Defendant

Maximum mileage (prosecution) and public trial (public trial)

Attorney Cha Jae-ho (Korean)

The defendant shall be innocent.

1. Facts charged;

On July 2014, the Defendant posted a horse to the victim Nonindicted Party (hereinafter “△△△△△△○○”) through the “△△△△△ Don Pumping” in a smartphone, and introduced himself/herself as “the second grade of a high school”, and sent another person’s photograph to the victim as if he/she were his/her photograph, and sent it to the victim for dialogue with the victim. The Defendant continued hosting with the victim, and continued printing with the victim, instructed the victim to talk with the victim. The Defendant: (a) demanded that “the sending of the chest by affixing his/her chest photograph”; (b) the Defendant sent the victim by affixing his/her chest photograph on five occasions; and (c) attempted to have sexual intercourse between the victim and the victim.

On August 2014, 2014, the Defendant: “A female scaming to scam with good fact, and I want to do so. I do so. I want to do so?” The victim’s playing scambling is called “I amb? I amb? I am amb?” The victim’s “I ambling to scam and die, and if I want to do so, I ambling to scam?? I am scam? I am to see how I ambling? I am ambling? I am? I want to see that I would ambling to the victim because I want to ambling?” while I want to ambling to “I ambling women? I would ambling women? I want to ambling the victim’s sexual intercourse?”

On August 2, 2014, at around 09:00 on August 2, 2014, the Defendant introduced the victim as “ship of 00 ○○○○○” at the bus terminal, and loaded the victim on the vehicle, and thereafter, parked on the vehicle by using the fact that it is difficult for the victim to deviate from the mixed location due to the typhoon at the time.

The Defendant, who takes the victim into the back seat of the vehicle, exceeded all clothes, and inserted the Defendant’s sexual organ into the part of the victim, thereby having sexual intercourse once with the victim’s sexual organ, and “whether or not the victim should be allowed to do so?” However, the Defendant continued to have sexual intercourse two times more with the victim’s sexual organ “whether or not the victim should be allowed to do so.”

Accordingly, the defendant has sexual intercourse with the victim who is a child or juvenile by force.

2. Determination

The term "defluence" in the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse means the ability sufficient to suppress the victim's free will.

In full view of the following circumstances acknowledged by the evidence examined, it is insufficient to view that the Defendant had sexual intercourse with the Nonindicted Party by using the force sufficient to suppress the Nonindicted Party’s free will at the time, and there is no other evidence to acknowledge it.

① From July 2014, the Defendant and the Nonindicted Party dialogueed to “Kakakaox”, and the Defendant continuously demanded the Nonindicted Party, who became good, to change the “ship of the Defendant” and sexual relationship with the Nonindicted Party on the same background as the facts charged, and the Nonindicted Party consented to the “ship of the Defendant” as the Defendant demands.

② At the time of the instant case, the Nonindicted Party was aware of the Defendant as “the worship of the Defendant,” and the Nonindicted Party had already agreed to be in a sexual intercourse with “the Defendant’s worship.” As such, the Nonindicted Party voluntarily respondeded to the sexual intercourse, and the Defendant did not resist or refuse to do so even though the Defendant marks pictures and videos. However, the Nonindicted Party stated that the number of times of sexual intercourse increases and the number of times of sexual intercourse increases, the Nonindicted Party stated that “I will only am off. I do not want to do so,” and the Defendant was locked, and the Nonindicted Party did not refuse to do so.

③ The Nonindicted Party stated that “The Nonindicted Party was the head place and the principal place, and that he was the first person, and that he was able to resist because he was in order to go to the house.” However, it cannot be found that the Defendant, at the time, committed an act that could make the Nonindicted Party feel a threat to the Nonindicted Party.

④ After the instant case, the Nonindicted Party continued to contact with the Defendant, and reported to an investigative agency on August 14, 2014. The reason seems to be that the Nonindicted Party was not that the Nonindicted Party was sexual assault but that the Nonindicted Party’s pictures and videos were disseminated.

3. Conclusion

The facts charged in this case constitute 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

Judges Jinyn (Presiding Judge)

1) In light of the circumstances in which the Nonindicted Party had sexual intercourse with the Defendant, there may be questions as to whether the Defendant was not the Nonindicted Party, who is a child or juvenile, by a deceptive scheme. However, in the crime of sexual intercourse with a child or juvenile by a deceptive scheme under Article 7(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the term “defensive scheme” means that the offender misleads the other party for the purpose of sexual intercourse, misleads the other party, makes him/her a site, and achieves the objective of sexual intercourse by taking advantage of such physical state of the other party. Here, the term “defensive scheme” refers to mistake, mistake, and site as to the act of sexual intercourse itself, and means mistake, mistake, and site as to other conditions that are not recognized as indivisible to the act of sexual intercourse (see, e.g., Supreme Court Decision 2001Do5074, Dec. 24, 201). In this case, the meaning of the sexual relationship between the Nonindicted Party was not a deceptive scheme.