2017Mahap1202 Rape, a special injury (a disease recognized as a crime), intimidation, assault

A

Kim Ho-young (prosecution), Gangwon-gu (Public trial)

Law Firm Ook, Attorneys Yang Dong-min, and Kim Training

June 4, 2018

A defendant shall be punished by imprisonment for one year.

In the facts charged against the accused, the charge of rape shall be acquitted. The summary of the judgment on the acquittal shall be published.

Criminal facts

From the end of September 2016, the relationship with the victim B (the family name, the female, the age of 18) has deteriorated as it is doubtful about the relationship between the victim and the family member of the workplace from the end of September 2016.

1. Violence around November 2016;

On January 1, 2016, the Defendant assaulted the victim by getting the victim off, getting the victim off, getting the victim off, getting the victim her getting off, getting the victim her getting off, getting the victim back, going back to the back, etc. on the alleyway near D in Dongjak-gu Seoul Metropolitan Government.

2. Violence around December 2016;

On December 2, 2016, the Defendant, at a parking lot near Gwanak-gu in Seoul Special Metropolitan City, where it is difficult to know the trade name, was frightened by the victim on the ground that the victim was frightened and frightened, and the victim's arms were frighten, leading the victim's arms to the victim, leading the victim's arms to the victim so that the victim could not request the assistance, and assault the victim when 10 times by hand the victim's frighten in the wall of the parking lot.

3. Intimidation.

At around 23:30 on February 2, 2017, the Defendant: “Around 23:30, the Defendant made phone calls to the victim F and made a doubt about and dispute about the male relationship of the victim, and threatened the victim by saying, “The victim, who was demanded by the victim to take a hedging, who is not a self-refluent, died of his parents, who is a defluent, his parents, who is disfluent in his/her mother’s house, and discarded his/her fluent image, who is fluent of his/her sexual intercourse, shall be sent to his/her parents, and may come to G.”

4. Injury;

At around 01:30 on February 3, 2017, the Defendant, at the Defendant’s house located in the Gwanak-gu, Seoul Special Metropolitan City E-building H, and at the Defendant’s house located in paragraph (3), “it is good to put up a scam.” The Defendant called “to cover the scam. if she wishes to live,” and then, she scam the body of the victim, such as the arms and legs, etc. that scamed by scambling the scam on several occasions, and scam off the scam with the scam of the victim’s head and scam for about 14 days to the victim.

Summary of Evidence

1. The defendant's legal statement (or partial statement in court);

1. Legal statement of the witness B;

1. The prosecutor's statement concerning B;

1. Report on internal investigation (No. 2), victim's name photograph (No. 12), investigation report (no. 20 concerning the contents of the message recovered from the victim's mobile phone), message (no. 20), and message (no. 21)

[The defendant and his defense counsel asserted that the degree of damage of the victim cannot be seen as the injury of the victim.According to the medical certificate of injury (Evidence No. 9 pages), the victim suffered from the two parts of the victim, cerebral and brain salvines, salvines, salvines, salvines, salvines, salvines, and salvines, and doctors diagnosed that the victim's 's tensions and salvines by external force above the above 'the possibility of ordinary activities' is expected to be a little inconvenience. Furthermore, the victim's photo photographs (Evidence No. 12 of the evidence list No. 12) appears to have been taken on February 6, 2017. In full view of the content of the type of force used by the defendant, the scope of salvies and the description of the medical certificate of injury, etc., the degree of damage of the victim falls under the application of statutes that harm the complete physical function.

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

Article 260 (1) of the Criminal Code (the point of violence), Article 283 (1) of the Criminal Code (the point of intimidation), Article 257 (1) of the Criminal Code (the point of injury) of the Criminal Code, the choice of each imprisonment penalty.

