2012Gohap71 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Korean relatives);

(B) Violation of the Special Act on the Punishment, etc. of Sexual Crimes (13)

Minor rape, etc.)

OOO, Drivers

Residence and Busan Shipping Daegu

Busan Geum-gu Office of Registration

Courtroom (prosecutions) and Kim Jong-han (Trial)

Law Firm L&K, Attorneys Kang Chang-ok

May 11, 2012

The defendant shall be innocent.

Summary of Facts charged

On June 2007, the defendant adopted the above ○○ on May 24, 2010, who was a father of ○○○○○○ and an international marriage with the People’s Republic of China (hereinafter referred to as “China”), and started to live together on July 24, 2010 when living together with the victim (the age of 11). From around July 2010, the defendant started to live together with the victim at the home of the defendant of ○○○○○○○ and ○○○○○○ and ○○○○○ and ○○○○ and ○○○○ and ○○○○ and ○○○ and ○○ and ○○ and ○

On October 17, 2011, the Defendant: 01:30 to 02:0:0, the Defendant: (a) opened a house with the above Defendant’s house; (b) opened a house with the victim’s room; and (c) took knee with the victim’s panty in a situation where the victim was unable to resist; and (d) took knee with knee with the victim’s fingers.

In this respect, the defendant committed indecent acts against the victim by taking advantage of the victim's non-performance state of care of relatives under 13 years of age.

The defendant and defense counsel's assertion

The Defendant consistently set the victim’s panty position at the time and place indicated in the above facts charged from the police to this court, and denied the charges by asserting that there was no fact that the victim’s panty position was put into the victim’s negative part, and that there was no fact that the panty was put into the victim’s negative part.

Judgment

1. There are statements at the police station of the victim (including statements recorded and video CDs), the victim’s mother and mother, and the OO’s statement at this court, each of the prosecutor’s offices, police, and the accusation. We examine whether each of the above statements in this case can be found guilty of the charges in this case.

2. Determination as to the statement of the victim

In light of the following circumstances, it is difficult to believe the statements made by the police of the victim.

A. Part on the charges of this case

The victim stated that between 01:30 and 02:00 on the day of the instant case, the Defendant included the fingers in the victim’s sound book, and that the Defendant became aware of the above actions (No. 234 of the investigation record). On the police officer’s question, the victim stated that the Defendant broken off the Defendant’s fingers in the Ampha (No. 237 of the investigation record).

그런데, 이 사건 다음날인 2011. 10. 18. 피해자에 대하여 부인과 검진을 시행한 ○○○ 학교의료원 산부인과 전문의 한○○은 피해자의 처녀막이 파열되지 아니하였고 , 음부에도 상처나 발적 등 특이사항이 없었다고 진단하였으며 ( 수사기록 제14쪽, 제185 , 186쪽 ), 2012. 1. 18. 검찰 수사관과의 전화통화에서도 위 진단결과를 토대로 피해자가 외관상 성폭행을 당하였다고 단정할 수 없고, 성폭행 시도 여부에 대해서도 알 수 없다는 의학적 소견을 밝혔는바 ( 수사기록 제189쪽 ), 만약 피해자의 위 진술과 같이 ① 피고인이 11세에 불과한 피해자의 음부에 강제로 손가락을 넣었고, ② 그 순간 피해자가 잠에서 깰 정도의 통증을 느꼈다면, 이와 같은 피해자의 나이, 손가락 삽입에 따른 통증의 강도 등에 비추어 볼 때 이 사건 바로 다음날 이루어진 위 진단결과에서도 피해자의 음부에 상처나 발적 등 특이사항이 관찰되었을 개연성이 클 것이라고 보임에도 위 진단결과는 그렇지 아니하였다 .

