(영문) 서울중앙지방법원 2019.12.13. 선고 2019고합583 판결

On January 16, 2019, the Defendant was sentenced to imprisonment with prison labor for ten months at the Seoul Central District Court for the crime of injury, violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras), and the said judgment became final and conclusive on October 2, 2019.

【Criminal Facts】

The defendant and the victim B (50 years old at the time) are in a de facto marital relationship from 2008 to 2017.

At around 14:00 on October 31, 2015, the Defendant, at a villa owned by the victim in the Gyeonggi Pyeong-gun C, brought a dispute with the Defendant, exceeded the number of exempted eggs containing the ingredients in the stroke-m, and inserted the sexual flag into the part of the victim.

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

Summary of Evidence

1. Partial statement of the defendant;

1. B Legal statement;

1. A certificate of subparagraph 2 of this Article, the USB or the recording book;

1. A certified copy of medical records under subparagraph 3 of this Article;

1. Previous convictions: Court rulings (Seoul Central District Court 2019No365), and court rulings (Supreme Court Decision 2019Do11977);

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297(1) of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act [mutually between the crimes and the judgment, and the violations of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amerasation and photographing)]

1. Statutory mitigation following the treatment of concurrent crimes;

The latter part of Article 39(1) and Article 55(1)3 of the Criminal Act

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 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Orders to disclose and notify information, and exemption from employment restrictions orders;

Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, 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, Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018), the proviso to Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018); Article 2 and the proviso to Article 59-3(1) of the Addenda to the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018) of the Act on Special Cases concerning the Protection, etc. of Sexual Crimes (amended by Act No. 15904, Dec. 11, 2018);

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

It was true that the defendant had sexual intercourse with the victim, or agreed with the victim, and the victim did not have the state of mental disorder or escape at the time.

2. Determination

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the victim’s statement is reliable, and according to the above statements and the evidence revealed earlier, the defendant has sexual intercourse with the victim who was in a state of mental or physical disorder or of failing to resist. Therefore, the above assertion by the defendant and the defense counsel is not accepted.

A. The victim, who was in a de facto marital relationship from the investigative agency to the instant court, was aware of the grounds for the dispute at the time of the instant case, the victim’s memory before drinking water exemption, the circumstances leading to the victim’s awareness of the Defendant’s behavior, and reported the Defendant, etc., relatively concrete and consistent with regard to the main part of the instant crime. There are no especially unreasonable parts or statements in the contents of the statement. In particular, there was no inconsistency in the victim’s statement that was confirmed at the time of the examination of the witness conducted in this court, such as the victim’s appearance and attitude, and the penance of the statement, or the statement that was made in a special exaggeration.

B. The victim had a large number of days before the occurrence of the instant case, and recorded the contents of the Defendant’s cell phone wraped with the Defendant. At the time of the instant case, the victim’s cell phone before and after the instant case had been recorded. According to the recorded contents, the victim said that “I am out of 30 minutes because I am out of her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her.

Around the instant case, the victim was able to take place by prescribing 1 m (10mg) capacity per day of the exemption of ingredients in the WIGm. However, at the time of the instant case, the victim explicitly stated that the victim was aware of the fact that the victim was drinking the water exemption exemption of the water exemption of the water exemption of the water exemption of the Defendant while she was in a verbal dispute with the Defendant, and that the victim was willing to take the water exemption of the Defendant.

다. 피고인은 피해자가 잠든 이후 다시 방으로 들어오면서 피해자에게 "아휴, 하. 눈 좀 떠봐. 응?", "조금만. 눈 좀 떠봐. 고성 자가. 차 안에서 자", "응? 가자, 응? 미안해", "당신 없으면 못 살잖아. 응? 가자. 아휴 어떡해 여보, 응?"이라고 말을 한 다음 "여보, 바지 벗어. 바지 벗어봐. 아후"라고 말하며 성관계를 하였고(위 녹음파일 00:56:20 경), 성관계를 하면서도 "여보, 밑에가 빨개. 어떡해? 응? 흐르는데? 괜찮아?", "여보, 밑에가 빨갛다고, 가만있어. 타올 가져올게. 수건 가져와?", "어떻게 해 줄까? 더. 잠깐만 누워 있어. 아우. 여보, 잠깐만 이러고 있어. 안 되겠다, 안 되겠어", "발 올려. 아우, 여보, 괜찮아? 어? 괜찮냐고"(위 녹음파일 00:59:43경), "당신이 위로 올라와. 위로, 발 펴봐.하 뜨거워"(위 녹음파일 01:01:50경)라고 말하였으며 약 9~10분가량 성관계를 한 다음 "가자. 어? 여보, 가자. 얼른, 씻게"라고 말하면서(위 녹음파일 01:05:05경) 성관계를 마쳤다. 그런데 위와 같이 성관계를 하는 동안 피해자는 신음 소리를 냈을 뿐(위 녹음파일 01:00:06, 01:02:47 경, 이상 녹취서 제18쪽) 피고인이 성관계를 하면서 바지를 벗고 몸 위로 올라오라거나 발을 펴보라고 말한 것에 대하여는 아무런 대답을 하지 않았다. 이러한 녹음 내용에 비추어 볼 때, 피해자는 이 사건 당시 수면제를 먹고 잠이 들어 있거나 제대로 정신을 차리지 못한 상태였다고 봄이 상당하다.

D. Regarding this, the defendant and his defense counsel argued that the victim divided the victim's conversation with the defendant at the time of this case, and moved his body with the defendant in high condition after the sex relationship, the victim did not have any condition to be unable to resist or unable to resist, and that sexual intercourse was made under the agreement with the defendant. According to the above records, the victim's sexual intercourse seems to have been faced with the victim's negative part during the sexual intercourse. The defendant confirmed, after the completion of the sexual intercourse, that the victim's defect "I cannot see how we can we see? I am? I am? I am? I am? I am? I am? I am? I am? I am we see that the defendant's physical body "I am late, I am", "I am am," "I am am," "I am am," and "I am a cleaning agent," and "I am you am you see it later."

