(영문) 서울중앙지방법원 2019.5.9. 선고 2018고합574 판결

On July 2016, the Defendant: (a) around 15:00 between the horse 15:0 and the subway 9 lines located in the main Dong of Dongjak-gu Seoul Metropolitan Government, provided meals with the victim in the subway 9 lines; and (b) provided the victim with a drone at the location of the victim, and (c) provided the victim with a rare personal data inside the apartment parking lot at the location of the victim but requested a sexual intercourse; (d) provided the victim with his arms, and reported the wall to the victim; (c) cut off the victim’s will and clothes to prevent the victim from being frighted; and (d) took off the part of the victim’s body with the victim’s flick, and flicked the victim’s sexual organ into the part of the victim’s sound.

2. A crime committed on December 2016;

The defendant, around 15:00, around the end of December 2016, will resolve the conflict with the victim with the family-friendly D.

00 also 00 Do 00 Do 20, 100 Do 201, 200 Do 201, 2010 Do 201, 2010 Do 20, 201, 2010 Do 20, 2010 Do 20, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 201, 30,00,00,00,00).

| 판단

1. Relevant legal principles

In order to establish the crime of rape, the perpetrator’s assault and intimidation must be such as to make it impossible or considerably difficult for the victim to resist, and whether the assault and intimidation were to make it impossible or considerably difficult for the victim to resist, shall be determined by comprehensively taking into account all the circumstances, including the content and degree of the assault and intimidation, the developments leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse, etc. (see, e.g., Supreme Court Decision 2006Do5979, Jan. 25, 2007).

2. Examining the following facts and circumstances revealed by the evidence duly adopted and examined by the court regarding the instant case in light of the legal principles as seen earlier, it is difficult to view that the evidence submitted by the prosecutor alone proves that the Defendant had sexual intercourse with the victim by assault or intimidation to the extent that it would make it impossible or considerably difficult for the Defendant to resist the victim.

① The facts charged on assault and intimidation committed by the Defendant at the time of the two or more crimes are as follows: (a) the Defendant set up a arms of the victim, set up a wall, and cut down the son’s son, cut the son’s son’s son and clothes, cut off the son’s son’s son and the son’s son’s body, cut off the son’s body, and raped the victim with the son’s son’s body by force (the crime was committed around July 2016) or her son’s son’s son’s son who want to come out of her body, cut off the son’s son’s son’s body and the son’s clothes, reported the son’s son’s son’s son’s wall and the son’s son’s son’s son’s son’s wall, cut out the son’s body, and made the victim familiar with it (the crime committed around December 2016).

Statements made by the police of the victim and by this court also conform to the above facts charged.

Even if there is room to regard the defendant as having sexual intercourse with the victim by exercising the force of force against the victim's will, it is not clear in the facts charged alone as to the fact that the victim has come to the extent that it would be significantly difficult for the victim to resist by exercising the force of force.

② Although the place of the instant crime is open to the outside of the apartment parking lot, many people could easily leave the place. The time of the instant crime appears to have been difficult for the Defendant and the victim to exercise sexual assault when the Defendant and the victim share a large amount of sound at 3 p.m.

③ Around March 2016, the Defendant and the victim came to end with the school system for about one month. The victim stated, at the police’s request, that “A sex relationship between the Defendant’s house and the parking lot, which is the place where the instant case occurred, has been entered into by agreement once.”

④ On October 22, 2016, the Defendant and the victim received text messages on July 2, 2016 (Evidence No. 155 to 158) (Evidence No. 155 to 158). Examining the content thereof, the victim’s misunderstanding into the Defendant’s wrong 1) and criticizes the Defendant, and obsing the Defendant. The victim appears to have a relationship that it is difficult to deem that he/she thought that he/she had committed the crime, and that he/she could talk about the complaints.

⑤ At the time of the crime around July 2016, the victim stated at the police that when the defendant was exempted from the cellphone, the victim would have reported that he would have brought a Handphone to the defective horse Defendant in order to report by taking the Handphone, and that he would have reported if the defendant had a Handphone in the crime on December 2016. However, the victim did not report that he was subject to sexual assault immediately after the two times.

6) On January 2, 2016, the victim thought that he was pregnant as a policeman on the first day of 2017, which was after the crime, around December 2016.2), the victim appeared to have been pregnant, and the defendant thought that the defendant was able to avoid the responsibility for pregnancy, and that the defendant was forced to report on the defendant, and that the defendant was forced to recognize that he was forced to have sexual intercourse (Evidence No. 119, No. 158-161, No. 27,28). The victim sent a text message, "I am dead," and the defendant sent the victim a text message (Evidence No. 117, No. 117).