B. The part concerning rape

In addition to the facts charged in this case, the victim inserted the sexual organ into the part of the victim's sexual organ, and as a result, the body of the victim was laid off at the victim's sexual organ, and the body of the victim was laid away, the victim's her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her sher her

However, according to the above diagnosis results, the victim's wife was not exposed to the victim's wife, and there was no special circumstance, such as her wife and scam, and the victim's scam were found not found in the appraisal result of the victim's objection raised by the victim to an investigation agency (the investigation records No. 128 pages). In addition, according to each image of evidence No. 1-1 and No. 2 of the defendant's scambling operation, if the defendant's sexual organ was inserted into the body of the victim's sexual organ only 11 years old, and the defendant's sexual organ was inserted into the body of the victim's sexual organ only 11 years old, but the examination result was not found (whether the victim has sexual intercourse with the victim, ② whether the victim has sexual intercourse with the victim, ③ whether the victim's response was false or not with the victim's sexual intercourse with the victim, and it is evident that the defendant's sexual organ was inserted into the body of the victim's sexual organ.

C. On October 18, 201, the day following the day in which the statement was made, the victim was given counseling and treatment at 000,000 and at ○○○○○○○○○○○○○○○○ sexual violence counseling center on October 21, 201, but the victim visited the sexual violence counseling center on October 21, 201. However, the victim did not make any statement on the specific contents of the instant case more than one month after the victim’s failure to continue to give his/her speech from the complainant on November 30, 201, he/she did not die and die the Defendant, and was given a statement on the instant case and the sexual assault counseling center prior to the death of the complainant (the investigation record No. 114, 115 pages).

In addition, on December 8, 2011, the victim took an attitude that the victim would listen to the original network of the complainant if the victim did not state all of the crimes of the defendant on the day when he stated that he was accompanied by the victim at the time of the first statement by the police at the time of the first statement by the police on December 8, 2011 (the investigation record No. 243).

3. Judgment as to the statement of the complainant

A. The complainant stated that the victim’s statement had been made from the investigative agency to the court of this case that the victim committed an indecent act against the victim as stated in the facts charged of this case. However, as long as the victim’s statement as to the facts charged of this case itself is difficult to believe as seen earlier, the above statement is insufficient as evidence to support the facts charged of this case.

B. The complainant made a statement from the investigative agency to the court that the Defendant acknowledged the facts charged in this case. However, as seen consistently from the first stage of the investigation of this case to the present court, the Defendant denied the facts charged in this case. ② The content of text message sent by the Defendant to the complainant is mostly that the Defendant wishes to agree with the complainant, and there was no other content related to the victim. ( rather, on November 29, 201, the complainant recognized the Defendant’s act of assaulting the victim 3 and 4 times on 10 occasions, and the fact that the complainant unilaterally sent words that the Defendant sexual assaulted about 10 times (the investigation record No. 428 of the investigation record) and ③ The complainant submitted the agreement in advance to the court on November 3, 2011, which was not the Defendant’s collection but the Defendant’s sexual intercourse.

17. The complainant asserted that he was not aware of the truth of the case at the time of his sexual intercourse with the defendant in detail. However, this is inconsistent in light of the fact that the complainant stated that he heard the contents of the case from the victim on the day of the instant case and got the victim to leave the court, and that he made the complainant to leave the court, the contents of the voice recordings submitted as evidence as to the confession of the defendant are mainly multiples of the complainants and the defendant's simple answers are not confirmed (the date and time of the above voice recordings at the prosecutor's office, and the place of the audio recordings at the prosecutor's office on November 3, 201, with the above sexual intercourse with the defendant, it is specific (Investigation Records No. 538 pages) that the complainant had sexual intercourse with the defendant on the day of the instant case, and it is extremely difficult for the complainant to have made the statement on the day of the instant case even if the complainant's testimony was sent to the defendant on the same day in light of the ordinary relationship between men and women.

