2013No340 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.);

Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Quasi-rape)

2013Electric No. 39 (Joint Attachment Orders)

A

Defendant and the respondent for attachment order

Kim Jong-Un (Court of Prosecution) and Park Jong-chul (Court of Justice)

Attorney B

Busan District Court Decision 2012Da1227, 2012Na41 (Consolidated) Decided June 14, 2013

Judgment

December 12, 2013

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of innocence against the accused shall be published.

The request for the attachment order of this case is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

Although the defendant and the person subject to the request for attachment order (hereinafter referred to as the "defendant") did not have sexual intercourse with the victim by taking advantage of the victim's failure to resist at each time stated in the facts charged of this case, the court below found the defendant guilty of all the facts charged of this case. The court below erred by misunderstanding the facts

B. Unreasonable sentencing

In light of the various sentencing conditions of the instant case, the sentence imposed by the lower court (six years of imprisonment, 160 hours of sexual assault treatment proms, 6 years of disclosure and notification order) is too unreasonable.

2. Part of the defendant's case

A. Summary of the facts charged

As the result of the inspection of "D" in Busan Dongdong-gu, Busan, the defendant is widely known to the inspection of "F" in "F in the Gu of Dong-gu, Busan, and the victim's gambling ○○ (M, 17 years old) was allowed to enter the inspection according to the victim's mother, who was the victim's mother, such as the above D and F as soon as possible, since around 5-6 years ago.

The Defendant, as a believers of the foregoing temple, was highly strong for the Defendant’s trust, and entrusted the Defendant with the culture and treatment of the victim who was going out of Korea at the time. Therefore, even if the victim commits an indecent act or rape, the victim did not believe it even if the victim did not report damage to G, and did not believe it even if the victim committed an indecent act or rape against the victim, and committed an indecent act against the victim by using the victim’s chest as his hand for about two years and six months from the beginning of the early of 2010 to the end of November 2012, around two years and six months from the beginning of 2012.

1) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.)

On August 8, 2010, the Defendant: (a) had been divingd on the side of the above D (15 years old at that time) and had sexual intercourse once with the victim by reporting rape; (b) having been under the victim’s seat; (c) having been spanched on the victim’s body; and (d) having panty and panty panty spanty, which was spanched by the victim; and (d) having been sexual intercourse once.

Accordingly, the defendant has sexual intercourse once with the victim using the victim's failure to resist.

2) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (rape-rape, etc.)

At around 02:00 on November 17, 2012, the Defendant got the best treatment from the above F, with the mind of reporting the victim (at that time, 17 years of age) who was diving, and tried to rape. The Defendant exceeded 17 years of age, laid off the victim’s body, laid down the victim’s body, laid down his sexual organ under the part of the victim, and had sexual intercourse once with the victim.

Accordingly, the defendant has sexual intercourse once by taking advantage of the victim's inability to resist.

B. Judgment on the defendant's assertion of mistake of facts

1) The burden of proving the facts charged in a criminal trial is to be borne by the public prosecutor, and the recognition of the crime is to be based on the evidence of probative value, which makes the judge feel true enough to have no reasonable doubt. Thus, if there is no such evidence, even if there is no doubt as to the defendant's guilt, it shall be determined with the benefit of the defendant even if there is suspicion as to the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2008Do4467, Jul. 24, 2008).

2) Direct evidence of the facts charged in this case is the only statement at the investigative agency of the victim and the court of the trial. The main contents are as follows.

A) Statement at the police on November 25, 2012

With respect to the crime of early August 2010, the victim was locked around the beginning of August 2010, and the body was shakened by shakeing the body of the victim around the beginning of August 2010. The victim was suffering from boom, and the defendant was off. The victim was off, and the defendant was off. Since the victim was her boomed, the victim was her boomed to the defendant, so the defendant was under the supervision of the defendant.

