(영문) 서울중앙지방법원 2018.7.6. 선고 2018고합240 판결

The defendant ordered the completion of sexual assault treatment programs for 40 hours.The second (2) of the facts charged in this case is not guilty of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as the "Act").

Reasons

Criminal facts

The Defendant was living together with the victim B (here, 15 years of age) and the third village, and the family members of the victim were living together from the time when the victim was born. After the divorce of the victim’s parent, the victim’s father, who is the visually impaired, brought up the victim, and the Defendant, on behalf of the victim’s father who lacks living capacity, led the victim to have sexual intercourse by force by using family relations with the victim who had no choice but to keep the victim’s horses and hear his horses.

From March 2016 to July 2016, the Defendant returned home at the Defendant’s home located in Gwanak-gu in Seoul Special Metropolitan City, Seoul Special Metropolitan City, and discovered the victim’s own sex at the victim’s home, changed the victim’s body, etc., and entered the toilet. The Defendant, a juvenile, had sexual intercourse by abusing his/her own sexual organ at the part of the victim’s body, by force, on his/her hand, after drinking the victim’s chest and closing the toilet door, tried to see his/her own sexual organ at the victim’s lower end, but the toilets did not change the victim’s body. However, the Defendant, a juvenile, was sexual intercourse by inserting his/her own sexual organ into the part of the victim’s body, by moving the victim into a lower part of the victim’s body and laying the victim’s bridge into the part of the victim’s body. This is a threat of force.

Summary of Evidence

1. Statement by a victim recorded in the victim's statement video CDs (Evidence Nos. 6);

1. An intermediary's report and statement analysis expert's opinion;

1. A criminal investigation report (to hear statements from counselors in rest);

1. Detailed reporters of missing children, etc.;

1. Photographs on the occurrence site;

Application of Statutes

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

Article 7(5) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (Selection of Imprisonment);

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

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

1. Exemption from an order for disclosure and notification;

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 defendant has no history of criminal punishment prior to the instant sexual crime, and in light of the relationship between the defendant and the victim, it is difficult to readily conclude that the defendant is highly likely to recommit a sexual crime against unspecified female. In addition, the defendant’s age, environment, family relationship, social relationship, motive for the crime, method and consequence of the crime, disclosure and notification order, the degree of disadvantage and anticipated side effects of the defendant’s injury caused by the disclosure and notification order, and the prevention of the sexual crime subject to registration, and the effect of protecting the victim, etc., it is determined that there are special circumstances where disclosure or notification of the defendant’s personal information should not be disclosed or notified. Thus, the order to disclose or notify the defendant is not issued).

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

A. The date and time of the crime indicated in the instant indictment is not specified to the extent that the Defendant can exercise a substantial defense right.

B. The Defendant did not have sexual intercourse with the victim at all. Even if it is recognized that the Defendant had sexual intercourse with the victim, the Defendant cannot be deemed to have exercised his/her power against the victim.

2. Whether the facts charged in this case are specified

A. Relevant legal principles

The purport of the law that allows the court to specify the facts charged by specifying the date, time, place, and method of a crime is to limit the scope of trial against the court and to facilitate the exercise of its defense by specifying the scope of defense against the accused. Therefore, the facts charged is sufficient to include the aforementioned elements in the indictment to the extent that it can be distinguishable from other facts. Even if the date, time, place, method, etc. of a crime are not explicitly indicated in the indictment, if it is inevitable to indicate the general facts in light of the nature of the crime charged without going against the purport of the law that allows the specification of the facts charged, the indictment cannot be deemed unlawful because the contents of the indictment are not specified (see, e.g., Supreme Court Decision 2013Do12803, Dec. 12, 2013).

B. Determination

In light of the above legal principles, the following circumstances acknowledged by the court of this case, namely, ① the date and time of the crime in this case was stated as “the period from March 2016 to July 2016,” and its scope is somewhat wide. However, given that the place and method of the crime in this case are relatively specific, it can sufficiently distinguish the facts in this case from other facts. ② Even if following the temporary statement of the facts charged in this case, there is no obstacle to double indictment or prescription of public prosecution. ③ The victim seems to have no sufficient ability to pay for time or season, ③ it seems difficult to accurately state the fact of damage at the time of the crime in this case, and to memory the date and time of the crime. ④ The defendant is not arguing about the fact that he resided with the victim at the time of the crime in this case, not about 1 year and 6 months, but about the exercise of force, it is reasonable to view that the defendant and defense counsel’s right to defense is difficult to use the facts charged in this case.