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment prescribed for the most severe injury)

1. The grounds for sentencing: Imprisonment with prison labor for a period of one month from January to June 10.

2. Scope of recommendations according to the sentencing criteria;

(a) Crimes of assault;

[Determination of Punishment] Aggravation of Violence 1 (General Violence)

[Special Sentencing] The motive of committing a crime that may be criticized (other than type 7)

[Scope of Recommendation] Imprisonment of four months to one year

(b) Intimidation;

[Determination of Punishment] Aggravated Punishment of Terrorism (General Intimidation)

[Special Sentencing] The motive of committing a crime that may be criticized (other than type 5)

[Scope of Recommendation] Imprisonment from April to June

(c) Bodi injury;

[Determination of Punishment] In general injury area of category 1 (General Injury)

[Special Sentencing] The motive of committing a crime that may be criticized (other than type 4)

[Scope of Recommendation] Six months to two years of imprisonment

(d) The scope of final sentence according to the standards for handling multiple crimes;

- From 6 months to 3 years of imprisonment (2 years to 9 months + 4 months);

- The sum of 1/2 and 1/3 of the upper limit of the sentence range of the crime of intimidation, which is the basic crime, is the highest among other crimes, and 1/3 of the upper limit of the sentence range of the crime of intimidation, which is the highest among the two crimes, respectively.

3. Determination of sentence;

The victim used multiple unilateral violences against the victim, who was the victim, and the victim believed the defendant and made intimidation using the video images that allowed the victim to take pictures. The relationship between the victim and the victim is merely the relation between equal personality, not the relation controlled or owned by one party, and the act of violence cannot be justified for any reason. The violence committed on the ground that the defendant was a chain is not only a physical suffering of the victim, but also a crime committed by the victim for his own personality and self-esteem, which is highly likely to be subject to criticism. The victim complained for a severe punishment against the defendant while suffering from mental suffering, and the victim’s intent cannot be considered as important in light of the nature of the crime in this case.

However, the defendant has committed a mistake in the confession of the facts of crime in the judgment.In addition, the facts that there is no criminal record should be considered as favorable to the defendant, and the defendant's age, character, character, environment, family relationship, motive, means and consequence of the crime, etc. shall be comprehensively considered, and the punishment shall be determined as ordered by the order, taking into account various sentencing conditions stipulated by Article 51 of the Criminal Act,

The acquittal portion

1. An special injury:

A. Summary of the facts charged

The Defendant: (a) stated the date and time stated in the crime No. 4 of the judgment; (b) and at the place of the crime in the judgment; (c) the sick machine (68cm in length, 3cm in diameter), which is a dangerous object; and (d) the victim’s body, such as the arms and legs, etc., that is, the victim’s body that followed the sprink in a variety of times, was sprinked, and walked with the victim’s body, such as the sprink and bridge, that is, the victim’s head and sprinks, which are dangerous objects (3cm in length). (c) The Defendant inflicted injury on the victim, which requires approximately 14-day medical treatment on the part of the victim.

B. Relevant legal principles

The danger of "hazardous objects" under Article 3 (1) of the Punishment of Violences, etc. Act shall be determined depending on whether or not the other party or the third party may cause danger to death immediately in light of social norms, considering various circumstances such as the nature and form of the object in question as well as the method of assault by using the object in question, the part and degree of assault, the relation between the offender and the victim, and the circumstances at the time of the act, etc. (see, e.g., Supreme Court Decision 9Do1496, Jun. 11, 199). The risk of "hazardous objects" should be determined depending on whether or not the other party or the third party may cause danger to death, in light of social norms (see, e.g., Supreme Court Decision 9Do1496, Jun. 11, 1999); as well as the knife, silver, glass disease, various tools, automobiles, etc. made for other purposes as well as if they were used for harm to human life and body.

C. Determination

In light of the following facts and circumstances, the evidence examined by this court is insufficient to acknowledge that the victim’s statement alone was injured by the enormous agent, a dangerous object, and the head of the victim’s head several times, and there is no other evidence to prove otherwise.

① As to the assault under covering, the victim made a statement that he/she would know about what he/she did not appear when he/she had at his/her own time under the covers of the imprisonment at the investigative agency (Evidence No. 471). The victim made a statement that he/she covered his/her imprisonion in this court, but the victim made a statement that he/she had covered his/her imprison, but the statement in the above investigative agency and the victim covered the imprison on the imprison, it is insufficient to recognize that the above legal statement alone was made when the victim was a imprisoned.