2012. 11. 17. 범행 관련 : 피해자는 2012. 12. 16. 밤 10:00경부터 뜸치료를 받고 잠 이 들었는데 2012. 11. 17. 새벽 2:00경 몸이 흔들리는 것 같아 잠에서 깼다. 피해자는 똑바로 누워 자고 있었는데 피고인이 피해자의 몸 위에 있었다. 피해자가 눈을 떴을 때 피고인은 상체를 세우고 있었고 피해자에게 하고 있었다. 피해자가 욕을 하면서 몸 을 옆으로 돌려 누워버리자 피고인은 옆 방바닥에 누워 잠을 자는 척 했다. 피고인이 삽입을 해서 피해자의 몸이 흔들린 것이다. 피고인이 사정을 하지는 않았고 서지도 않 았던 것 같다. 피해자의 성기에서 피고인의 성기가 빠질 때 흐물해진 상태여서 그것을 말하는 것이다. 이후 잠을 자는데 피고인이 피해자의 몸을 만져 잠을 깨기도 했고 피 해자의 손을 가져다가 피고인의 성기를 만지도록 하여 몇 번 잠을 깼다 .

B) Statement at the police on November 28, 2012

In relation to the crime of early August 2010 when the victim was sexually sexually in the beginning of August 2010: The victim was satisfed by the defendant's body because of the fear that the victim was sexually sexually having been sexually sexually sexually around the beginning of August 2010. The victim was in a state that he was living in the body of the defendant. The defendant was satisfing the body of his hand on the floor in which he was satisfing, and his face was satisfing, and his face was inserted. The same was completed for about five minutes. For about five minutes, the victim did not express his intention, and the victim was locked, and the defendant was satisfing back, and the defendant was satisfing in the future. Whether or not there was any circumstance that the victim was sexually satisfing.

On November 17, 2012, the victim : around 2:00 a new wall on November 17, 2012, 2012, the victim diveddddded the victim's fingers into and out-to-door movement by inserting the victim's sexual organ. The victim 2-3 minutes away from the victim's sexual organ, resulting in the victim's sexual organ, bringing the victim's hand to the Defendant's sexual organ, again, he saw the Defendant's hand into the victim's hand. At that time, the victim took a bath to deduct the victim's hand, and she was unable to take care of the victim's hand. The reason is that the Defendant brought the victim's hand to the victim's sexual organ after completing the sexual act, and the victim's sexual organ was not considered to have taken to have taken place during the period of the victim's sexual organ. The reason is that the victim's patch was not caused by the removal of the victim's body.

C) Statement at the court of first instance on November 28, 2013

2010년 8월 초순경 범행 관련 : 당시 피고인의 성기가 삽입되었는지 지금은 잘 기억나지 않는다. 피고인이 피해자의 몸 위에 올라와 양손을 방바닥에 짚어 몸을 지탱 하고, 얼굴이랑 상체는 세워져 있는 상태로 왔다 갔다 하면서 성행위를 하고 있었던 것은 맞다. 삽입한 뒤에 잠에서 깼다. 피해자가 잠에서 깨 피고인에게 뭐하는 짓이냐고 항의를 했다.

On November 17, 2012, 2012: The victim was her side, but the defendant inserted her sexual organ into the rear side of the victim. The mother of the victim also was F at night on November 16, 2012.

3) The above victim’s statement appears to be consistent in that the Defendant had sexual intercourse with the victim when the victim was in a temple operated by the Defendant on August 2010 and August 17, 2012. However, in light of the following circumstances, the victim’s statement as to the facts charged of the instant case is difficult to believe it as it is in its entirety.

A) As to the first police officer of August 2010

① In the court of the first instance, it is difficult to easily understand that: (a) the prosecutor made a statement in the court of the trial that ‘not to memory’ whether or not the prosecutor inserted; (b) the answer was based on the premise that the insertion was inserted; and (c) it was somewhat time from the time of committing the crime, but it is difficult to easily understand that the memory is not made.

1. ② At the time, the statement was made at the first police station that the victim was broken to the defendant, thereby making the defendant known, but at the time of the second police station’s statement, at the time of the 2nd police station’s statements, the person was faced with 5 minutes of the lock, and the statement is not consistent because the victim made the statement to the effect that the lock seems to have been broken down and followed after the locking.