However, the victim or the defendant does not seem to have accurately understood the legal meaning of assault and intimidation in the course of the crime of rape and received the above text messages, and it is difficult to view the content of the above text messages as genuinely recognizing the coercion of sexual intercourse.

7. At a school where the victim was the victim, the question was that the victim was pregnant by having a sexual intercourse with the Defendant, and around March 2017, the case was reported to the police after interview with the son and the father of the son.

피해자는 이러한 소문들로 큰 정신적 고통을 받은 것으로 보이고 학교생활에 어려움을 겪었다. 피해자는 피고인이 주변에 이야기하고 다녀 소문이 퍼진 것으로 생각하여 2017. 3. 21. 피고인에게 '니 내얘기 어떻게하고 다니냐', '그냥 사과받고 신고안 해줬으면 그냥 조용히 내 얘기 안하고 살면 안됨?', '아 또 내가 E보냇다고 다 캡쳐해서니 여자친구한테 싸질를까?', 'ㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋ 오래가고 제발 니 때문에 나 피해보게좀 만들지좀마'라는 문자메시지를 보내기도 했다.

On the other hand, at the time of each of the crimes in this case, the victim stated that the police continued to think of the situation, and that it was no longer difficult to think of the situation since he had to continue to think of the situation, and that the victim stated that "any think I would like to be why you would be why you would be why?"". In addition, the victim stated that there was no intention to punish the defendant from the investigation stage.

In full view of these circumstances, it seems that the victim only talks about the fact that the defendant was sexually related to him and did not have a malicious opinion on the crime of this case itself.

9. On April 8, 2018, the victim sent text messages to the Defendant with the fact that the Defendant was not examined by the police on the basis of the victim’s report, and then sent text messages to the Defendant by July 2018, including sending the victim’s neighboring pictures, and asking the victim’s inner part, etc. on several occasions (Evidence 1) and the victim’s relation between sexual assault and the perpetrator is deemed as an exceptional situation.

피고인 '먼데', '뭐가 미안하다는겨피해자 '그냥 어', '전부다^^?"(중략)피고인 '그럼 먼데 어떤건데 미안하다는거여’피해자 '그냥지난일 미안하다고 '너한테 사과한적 없는거같아서피고인 '그러냐 난 도대체 무슨 말인지 머르겟는데 일딴 미안하다니 알겠어 ㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋ'피해자 '왜무슨일인지 모르지', '너나 때문에 경찰서듀 갓다왓잔아...', '아니 약햇어? 왜모르지?"피고인 '아 그거였어??', '근데 그걸 왜 니가 미안해해 ㅋㅋㅋㅋ’피해자 '아니ㅋㅋㅋㅋㅋ,ㅋ,ㅋㅋ EEEㅋ', '그냥 너한테 미안하단말 해야될거 같앗는데 그래서 F랑 만낫을때할려햇는데'피고인 '내가 잘못을햇으니 내가 신고먹고 갓다온거지’, ‘그르냐'피해자 '타이밍못잡아서 극대 못햇엇어가꼬'피고인 '짜피 지난일인데 멀 신경써'피해자 '그냥 언젠가 한번은 미안하다고 해야될거같앗서 ^^', '지난일이여도 미안해야될건 미안해야되는게 맞잔아'피고인 '내가 잘못해서 내가 신고먹고 갓다 온건데 피해자가 왜미안ㅋㅋㅋ', '안그래도돼 ㅋㅋㅋㅋ'피해자 '아니 그냥 나도 미안해라고 하고 끝내는거야 이럴때는, '세상사는 법을 모르네.피고인 '세상나온지 얼마안됫다 ㅋㅋ’피해자 '아...고래서 모르냐...'피고인 '그른거같닼ㅋㅋㅋㅋ, '미안하면 시간날 때 나 옷가게 하는데와서 옷이나 사가주면 땡큐고 ㅎㅎ'

II Conclusion

The facts charged in the instant case constitute cases where there is no proof of crime and thus, a not-guilty verdict pursuant to the latter part of Article 325 of the Criminal Procedure Act shall be pronounced, but the purport of the public notice of acquittal shall not be pronounced.

Judges

Judges and Judges of the Court

Judge Song In-bok

Judges Park Tae-soo

Note tin

1) The victim appears to be unrelated to the instant case, and the victim is unable to accurately associate with such text messages given and received due to any circumstance.

2) On February 2017, the victim stated that he/she was aware of the fact that he/she was not pregnant because he/she had a birth between the horses.

참조조문

-청소년의 성보호에 관한 법률

-형법 제58조 제2항

-형사소송법 제325조

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