3. Whether the defendant has sexual intercourse with the victim;

A. Relevant legal principles

In determining the credibility of the statements made by the victim, etc. supporting the facts charged, the court shall evaluate the credibility of the statements made by the victim, etc., in light of all the circumstances that make it difficult to record in the witness examination protocol, including the appearance, attitude, and penology of the witness who is being sworn before and after being sworn by a judge, and the appearance, attitude, and penology of the witness who is making a statement in the open court after being sworn, and the appearance, etc. of the witness examination protocol, which are hard to record in the open court. In a case where the statements made by the witness, including the victim, correspond to the facts charged, are generally consistent and consistent with the facts charged, they shall not be dismissed without permission unless there is any separate evidence to deem the credibility of the statements made by the witness objectively and objectively (see, e.g., Supreme Court Decision 2012Do2631, Jun. 28, 2012). Moreover, where the statements made by the witness are consistent with the main part of the statements made by the witness, it shall not be denied without permission (see, 3087.

B. Determination

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this Court, the defendant can recognize the fact that he/she has sexual intercourse with the victim as stated in its holding.

Therefore, this part of the defendant and defense counsel cannot be accepted.

1) The victim stated the facts of damage in the course of the initial counseling and police investigation, and subsequently, made a relatively specific and consistent statement about the main part of the instant crime, such as the situation of the house at the time of damage, the words and behavior committed by the Defendant to the victim, the order of the crime, and the attitude of the Defendant and the victim. In addition, the victim’s statement contains natural, unique circumstances to the extent that it is difficult for the victim to take care of without direct experience.

In this Court, the victim made a relatively consistent statement on the basic facts of the instant crime.

2) The victim stated in the police investigation to the effect that he/she is not memory in some of the specific contents of the crime of this case, and in this court, the victim made a statement to the effect that he/she is not memory in any more than the police investigation. However, as seen earlier, the victim’s basic facts are relatively consistent, ② there is sufficient possibility that the victim may not accurately memory the detailed part of the crime under the age of 15 when committing the crime. ③ Sexual assault victims have a tendency to avoid memory (the victim also made efforts to keep his/her completely forgotten in the police and this court). ④ The victim’s statement at the police station was made on January 11, 2018, which was about 15 and about 6 months before the date of committing the crime, and the victim’s statement at this court was made to the effect that he/she would not be forgotten with his/her family members before the victim’s appearance, and thus, it is difficult for the victim to be summoned with his/her testimony at least 2018.6.15.6.

3) The Defendant, when the victim was a elementary school student, made it difficult for the Defendant to bring off the Defendant’s money, and thereafter, made a statement that the victim was able to take the Defendant’s desire and take sound when the victim was a middle school student (the 219th page of the Investigation Records). Moreover, the Defendant made a statement that the victim was able to take away several times, and that the victim was able to take away from that time, and that he did not have to take the width again at that time, and that he had expressed that he would not give him any big disadvantage, including criminal punishment, to the Defendant who was able to take the time when the victim was born at that time. However, under the above circumstances, it is difficult to understand that the victim made a false statement even though she could have lue the victim’s relationship with the Defendant (the 17th page of the Investigation Records), and that the victim had no choice but to have been able to take advantage of the victim’s mind that the victim was able to take food (the 2th page of the Investigation Records).

4) The defendant's defense counsel asserts that the defendant could not dismiss the defendant when the victim was aware of his/her disappearance after leaving his/her family to lead a free living outside of school and became aware of his/her disappearance.

However, the victim made a statement to the effect that it was one of the reasons why it was difficult for the victim to end the defendant after the crime of the defendant was consistently committed on the reason that he left Busan, but it was also one of the reasons why he was unable to lead school life (the 61th page of the investigation record). In light of the relationship between the defendant and the victim as seen earlier, it does not seem that the victim made a statement by referring to the false fact that the victim could suffer a significant disadvantage to the defendant for the purpose of cancelling the report of disappearance.

6) As a result of analyzing the statements made by the victim at the police, D, a statement analysis specialist, was consistent and logical, and there was no abnormal appearance that is difficult to explain due to the characteristics of the statement investigation environment, etc., the victim was relatively small and uniform, and the victim reported about the situation at the same time, and the contents of the statement were described in detail with the defendant, and there was no motive to doubt the feasibility, and the victim’s statement did not include information about time or the order of the case was not included in the victim’s statement since 2 years ago. In light of the above, the victim’s statement is a case where 2 years ago, and the victim’s awareness function is important as the recognition function is beyond the boundary line, and it appears that it is difficult to grasp the exact flow of the core words, the forward and rear context, and the situation, etc., the victim’s statement is highly credibility.