B) As to the crime on November 17, 2012

① The police stated that the Defendant was inserting the Defendant’s sexual organ above at the victim’s body, and at the court of the trial, the Defendant reversed the Defendant’s statements that he inserted his sexual organ behind the victim’s body and did not answer any question of the presiding judge’s reasoning for the return of the statement.

② The first police statement stated that when the defendant made a statement at the police station when he made a statement, the defendant had been faced with her gender when she got her gender after subtracting her gender organs, when the second police statement was made by the defendant, she was in a solid condition when she became the victim's sexual organ by hand, and stated that she was in a solid condition when she got the victim's sexual organ by her hand, and that the defendant's sexual organ was taken by the victim's hand. However, even at the time of the first police statement, it is difficult to obtain the grounds for the reversal of the statement even when she made the first police statement.

C) Other circumstances

① Although the victim is a juvenile under 18 years of age (17 years of age at the time of making a statement in an investigative agency), the victim is difficult to conclude that the victim’s statement was due to the limit of expression due to lack of experience, in light of the fact that the victim has experience in having sexual intercourse with the male-gu and several times between August 2010 and November 17, 2012 (the victim’s investigative agency and the court below’s statements).

② In light of the following circumstances acknowledged by the statements at the court of first instance at the victim’s trial, there are some doubts about the circumstances of the instant complaint.

In August 2010, the mother of the Defendant’s new school with a son’s friendly relationship with the Defendant at the inspection run by the Defendant, she had the victim her return to the inspection while going through the inspection operated by the Defendant, and she had the victim end up the inspection at the inspection, and she had the victim go through the inspection. Since August 2010, 2010, the victim did not refuse to go to the inspection, and she did not want to go to go to the inspection by her sexual indecent act from the Defendant, but she did not wish to go to go to the inspection by her mother but continued to go to the inspection without any choice to believe the victim’s opinion. On November 20, 2012, the victim knew that she was sexually victimized by the Defendant, and she did not go to the inspection, and she did not go to the inspection by her mother before she talked about the fact that she was sexually damaged by her mother, she did not go to the Defendant’s school.

4) As seen above, insofar as the victim’s statement is not reliable, the victim’s statement was transferred to the victim’s room, and it was fit for them to have been sexually committed by the Defendant, and there is insufficient evidence to acknowledge the facts charged in the instant case, and there is no other evidence to acknowledge the facts charged, the Defendant’s allegation in the grounds of appeal disputing the prosecutorial office of this case is with merit.

3. Part of the attachment order case

As long as the defendant filed an appeal on the part of the judgment below regarding the defendant's case, it is deemed that the part of the claim for attachment order has also been filed pursuant to Article 9 (8) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

As examined earlier, inasmuch as the accused case is found not guilty on the ground that there is no proof of crime, the request for the attachment order of this case shall be dismissed, and this part of the judgment of the court below shall be reversed in its direct authority.

4. Conclusion

Since the appeal by the defendant is well-grounded, pursuant to Article 364 (6) of the Criminal Procedure Act and Article 9 (4) 2 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the judgment of the court below is reversed and the following is ruled again through pleading.

Summary of Facts charged

The above 2. The entry is as follows.

Judgment

As seen in the above 3. In the event there is no proof of criminal facts, the facts charged in the instant case shall be pronounced innocent pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the resolution of the board of directors shall be publicly announced pursuant to Article 58(2

Summary of the cause of attachment order

As stated in the above facts charged, the Defendant committed a sexual crime against a person under 16 years of age, and ② commits a sexual crime on two or more occasions, and is recognized as a habitive wall. Also, there is a risk of committing a sexual crime.

Judgment

Since the facts charged of this case against the defendant constitute a case where there is no proof of crime and thus the defendant is acquitted, the request for the attachment order of this case is dismissed pursuant to Article 9 (4) 2 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders.

Kim Jong-cheon (Presiding Judge)

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