2017Gohap864 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (similar act);

Violation of Employment Security Act

A

Kim Sil-sil, Courtrooms (public trial)

Attorney B (Korean National Assembly)

November 3, 2017

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

Probation of the accused shall be ordered and community service for 80 hours.

Seized evidence 4 through 7 shall be confiscated, respectively.

Of the facts charged in this case, each of the offenses against the Act on the Protection of Children and Juveniles against Sexual Abuse (similar act) shall be acquitted.

The summary of the judgment of innocence shall be published against the defendant.

Criminal facts

A person who intends to conduct domestic fee-charging job placement services shall register with the head of a Si/Gun/Gu having jurisdiction over the location of the main business office.

Nevertheless, the Defendant, without being registered with the competent authority from June 19, 2017 to June 21, 2017, received a request from 'E', 'F', etc. to send female employees after employing D as female employees, etc. from 'E', 'F', etc., and sent D to the said singing practice room, let D work as an entertainment entertainment worker, and received 10,000 won out of the amount received as service fees from D, and provided job placement services for consideration.

Summary of Evidence

1. Defendant's legal statement;

1. Stenographic records of each victim;

1. Records of seizure and the list of seizure;

1. Report on internal investigation (the Chief of the news office and E site photograph of the victim), internal investigation report (the search and investigation of the crime scene while accompanying the victim), internal investigation report (the investigation of the vehicle used by the suspect when he/she serves as the Chief of the news office), request for cooperation in investigation (H, E), and report on investigation (the confirmation of whether the job placement office is registered);

1. Details of the official correspondence (lease contract and the location of GPS);

1. Video CDs;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 47 subparagraph 1 of the Employment Security Act and Article 19 (1) of the same Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Probation and community service order;

Article 62-2(1) and (2) of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

[A prosecutor may confiscate the right of only KRW 18 (No. 1), KRW 87 (No. 2), and Samsung Tgallony (No. 3). However, the defendant stated that the seized money at the prosecutor's office is a money that was borrowed from the son or sent to the restaurant on a daily basis, and Samsung Gallon (No. 629, 630) is a personal mobile phone (Evidence No. 629, 630). The evidence submitted by the prosecutor alone is insufficient to deem that the above right of only KRW 0,00, etc. was provided or intended to be provided to the fee-charging job placement service specified in the criminal facts of this case, and thus, it shall not be confiscated).

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to five years; and

2. Scope of recommended sentences according to the sentencing criteria;

The sentencing criteria are not set.

3. Determination of sentence;

The crime of this case is a paid job placement service, which is called ‘the name of the defendant without being registered with the competent authority', and it is inevitable to punish the defendant in that the defendant already committed the crime of this case even though he was sentenced to a fine in around 205 for the same kind of crime. Such circumstances are disadvantageous to the defendant.

However, considering the fact that the defendant recognized the crime of this case and reflected his mistake in the circumstances favorable to the defendant, the defendant's age, character and conduct, family relationship, living environment, motive, means and result of the crime of this case, and the punishment as ordered shall be determined by comprehensively taking into account the various kinds of conditions shown in the trial process of this case, such as the circumstances after the crime.

Parts of innocence

1. Summary of the facts charged

On June 19, 2017, the Defendant sought to work as an entertainment receptionist in Seoul Special Metropolitan City, 1, 2017, H, and 18 years old, the Defendant is willing to employ the victim as an entertainment receptionist even though the victim was aware of the minor fact in the course of holding an interview with the victim D (the age of 18). In order to run an entertainment receptionist in the above office with the victim, she must do so. The Defendant was able to run an entertainment receptionist, and she was able to run an entertainment receptionist in the above office with the victim. The Defendant was able to run an entertainment receptionist in Seoul Special Metropolitan City, 200, with the victim "Kel in

At around June 19, 2017, the defendant tried to work in the above K Moel room, "it must be done well for the defendant," and "I want to get off the clothes of the victim," and "I want to get off the clothes of the victim, I want to start up and start, I want to do so," and "I want to get off the clothes of the victim," and "I will be punished if I refuse the victim's resistance," and "I will be punished if I refuse the victim's resistance." After suppressing the victim's resistance, I inserted the victim's sexual organ into the victim's resistance.