However, as seen earlier, the victim merely sent a new voice without any answer at the end of the defendant, and even after the sex relationship, it does not appear that the victim simply sent a voice without any special meaning, such as "child", "I", and "I leave", and does not appear to have been divided into conversations with the defendant under normal consciousness. In addition, if the victim had a common sense of consciousness, such as the above recording, even though the victim had been faced with his body at the time of sexual intercourse, it seems that the victim did not look at the clothes with his body. Although the victim was driven on the vehicle driven by the defendant with his clothes, the victim seems to have immediately been locked again after the victim was locked (the 23th page of the Green Cross). Considering that the side effect of the strokeing component may have occurred on each person, and that the victim cannot be seen as having done an act to the extent that the victim was unable to fully memory the victim's behavior after the strokeing.

마. 한편 피해자가 수면제를 먹기 전까지 피고인은 피해자와 말다툼을 하였고 감정이 격해져 피해자에게 "이 싸가지 없이 기지배가 어디서 밀고 난리야", "이게 싸가지 없이 그냥!"이라거나(녹취록 제5쪽) "너 더럽고 치열한 거 너는 뭐 나는 뭐 병신인 줄 알아? 문 열어봐", "이년아? 씨, 하이고, 저 미친년 저거 진짜 내가 아무것도 모르고 내가 너한테 당한 거 생각하면 밤에 잠이 안 와, 이년아"라고 욕을 하였다(녹취록 제7쪽). 피해자는 피고인이 들어오지 못하도록 문을 닫고 있다가 이야기를 하기 위해 문을 연 다음 피고인에게 "만지지 마", "거기서 건너오지 마세요. 서로가 떨어져서 얘기해" 라고 말했고(녹취록 제8쪽) "그러니까 너는 정신병자야"(녹취록 제16쪽)라고 욕을 한 이후 피고인의 여자 문제와 돈 문제로 싸움을 계속하다가 피고인이 나간 후 잠이 들었다. 이와 같이 피해자는 잠이 들기 전까지 피고인과 서로 욕을 하면서 싸우고 만지지 말라고 하는 등 신체적인 접촉을 거부하였는데, 화해도 하지 않은 채 수면제를 먹고 잠이 들었던 피해자가 잠에서 깨어 위와 같이 격하게 싸웠던 피고인과 합의하에 성관계를 하였을 만한 상황으로 보이지 않고, 피해자가 수면제를 복용한 것을 알고 있었던 피고인으로서도 피해자가 졸피뎀이 든 수면제의 영향으로 잠이 들어 정상적인 의식이 없고 성관계 요구에 저항하지 못하는 상태였다는 점을 충분히 알 수 있었다고 봄이 타당하다.

F. Meanwhile, even after the instant case, the victim maintained a de facto marital relationship with the Defendant by July 2017, and contributed to broadcasting or made overseas trips. However, the victim was in a state that he was unable to memory the instant crime due to the influence of an exemption from clothes at the time of the instant case. In light of the victim’s relationship and the Defendant’s relationship, the details recorded at the time of the instant case, and the victim’s statement form and attitude confirmed at the time of examination of witness conducted in this court, etc., the victim was deemed to have maintained a de facto marital relationship without extinguishing the relationship with the Defendant, solely on the grounds that the victim was in a de facto marital relationship with the Defendant for a long time after having committed the instant crime. It is difficult to view that the victim denied the credibility of the victim’s statement and that the victim had a de facto marital relationship with the Defendant at the time of the instant case.

G. From the time of the occurrence of the instant case, the victim filed a complaint against the Defendant on April 2018, around two years and six months before the date of the occurrence of the instant case. As to this, the victim stated in this court that “the victim was unable to completely memory the situation at the time of the instant case, and the file recorded with the Defendant was 2-300 files, which could not be heard, while preparing for consolation money against the Defendant, and filed a complaint against the Defendant.” The victim’s statement to the effect that “The victim was aware of the instant crime after the recording file was recorded,” which was the victim’s statement to the effect that the victim was aware of the instant crime. The victim’s statement to the effect that the victim was aware of the instant crime after the recording file was made after the recording file was recorded. The victim’s statement was acceptable because the victim, who was not in a normal state, was unable to memory the situation at the time of the instant case due to the influence of flood exemption.

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for nine months to seven years; and

2. Scope of recommending sentencing criteria: The crime of this case is in the relation of concurrent crimes under the latter part of Article 37 of the Criminal Act with the crime of inflicting bodily injury on the records of the judgment, and the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as the "Act on Special Cases

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

The crime of this case was committed by the victim who was in a de facto marital relationship with the victim, and was sexual intercourse by taking advantage of the victim’s mental disorder or non-satisfying condition during which the victim was drinking. In light of the relationship between the victim and the victim, the circumstances and method of the crime, etc., the crime of this case is not less complicated. The victim was aware of the victim’s cell phone after being aware of the victim’s occurrence of the crime of this case, and was aware of the victim’s occurrence of considerable mental pain and sexual humiliation. The victim was suffering from the victim’s statement of the damage that he did not want to memory not only in the investigation agency but also in this court. The victim sought punishment against the defendant.

The Defendant maintained de facto marital relationship with the victim from around 2008 to July 2017, 2017 even after the instant case. Since the relationship between the crime of injury on the records of criminal records and the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amera, etc. and the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amera, etc.) and the latter part of Article 37 of the Criminal Act is concurrent crimes, the equity between the above crimes

Registration and submission of personal information;

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.