process, but recognizing the state of normal condition while recognizing the state of sexual intercourse, rather than recovering the situation where the physical stimulation has been harmed due to the defendant's indecent act, etc., so it can be recognized that the victim had a physical and mental loss state, and the defendant has sexual intercourse with recognizing the above situation.

Nevertheless, the judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous.

2. Determination

A. In full view of the evidence duly admitted and examined by the lower court, the lower court determined that the evidence submitted by the prosecutor alone was insufficient to recognize that, in light of the following facts and circumstances, it was insufficient to recognize that, at the time of the instant case, the injured party was sexual intercourse with the victim under the influence of alcohol due to the following: (a) the victim was under the influence of a man-child-friendly drinking H, who was on the drinking place with the Defendant; (b) the Defendant took the victim into the care of his wife; and (c) the Defendant attempted to engage in sexual intercourse with the victim at that place; and (d) the Defendant was under the influence of cleaning the earth and sand of the victim under the influence of alcohol; and (b) the Defendant was unable to resist at the time of the instant case; or (c) the Defendant had sexual intercourse with the victim with the intent of quasi-rape while recognizing the same.

(1) The aggrieved person shall apply to the original judgment from an investigative agency.

유사 판례

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