Since then, the defendant tried to send the victim to entertainment drinking house with G K5 car in return to C, but the victim was tried to return to entertainment drinking house, but the following day from the wind of refusing to employ the victim at the business establishment. On June 20, 2017, the victim was moving to the "Lelel" and the victim was called "on June 20, 2017," and "on the other hand, the victim was naturally coming to the "Lel" and "on the other hand when entering the Ga, her mother, or her mother," and the victim came to the above Lel with the victim by retiating the victim.

On June 20, 2017, the Defendant took place her laps from No. 207 in Gwanak-gu in Seoul Special Metropolitan City to her laps. On June 20, 2017, the Defendant took action to take the victim's hand to her knife the victim's her knife, and her knife the victim's knife, her knife the victim's knife and her knife the victim's knife, her knife the victim's knife, and her knife was inserted into the victim's knife.

As a result, the defendant threatened the victim who is a child or juvenile, thereby inserting his sexual organ over two times in the victim's resistance.

2. Defendant and his defense counsel’s assertion

The defendant only committed the act of similarity under the agreement with the victim at the time and place specified in the facts charged, and did not commit the act of similarity after suppressing the victim's resistance by threatening the victim.

3. Determination

(a) Relevant legal principles;

In a case where the defendant strongly denies the facts charged and the direct evidence consistent with the facts charged in the record is the victim's statement, and the remaining evidence is merely hearsay evidence based on the victim's statement, in order to find the defendant guilty of the facts charged, the victim's statement is required to have high probative value so as to have little doubt about the truth and accuracy of the statement. In order to determine whether the defendant has such probative value, the victim's own rationality, consistency, objective reasonableness, as well as human factors such as the victim's sexual character, should be comprehensively taken into account (see Supreme Court Decision 2011Do16413, May 10, 201). Meanwhile, the prosecutor bears the burden of proving the facts charged in the criminal trial, and the conviction of the defendant should be based on evidence with probative value, which leads to the judge's conviction that the facts charged are true beyond a reasonable doubt. If there is no such evidence, even if there is no doubt as to the defendant's guilt, the defendant's profits should be determined by the judgment of the court.

B. Determination

1) As evidence concerning the facts charged in the instant case, there are the victim’s legal statement, each stenographic record (victim’s statement Nos. 2 and 15), the police statement of the victim, the prosecutor’s office’s witness statement of the victim, each internal investigation report, each investigation report, the video CD, the protocol of seizure and the list of seizure.

However, each internal investigation report is about the victim's office in which the victim found the defendant and the place of damage, the victim's movement, and each investigation report and the video CD are also about the CCTV images that the defendant's specific defendant and the defendant entered a Lel, the CCTV images that the victim and the defendant have a fixed response to voice, and the seizure report and the seizure report and the seizure list are seized without permission of the defendant, and each of the above evidence is not directly related to the facts charged that the defendant committed an act of similarity under the agreement with the victim. Ultimately, each of the above evidence is not directly related to the facts charged that each of the above evidence was raped by the defendant by threatening the victim. Ultimately, evidence as to the fact that the defendant committed a similar rape, such as the facts charged, should be proved by the victim's court statement, each stenographic record (the victim's statement) (the victim's statement), the police statement about the victim, and the statement of the victim in the prosecutor's statement against the victim, and the witness statement in the prosecutor's office.

2) Each statement made by the police officer of the victim, the prosecution, and this court is the fact that the defendant threatened the victim at the time, time, and place indicated in the facts charged, thereby suppressing the victim's resistance and committing similar rape. However, in light of the following circumstances revealed by the evidence duly adopted and investigated by the court, it is difficult to view that the victim's statement has probative value to the extent that there is little doubt about the authenticity and accuracy of the statement.

A) The consistency of the statements made by the victim

The victim stated each of the facts of damage at the police station on June 22, 2017, June 30, 2017, and July 17, 2017, at the prosecution on August 23, 2017, and at this court on October 17, 2017. Each of the victim's statements is not consistent with the victim's statements as follows, and the victim's statements are suspected of the credibility of the victim's statements because the content becomes more concrete and clear as time elapses.

(1) Statement on the act of similarity in June 19, 2017

On June 22, 2017, the victim stated to the effect that "the defendant was off her clothes, she was off his/her clothes, and that he/she was off from his/her clothes. He/she does not want to be off his/her clothes. If he/she does not want to do so, he/she would be off his/her clothes. He/she then put his/her sexual organ in the front line while he/she was off his/her clothes." (Evidence Nos. 29 through 32 of the evidence record). On June 30, 2017, the victim made a statement to the effect that "the defendant was off his/her clothes, and she was off his/her clothes." If he/she was off his/her clothes, he/she did not want to do so, he/she should be off his/her clothes if he/she did not want to do so."

