2020Ma250 Quasi-rape

Guilty, 80-years, South and North, and Company Board

Delay (prosecution, public trial)

Law Firm

November 27, 2020

The defendant shall be innocent.

The summary of this decision shall be published.

1. Facts charged;

Around March 2018, the Defendant came to know of the victim Lee-○ (n, 36 years of age) (n, 36 years of age) through the introduction of a branch, and maintained friendship with each other from that time.

Around 15:00 on March 14, 2020, the Defendant drank alcohol together with the Defendant’s son, the victim, and the Defendant’s son first returned home, and her son changed her her son’s her son and her son her son her son her son her son her son her son her son her but her son her son her son her son her son her but her her son her her son her son her her son her but her her son her her son her her son her was

On March 15, 2020, from around 05:00 to 08:00 on the same day, the Defendant: (a) had been engaged in sexual intercourse with the Defendant’s sexual organ inserted into the part of the victim, on March 15, 202, the Defendant: (b) had a crepane in Ulsan-gun, Ulsan-gun, Ulsan-do 309; (c) had a crepane in which the victim was unable to resist due to the influence of alcohol; (d) had a cre

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or physical state of difficulty.

2. Summary of the defendant and his defense counsel's assertion

At the time of the case, the victim was not unable to resist, and the defendant was aware that he had the implied consent of the victim, and thus, he cannot be recognized as the intention of the crime of quasi-rape.

3. Determination

A. Relevant legal principles

1) The crime of quasi-rape as referred to in Article 299 of the Criminal Act is established by having sexual intercourse with a person’s mental or physical state of non-existence. In order to constitute such crime, not only the victim’s “the state of non-existence or non-performance” is required as an objective constituent element, but also the Defendant’s intent to have sexual intercourse with the victim’s awareness of the state of the victim and the use of such awareness as to the state of the victim. Here, “the state of non-conformity” refers to the case where psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than the mental or physical defect (see, e.g., Supreme Court Decision 2009Do2001, Apr. 23, 2009).

2) The burden of proving the facts constituting an offense prosecuted 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. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, the interest of the defendant is inevitable (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2008Do4467, Jul. 24, 2008).

B. Specific determination

1) The following circumstances can be acknowledged by each evidence duly adopted and investigated by the court of this case, namely, ① the victim started drinking with the defendant around March 14, 2020, which was the day before the case, around 3:0 p.m., around March 14, 2020; ② the defendant appears to have drinking more than the ordinary level of drinking by bringing the drinking together with the defendant, 2) the defendant, and the defendant also stated at an investigative agency that the victim was under the influence of drinking, such as the victim's completion of the fifth drinking job and going beyond the five drinking job, ② the defendant stated that the victim was under the consent of the victim at the time of the investigation into the police once, ③ the defendant stated that the victim was under the consent of the victim at the time of the first investigation into the police once, and that there was no doubt that the victim was unable to resist sexual intercourse, and that the defendant changed his statement to the effect that there was no consent to commit the crime.

2) However, examining the following facts and circumstances acknowledged by each evidence duly adopted and investigated by this court in light of the aforementioned legal principles, it is insufficient to view that the evidence submitted by the prosecutor alone was proven to the extent that there is no reasonable doubt as to the fact that the victim was in a state of mental or physical disability or failing to resist at the time of the instant case, and that the Defendant was sexual intercourse with the victim by recognizing the victim’s mental or physical disability or failing to resist,

A) Whether the victim was unable to resist

(1) In light of the CCTV images that the Defendant and the victim had been frightened on the day of the instant case, the Defendant and the victim left the taxi at around 00:42 on March 15, 2020, when the Defendant and the victim moved from the taxi, the Defendant and the victim first moved from the taxi to the telecom, and the victim could confirm the situation of entering the el. At the time, the victim could not fright the body, the Defendant did not run or fright up, but rather naturally walk the victim (Evidence No. 32,33 of the evidence record, the investigation report of the evidence No. 6 CCTV image CD).

(2) In accordance with the statement of the Defendant and the victim’s investigative agency, it seems that the two persons entered the her motherel room, not immediately have a sexual relationship, but had a sexual relationship between 5:00 am and 8:0 am and 2.0 am, and that there was a sexual relationship between 4:0 am and 5:00 am and 8:0 am and 2.