4. Whether the defendant has sexual intercourse with the victim by force;

A. Relevant legal principles

In the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, the term “compact” means a force sufficient to suppress a victim’s free will, either tangible or intangible, or intangible. It is also possible to use not only assault and intimidation but also social, economic, political status or authority of the offender. Whether a sexual intercourse with a victim by force has been committed should be determined by comprehensively taking into account various circumstances, including the following: (a) details and form of the act committed against the victim; (b) details and degree of the act committed against the victim; (c) the nature and degree of the act committed against the victim; (d) the type of the offender’s status or authority in use; (e) the victim’s age; (e) the relationship before the offender and the victim; (f) the degree of the act committed against the victim and the victim; and (e) the circumstances at the time of the crime (see, e.g., Supreme Court Decisions 2011Do7164, Jan. 16, 2013; 2013Do11815).

B. Determination

In light of the above legal principles, even if the Defendant did not exercise a strong tangible power and did not specifically resist the Defendant who attempted to engage in sexual intercourse, the fact that the Defendant has sexual intercourse with the victim by force can be acknowledged, as stated in its holding, even though the Defendant did not have a strong tangible power, in light of the following circumstances acknowledged by the evidence duly adopted and investigated by this Court.

The defendant and the defense counsel do not accept this part of the argument.

1) At the time, the Defendant was a male at the age of 25, and the victim was a female at the age of 15 at the time. 2) The Defendant, who was a male at the age of 15, was in the relationship between the victim and the victim, who was a father’s father’s father’s mother, basically followed the Defendant’s speech (the Defendant also stated that the victim was a means to listen to the Defendant’s speech (the Defendant stated that he was also the victim’s speech (the 83 pages of the investigation record)), and the Defendant was in the position to admonish the victim [the Defendant was also in a situation where the victim was the first school student, and it was difficult for the Defendant to scam the Defendant’s money when the victim was a middle school student, and made a statement that he was able to scam and have a sound when the victim was a middle school student (the investigative record No. 219 of the investigation record).

3) The Defendant stated to the effect that he had the victim wanted to drink, and that he had the frighted to drink (No. 83 pages of the investigation record), and that he had the victim want to drink. The Defendant made a statement to the effect that he failed to indicate his refusal because he had a lot of fright to drink (No. 54 pages of the investigation record).

4) In addition to the aforementioned differences in age, status, etc., the father and the father of the Defendant and the victim were separated, and the victim and the Defendant are bound to live together and continue in the same house. As such, the victim appears not to have been easy to bring an objection against the Defendant, and the victim made a statement to the same purport. In other words, the victim stated that he did not have a father's father's father's father's father's father's father's father's father's father's father's father's father's father's father's request for assistance, and that he was difficult to request the Defendant's father's father's father's father's father's father's father's consent to it (Article 54 of the Investigation Records). The victim stated that he did not refuse it

5) According to the statement of the victim, the father or Manman inside the house at the time of the crime of this case was committed by the victim's statements, and all of the births were locked, the defendant, under the influence of alcohol in a narrow toilet, refers to the victim's "I will not speak at the body," and the victim's chest after the victim's chest was satis and the toilet door was closed, and the victim was out of the victim's body and tried to insert his sexual organ behind the victim's body. This seems to be a situation sufficient for the victim to feel tension. The victim also seems to be satise of the victim's psychologically and mentally. The victim also stated that the defendant continued to memory only once the defendant stated that "I will not speak at the body," (Article 43 of the Investigation Records). The defendant's words made the above remarks by the victim seems to have been de facto tension with the victim.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] The General Criteria for the Prevention of Sex Offenses Act, Type 2 (Rape/Special Rape, etc. by Relatives Relations)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 5 years of imprisonment to 8 years

3. Determination of sentence;

In full view of the following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, various sentencing factors shown in the arguments in the instant case, such as the circumstances after the crime, the punishment shall be set as the order by lowering the lower limit of the recommended sentence according to the sentencing guidelines.

The crime of this case is deemed to have been committed by the Defendant while living in the same place as the victim of this case, in fact, and by force, committed the crime of this case. In light of the course and method of the crime, the age of the victim, the relationship between the Defendant and the victim, etc., the crime of this case is not good. The victim appears to have caused considerable mental shock and sexual humiliation, and was adversely affected by the formation of sound sexual values.

The defendant has no record of criminal punishment. The victim stated that he/she does not want to be punished against the defendant in this court. The registration and submission of personal information shall be submitted.

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, 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

The acquittal portion

1. Summary of the facts charged

The Defendant, by force, had the victim engage in sexual intercourse with the victim. From March 2016 to July 2016, the Defendant, as stated in its reasoning, laid the victim on the floor, laid off the clothes on the victim’s body at the small room of the Defendant from March 2016, and put the victim into the sound part of the victim’s body and continuously inserted the victim’s sexual organ into the victim’s sound part.

Accordingly, the defendant, by force, has sexual intercourse with a juvenile victim.