(1) On July 17, 2017, the police officer made a statement to the effect that “I have been placed on the lying behind the match (Evidence No. 135 or 139). I stated to the same effect as the police investigation.

However, on August 23, 2017, the victim was able to see why he was able to see that he was unsatisfying, "I would like to see that the defendant was unsatisfying," and "I would like to see that I would like to see that I would like to see that I would like to unsatisfy," and that I would like to see that I would like to see that I would like to unsatisfy off the suspect's clothes when I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see "I would like to escape," and that I would like to see that I would like to see that I would like to escape."

(2) On June 20, 2017, the victim appeared to have been cut from the 1st investigation of the police on June 22, 2017, and he also saw her her stroke, so far as she can do so. As such, she would have to do so once she was her cleaning and smelled, and she would have no choice but to do so. The she was she was 100,000,000 and she was 1000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000.

그런데 피해자는 2017. 8. 23. 검찰 조사에서 '피고인이 모텔에 가자고 할 때 전날과 같은 일을 당할까봐 무서워서 피고인이 차에서 내린 사이에 도망칠 계획으로 "차에 그냥 있고 싶다"고 했으나 피고인은 협박식으로 "좋은 말로 할 때 가자"고하였고, "모텔에 들어갈 때 CCTV에 찍힐 수 있으니 아무렇지도 않은 척 얌전히 들어가라"고 해서 무서웠지만 어쩔 수 없이 따라갈 수 밖에 없었습니다. 모텔방에 들어간 후 피고인이 저에게 "화장실에 들어가서 박박 씻고 오라"고 하였고, 이때도 첫날처럼 샤워를 하고 전날부터 입고 있던 크롭티와 청바지를 모두 챙겨 입고 나왔습니다. 샤워를 하고 나오니 피고인은 옷을 이미 모두 벗은 상태였고, 피고인이 제 옷을 벗길 때 "하지 말라"고 하면서 피했는데 피고인이 손을 들고 때리려는 동작을 보이기도 해서무섭고 온몸이 떨려서 옷을 벗길 때 피고인을 발로 차거나 하는 등 저항할 생각을 하지는 못했습니다. 그리고 이날은 제가 옷을 다 벗기 싫다고 해서 그런지 첫날처럼 상하의를 모두 벗기지는 않고 하의만 벗겼고, 바지와 팬티를 한꺼번에 벗겼으며, 제 몸을 침대로 잡아끌어서 뒤집어 엎드리게 한 채로 양팔을 손으로 잡고 항문에 성기를 삽입하여 사정하였다'라고 진술하였으나(증거기록 제610, 611쪽), 2017. 10. 17. 이 법정에서는 피고인이 증인과 함께 모텔로 들어갈 때 "CCTV 찍힐 수 있으니 아무렇지도 않은 척 하면서 얌전히 들어가라"고 이야기했었는지, 피고인이 증인의 옷을 벗길 때 증인이 하지 말라고 하였지만 피고인이 손을 들어 때리려는 시늉을 하여 무서워서 저항할 생각을 할 수 없어서 옷을 벗었는지, 피고인이 손으로 때리려는 시늉을 한 적이 있는지, 피고인이 "이거는 니 무덤까지 가져가라. 나랑 있었던 일을 누설하지 말고, 니 입에서 나오면 죽여버리겠다"라고 이야기한 적이 있는지 잘 모르거나 기억이 안 난다는 취지로 진술하였다.

(3) As seen above, the victim's statement in the police immediately after sexual intercourse only appeared relatively simple, but it is difficult to find a detailed description of the content or behavior of the defendant's intimidation. On the other hand, the victim's statement specifically stated the new matters that were not mentioned at all in the previous investigation about the specific circumstance of the case up to the prosecutor's investigation, the conversation between the defendant and the defendant, the specific behavior of the defendant, etc. up to the investigation by the prosecutor's office, and the specific behavior of the defendant. It is natural and consistent with the rule of experience that people's memory takes place in time, and it is apparent that the victim's statement is becoming clear and clear that most of the contents stated by the prosecutor's office are not well memory or know about it. Meanwhile, the circumstance up to each act of similarity between the defendant and the victim in this case is closely related to whether the victim refused the sexual relation with the defendant, the attitude and degree of intimidation by the defendant's use by the victim, etc., and thus, it is not consistent with the victim's statement in this part.