(3) The victim made a statement at the investigative agency about the part of memory in the situation before and after the instant case as follows. Examining the content, most of the situation after the drinking place and up to the time of sexual intercourse seems to be unsatisfy, but the victim seems to be satisfying.

A person shall be appointed.

A person shall be appointed.

(4) The Defendant, at an investigative agency, stated that “the Defendant drinking water on a new wall with a view to drinking water.” The Defendant brought water to the victim’s view because the victim changed water on a new wall. / she has no water on a single occasion, and brought water to the victim, thereby bringing water to the Defendant. The Defendant made a sex-related relationship with the victim. / The Defendant was able to bring water on the victim. The Defendant also made a statement from around 40 p.m. to 38 p. 4 p.m. (Evidence) that the Defendant and the Defendant were able to look back on the victim’s back and back, on the ground that the victim was able to play a funeral on the back of the new wall. Then, the Defendant stated that “The Defendant was able to play a funeral before 9 p.m., she was boomed with the Defendant and the Defendant’s instant text messages.” From around 86 p.m. to 40 p. 208 p.m., the Defendant’s statement was also 97 p.

A person shall be appointed.

A person shall be appointed.

(5) Reasons for the instant complaint

(A) From March 18, 2020, until March 3: 18, 2020:3:00 p.m. to March 40, 2020, the victim began to look at why he/she had done his/her behavior since the text sent to the Defendant from March 18, 2020 to March 3:0 p.m. (Evidence Record 99 pages).

(B) Examining the text messages of the victim who continues thereafter, the victim appears to have been in de facto marital relationship, and talked about the work of the defendant on the day of the instant case while opening a meeting of red ○ and telephone calls in the Ulsan Detention House, and thereafter, the defendant begins to comply with the instant case, and continues to express his intention to punish the defendant, referring to the issue of accusation and agreement. The complaint against the instant case was also made by the complaint received by the Ulsan Coast Police Station on March 22, 2020, prepared by the victim, not by the victim himself.

(C) As such, the victim did not mention the instant case not only at the time of the sexual intercourse with the Defendant, but also at least three days after that day, while exchanging very closely-friendly conversations, the victim started to follow the instant case by changing his attitude after the de facto marriage spouse’s currency, and to criticize the Defendant’s behavior. Nevertheless, the victim’s complaint on the damage was filed through the complaint prepared by the de facto spouse who was at the detention house, and the victim’s attitude and the developments leading up to the instant complaint seem to be considerably exceptional.

(6) In full view of the aforementioned circumstances in light of the aforementioned circumstances, the victim’s ability to distinguish and make decisions was deteriorated due to the influence of alcohol that was taken in excess of ordinary level at the time of entering the el, and the above conditions were deemed to have continued to some extent at the time of sexual intercourse. However, it is difficult to readily conclude that the victim’s situation at the time of the instant case had reached the state of non-rape as stated in the crime of quasi-rape.

C) Circumstances in which it is difficult to conceal the Defendant’s intent

(1) At the investigative agency, the Defendant stated that the victim was unaware of the fact that the victim was under the influence of alcohol at the time of entering the telecom, while recognizing the fact that the victim was under the influence of alcohol, and the CCTV images as seen earlier also did not seem to have relatively natural and difficult to view that the victim’s walk and movement were relatively natural and difficult at the time of entering the telecom. Therefore, it is difficult to readily conclude that the Defendant, at the time of entering the telecom, knew that the victim was in the state of mental disorder, or of failing to resist due to alcohol beyond the under

(2) The Defendant stated that he had sexual intercourses with the victim’s consent while completely denying the facts charged in the first investigation conducted by the police. However, during the second investigation conducted by the police with the victim, the Defendant made a statement to the effect that he was aware of the facts charged in this case. However, it is difficult to avoid the possibility that the Defendant made a statement that: (a) the disabled with intellectual disability 3 seems to fall somewhat than ordinary people; (b) the Defendant made a statement with the victim at the time of the investigation without the counsel’s assistance; and (c) the first investigation, in lieu of the intent of the statement at the time of the investigation; and (b) the Defendant made a statement to the effect that he was fully aware of the fact that there was “the victim’s explicit consent to sexual intercourse” although there was no material evidence unfavorable to the Defendant, it is understood that the Defendant only understood that there was “the victim’s consent to sexual intercourse” and that there was no such fact.