다. 피해자의 증상에 관한 부분 1 ) 고소인은 2012. 1. 25. 검찰에서 이 사건 전에 피해자로부터 음부가 가렵다는 말을 듣고 피해자의 음부가 빨갛게 부어 있었던 것을 확인하였고, 이 사건 후에는 그 증상이 심해졌으며, 2011. 12. 12. ○○ 산부인과에서 피해자로 하여금 위 증상에 대한 치료를 받게 하였다고 진술하였고 ( 수사기록 제338쪽 ), 이 법정에서도 이 사건 전에 피해자로부터 소변볼 때 간지러운 증상이 있다고 들었다고 진술하였다. 그러나 ① 앞서 본 2011. 10. 18. 검진 당시에는 피해자가 위와 같은 증상을 호소하거나 그에 대한 진단이 전혀 이루어진 바 없는 점, ② 고소인 또한 경찰에서는 위와 같은 증상에 대하여 아무런 언급을 하지 아니하다가, 피해자가 2011. 12. 12. ○○ 산부인과에서 음부가 간지럽다는 증상을 호소하여 캔디다 ( candida ) 질염으로 진단받은 뒤에야 비로소 위와 같이 진술한 점, ③ 고소인도 인정하듯이 위와 같은 증상에 대하여 위 2011. 12. 12. 전에는 피해자로 하여금 아무런 치료를 받게 하지 아니하였던 점, ④ 고소인이 피해자의 위와 같은 증상이 처음 발생한 구체적인 일자를 개괄적으로도 특정하지 못하였던 점 등에 비추어 볼 때 고소인의 위 진술도 선뜻 믿기 어렵다 .

2) Even if the victim had shown symptoms of canddylorates before and after the instant case, such as family affairs and the statement of the complainants, even if the symptoms were serious after the instant case, candylorates are characterized by diseases due to stress, etc., and they are not related to sexual assault. Thus, the above statement by the complainants is very insufficient as evidence to support the instant facts charged.

D. On June 29, 2007, the complainant, who had Chinese nationality, filed a marriage report with the defendant on June 29, 2007, and on October 19, 2007.

By the date of the instant case, the victim was sent back to the Republic of Korea (hereinafter referred to as "Korea") on the day when the victim was living together with the Defendant and the Defendant, ○○, and ○○, who were the children of the Defendant and the Defendant, and living with the Defendant (the complainant appears to have been living with the Defendant at the time of living with the Defendant, ○○, and ○○) on the day of the instant case, and on December 201.

8. As to the instant case, etc., the Defendant filed a complaint with an investigative agency on December 30, 201, and after acquiring the Korean nationality on January 1, 201, the Plaintiff, who was Chinese nationality, was adopted on May 24, 2010 as the Defendant’s (son) and was adopted on July 2, 2010.

From around that time to around the time of this case, both the complainant and the defendant living together with the defendant, the complainant and the defendant's children, ○○, ○○○, etc., who had already acquired Korean nationality on September 19, 201, which was about one month prior to the occurrence of this case.

3) On January 16, 2012, the complainant emphasized credibility of the victim’s statement (as seen earlier, the part concerning rape in the victim’s statement is obvious and it is difficult to believe as it is, in the international telephone conversations with the prosecution investigator, that the victim did not think of re-entry into the Republic of Korea; that the victim stated in the police; and that if the victim asks the victim of the situation at the time of the instant case, mental state is deep, the victim would ask the complainant to ask him. However, as seen above, the victim’s statement is obviously false, and that the part concerning the charge of rape in the victim’s statement is also difficult to receive as it is. 4) If the victim did not appear to have been rape in the first place, 7 years of imprisonment with prison labor after reporting to the police, and if the victim did not appear to have been rape in the first place, 70,000 won of imprisonment with prison labor for a limited term of not less than 30,000 won, 20,000 won of the victim’s testimony.

5) In light of the background and timing of the acquisition of nationality by the complainant and the victim, the circumstance and timing of the complainant’s demand by the defendant for KRW 30 million, etc., the complainant appears to be difficult to eliminate the probability that the complainant filed a complaint with the investigative agency by exaggeration of the victim’s statement in order to resolve the marriage between the defendant and the defendant, or that the victim made a false or exaggerated statement

4. Sub-committee

Therefore, the statements by the police of the victim, the statements by the complainants, the prosecutor and the police in this court, each statement by the prosecutor and the police, and the accusation are difficult to believe or insufficient to support the facts charged of this case, and there is no other evidence to acknowledge it otherwise.

Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judge Park Jong-chul

Judge Maump

Judges Lee Lee-hoon