B) Statement concerning the statement circumstances

With respect to the circumstances in which the victim made a statement in detail at the police station unlike the police station, the reason why the victim did not talk in detail at the time when the police was investigated is that his father was present at the time, and that he was wanting to be investigated as soon as he was present at that time. However, the victim was accompanied by his father to the Seoul Southern Seaba Center (I and II) and the police station (I and III) in order to undergo the police investigation. However, the father of the victim did not participate in the process of recording the victim's statement at the Seaba Center, and in the police station, the police station stated that the victim did not know about the case in detail as to the "case," and that the father would refuse to attend the police station because it is difficult for the father to attend, and that the victim's father would not easily be present at the time when the victim made a statement outside of the police station, and that the victim did not have any specific opportunity to participate in the investigation.

C) According to the victim's investigation report [the manner in which the chief of the news office attracts the victim to enter Lel (6,20.) and CCTV video and internal investigation report (the additional criminal investigation into the place of crime committed while accompanying the victim) before and after the instant crime was committed, the Defendant parked the vehicle outside the telecom on June 20, 2017 and enters the telecom with the victim at around 11:17, and the victim enters the telecom with the victim, and the victim enters the place of business with the victim at around 6, 2017, around 01:01:36, around 03:08 of the same day, or moves the victim with the defendant after completing the amusement facility at around 03:08.

In addition, even according to the statement of the victim, the victim did not go in and work together with the defendant even though the victim was involved in each of the similaritys in this case from the defendant two times or more, and furthermore, the defendant went together with the defendant, and the behavior of the victim is difficult to be considered as the behavior of the victim who suffered sexual assault from the defendant.

D) The authenticity, etc. of the statement

피해자는 경찰 2회 조사시 '아버지가 듣고 있는지'에 대하여 상당히 경계하고 의식하는 모습을 보이고 있고(증거기록 제132쪽), 검찰에서 조사받을 때에는 '아버지도 걱정이 많으십니다. 꼭 엄격하고, 감옥에서 정신차리고 나오기 원하십니다.'라고 진술하기도 하였다. 또한 수사보고(피해자 진술청취 과정)에 의하면, 피해자는 아버지와 함께 검찰에 출석하여 아버지가 동석하지 않은 상태에서 진술을 하면서도 "밖에 아빠가 계신 것은 아니죠?"라고 하면서 주변을 상당히 신경 쓰는 모습을 보이기도 하였고, 점심식사 시간 이후에는 갑자기 태도를 바꾸어 진술을 거부하는 등의 모습을 보이기도 하였다. 이러한 사정에 피해자가 경찰에서 "저도 궁금증 있으니까. 그냥 호기심으로 그랬는데 그 사람이 자기 거 해달라고 하고."(증거기록 제30쪽), "호기심으로 그냥 하겠다고 했죠. 그래서 싫다고 했어요. 바로 하고 싶긴 했는데 싫다고 했어요. 저 너무 싫죠."(증거기록 제138쪽)라고 진술한 점, 피해자가 '아빠가 저한테 좀 안 좋은 행동을 했었어요, 제가 계속 노래방 돌아다니고 그러니까 아빠가 실제로 그렇다라고 얘기를 해줬는 데 저는 그게 성폭행인줄 알고 경찰에 신고를 했었어요.'라고 진술하고(증거기록 제146쪽), 피고인도 피해자로부터 '아버지가 자기 몸을 만진다. 그리고 돈을 벌어야 한다. 죽어도 집은 안 간다' 라면서 집에 들어가기 싫어하였다고 진술하고 있는 점을 아울러 감안하면, 피해자가 피고인과 합의 하에 유사성행위를 하였다 하더라도 아버지를 의식하여 두려움과 심리적 압박에 의해 허위로 진술하였을 가능성을 배제할 수 없다.

C. Therefore, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the facts charged in the instant case, which the Defendant committed a similar act by threatening the victim, was proven without any reasonable doubt, and there is no other evidence to prove the facts charged in the instant case.

4. Conclusion

Therefore, this part of the facts charged against the defendant constitutes a case where there is no proof of crime, and thus, the judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and this part of the judgment of innocence is announced under the main sentence of Article 58(2) of the Criminal Act

The presiding judge shall be changed.

Judges Tae-young

Judicial Chief Judge;