(3) The victim stated at the investigative agency that “Around March 2018, he knew the Defendant with the introduction of the branch,” and that “Around November 2019 and January 2020, 200, 200, she went to the cruel and natural telecom, and had sexual intercourse with each other under mutual agreement.” (Evidence Nos. 13, 18, 19 of the evidence record), and the Defendant may have been recognized as similar to the situation at the time of the instant case’s sexual intercourse with the victim prior to the instant situation.

(4) If, at the time of the instant case, the Defendant did not have an assistant principal for sexual intercourse in advance and was the Defendant’s unilateral sexual relationship, such as the victim’s assertion, it would be natural to express the victim’s refusal or displeasure at the time of recognizing the sexual relationship. Rather, there is a situation in which the victim actively respondeds to the sexual relationship, and even after the completion of the sexual relationship, the circumstances that naturally take place even after the sex relationship, are naturally hedging.

(5) Subsequent to the instant case, the Defendant and the victim were given a very closely-friendly conversation (Evidence Records 96-99 pages). On March 15, 2020, when the Defendant and the victim had been faced with the instant case, the victim sent a letter (No. 5177 pages, evidence records No. 96 pages) to be unfolded about the day when the Defendant was singing out. From March 11, 2020, the victim sent a letter (No. 5347-5350 pages, evidence records No. 97 pages, evidence No. 97-457 pages) stating the date when the agreement on the instant case was written (Evidence No. 5316, Mar. 16, 2020). From March 18, 20207, the victim sent the text to the victim’s singing relationship with the Defendant and the victim No. 974 of the instant case, and the victim did not know about the fact that the Defendant was pregnant.

(6) 피해자는 사건 당일인 2020. 3. 15. 오후부터 같은 달 18. 오후 3시 46분경 피고인에게 갑자기 사건 당시 기억이 전혀 나지 않는다면서 피고인의 행동에 대해 따지기 시작하기 직전까지, 위에서 본 대화 내용 외에도 피해자의 친오빠에게 피고인을 소개하기 위해 만나기로 하는 일정에 대한 이야기, 지인의 결혼식에 대한 이야기, 피해자의 몸 상태를 걱정하거나 출퇴근 무렵의 일상에 대한 이야기를 주고받는 등 매우 가깝고 친밀한 내용의 문자를 주고받았다. 특히 피해자가 피고인을 피해자의 친오빠에게 직접 소개하기 위해 만나기로 하는 이야기를 하면서, ‘울 오빠가 맘에 안 든다 하면 포기해라’, ‘만나보는 거지 맘에 안 든다 하지 싶은데 ㅎㅎㅎ’, ‘첫 인상이 중요하거든 ㅎㅎ, 근데 내가 널 첨 봤을 때 첫 인상 안 좋았는데 ㅋ’이라는 문자를 피고인에게, 피고인은 ‘맘에 든다 하면 어떻게 할 거야’, ‘내가 오빠한테 잘 보여야지’, ‘그래도 오빠 처음 보는데 내가 가서 기다리고 있어야 되는 거 아니가’라는 등의 문자를 피해자에게 보냈는데, 그 내용을 볼 때 피고인이 당시 피해자와의 관계가 ‘연인’라고 주장하는 바와 부합하는 것으로 보인다.

(7) In light of the aforementioned circumstances, the Defendant appears to have been in a very close relationship with the victim or at least with a very close relationship corresponding thereto, and even before and after the two drinking fields, there is room for interpreting that the Defendant, at the time of the instant case, was in a negotiation on the sexual relationship with the victim when he was accompanied by the Defendant’s her mother, or was in a her mother’s her mother with an implied consent to the sexual relationship itself.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, is pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and it is so decided as per Disposition by publicly announcing the summary of this judgment pursuant to the main sentence of Article

Judges Park Young-young

Judges Kim Do-young

Judge Definition Binding