2. Determination

A. The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction is to be based on evidence of probative value, which makes a judge sure that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant is to be determined (see, e.g., Supreme Court Decision 2010Do9633, Nov. 11, 2010).

B. As seen earlier, the victim's statement about the crime of this part of the judgment of the defendant is reliable, and the victim consistently states that he/she has suffered sexual assault from the defendant once more after the crime of this part is committed. Thus, there is doubt as to whether the defendant is not committing the crime of this part of the facts charged.

C. However, in full view of the following circumstances that can be acknowledged by the evidence duly adopted and investigated by the court, the evidence alone submitted by the prosecutor alone is insufficient to acknowledge that this part of the facts charged was proven beyond a reasonable doubt, and there is no other evidence to acknowledge this otherwise.

1) The victim’s statement is the only evidence consistent with this part of the facts charged. The victim’s statement concerning this part of the facts charged is lacking consistency as follows.

① The victim made a statement to the effect that he did not memory as to this part of the facts charged in this court, and stated that the part which was relatively clearly stated in the police investigation was not memory. In other words, the victim stated in the police investigation that he was in existence at the time of committing the crime indicated in this part of the facts charged, and that he was sexual intercourse (as to the defendant, 53 pages of the investigation record), although he made such talk, he did not memory as to whether he was said to have sexual intercourse at the time of the police investigation, but in this court, he stated that whether he was inserted his sexual organ into the victim’s sound book (as to the record of the examination of the witness, 12-13 pages). In addition, at the police investigation, the victim stated that at the time of the police investigation, the defendant did not have a circumstance, and that the victim had a sexual intercourse with the victim’s attitude at the time of the first time, and had a sexual relation with the victim’s attitude changed (as to this court, 51) and the record of the witness examination was not recorded (as to this court).

② In this court, the victim stated that he did not memory as to this part of the facts charged as above, but stated newly that he did not mention in the police investigation. In other words, in the police investigation, the victim stated to the effect that he inserted her fingers on the chest of the victim in addition to dancing (No. 49-50 pages of the investigation record). However, in this court, the victim stated that he was aware of the victim's child at the time when the defendant was the small part of the victim and the defendant was the victim. After that, the victim stated that she was unable to reject the defendant's sexual organ because she was the only part of the defendant's sexual organ and that she was only the defendant's sexual organ as the victim did (No. 12 pages of the examination record of the witness).

2) From the police investigation, the victim made a statement to the effect that the part of the facts charged in this part of the facts charged is not completely erasedd (No. 48-49 of the investigation record). The victim made a statement to the effect that he was only aware of his memory when he golded from his match (No. 51 of the investigation record). However, the victim was demanded not only the police investigation but also the police investigation to continuously leave his memory at the time in this court, and the victim appears to have made a statement of some contents. Thus, the possibility that the victim made a statement in the direction or exaggeration of the situation or made a statement of memory mixed with other sex-related experience cannot be ruled out.

3. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, and thus, it is so decided as per Disposition with the decision of not guilty pursuant to the latter part of Article 325

Judges

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

Note tin

1) During the police investigation, the victim responded to the following: “Fish, Ga, Ga, and Ga Ga ? at any time during spring, summer, Ga ?” the victim asked “Fish, B, and B ?”

Accordingly, the author asked “I am the same as “I am in the case of July? I am? I am not in this degree?” (Article 54-5 of the Investigation Records). In addition, the victim is the victim.

"저녁은 언제를 말하는 것일까?"라고 묻자 "그냥 다 껌껌하고 어두울 때?"라고 답하였고, 이에 "그러면 껌껌하고 어두울 떄보

C. At the latest, I asked "I am to see that I will be able to do so?" (I am to see that I am to see it?)

(i) the Party;

2) The victim is too far away from this court’s question as to whether there is a specific memory when sexual assault is committed in the small room.

I know whether it is or not it is well known that it is not memory," (the recording paper of the witness examination, No. 10);

3) The victim’s money prepared a written application to the effect that the Defendant did not have committed the instant crime (No. 206-208 pages of the Investigation Records),

The victim does not want to be forgotten in this case until the money in this court continues to be asked for this case. The victim's sexual bomb from the defendant

In addition, the victim stated that he did not have the power (the third page of the record of the witness examination). In addition, the victim is punished by the defendant in this court.

I explained that he does not want to be punished by the defendant and answer to questions whether he or she does not want to be punished by the defendant by taking account of money or other family members.

We stated that it is difficult (the fourth, 18-19 pages of the witness examination record).

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제7조 제5항

-아동ㆍ청소년의 성보호에 관한 법률 제21조 제2항

-아동ㆍ청소년의 성보호에 관한 법률 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제50조 제1항

참조판례