② 이불을 벗은 다음의 폭행에 관하여, 피해자는 수사기관 및 이 법정에서 피고인이 이불을 덮어쓴 상태에서 자신을 한참 때린 다음 일어나 앉게 하고는 마주 앉아 이야기를 하면서 대답을 제대로 하지 않으면 쇠파이프로 머리를 때렸다고 진술하였다. 피해자는 경찰에서는 '맞으면 쓰러지게 되고 앉아 있으면 누워지게 되고 다시 쓰러지게 되고...' 라고도 진술하였다(증거기록 27쪽). 그런데 피해자는 머리에 외상이나 큰 상처가 없는 이유에 관해 검찰에서는 쇠막대기로 세게 내리친 것은 아니라고 진술하였고(증거기록 471쪽), 이 법정에서는 이야기하는 과정에서 머리를 톡톡 친 것이라고 진술하였다. 위와 같은 피해자의 진술 내용과 발생한 상해의 정도 등에 비추어 보면 이 부분에 관한 피해자의 수사기관에서의 진술은 다소 과장된 것으로 보인다.

③ 문틀에 고정하여 철봉으로 사용하는 철제 막대기는 폭행에 사용될 경우 '위험한 물건'에 해당할 여지가 충분하다. 그러나 앞서 본 사정들에 비추어 볼 때 피고인은 피해자와 마주 앉아 이야기 하면서 철제 막대기로 머리 부분을 몇 차례 톡톡 친 정도인 것으로 보이는 점, 실제 피해자의 머리 부위에 외상이나 심각한 상해가 발생하지는 않은 점(피해자가 입은 두부 타박상 및 뇌진탕이 철제 막대기로 맞아서 생긴 것이라고 단정하기도 어렵다), 그 후 피해자가 피고인에게 다정한 내용의 메시지를 보내기도 한 점(증거기록 251, 252쪽) 등을 종합하여 보면, 이 사건에서 위 철제 막대기가 피해자에게 살상의 위험을 느낄 수 있는 정도의 '위험한 물건'이었다고는 보이지 않는다.다. 결론

Thus, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of facts of crime. However, since the above facts charged contain the injury crime of the judgment that found the above guilty, the judgment of

2. Rape;

A. Summary of the facts charged

Around 02:00 on February 3, 2017, the Defendant: (a) sought a reconciliation by sitting a frighter at a place specified in paragraph (4) of the crime in the judgment; (b) requested the victim to have a sexual intercourse; (c) the victim refused to compromise and have a sexual intercourse, and (d) led the victim’s arms, which the victim wanted to leave, to be called “satisfe at all times, whether it is a satus?” and (d) the victim’s arms, which the victim want to leave, are moved back to the room; (c) refers to a video taken of the sexual intercourse with the victim; and (d) “patch will not be taken without a weapon, and spread the same image if it is governance,” and raped the victim with the victim who was unable to resist.

B. Determination

In light of the following facts and circumstances acknowledged by the evidence examined by this court, it is difficult to believe the victim’s statement that corresponds to the above facts charged is true, and there is no other evidence to prove that the defendant committed rape by threatening the victim.

① On February 14, 2017, the victim made a statement about the injury caused by rape at the time when the police first made a statement about the injury caused by rape, such as special injury, intimidation, and carmera. If the victim stated that the victim’s statement that he/she forced sexual intercourse from this court that he/she was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually.

② Even after having been raped, the victim sent a multilateral message to the Defendant (Evidence Nos. 251, 252). The victim also stated that the victim was raped on February 3, 2017, and on February 5, 2017, at the Defendant’s home, that the victim was sexual intercourse with the Defendant. Although the victim did not want sexual intercourse at the time, it was probable that the victim could not actively refuse the demand of sexual intercourse by intimidation and assault. However, in light of the fact that the Defendant had exercised multiple violences against the victim in the past, it is difficult to avoid the possibility that settlement and agreement would have been made after the assault and that the victim had sexual intercourse with the Defendant.

③ At the prosecution, the victim was off the clothes of the Defendant, who was off the clothes of the Defendant, and the suspect was satisfing and satisfing. The victim himself was satisfing. The refusal to do so was merely a satisfying (Evidence No. 472, 473). The victim appears to have not clearly expressed his intention of refusal in the process of sexual intercourse. In light of the aforementioned circumstances, it is difficult to view that the Defendant was aware that he had sexual intercourse against the victim’s will.

C. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced under Article 58(2

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young