2010No4 Violation of the Punishment of Sexual Crimes and Protection, etc. of Victims Act

(Housing Rape, Rape, etc.)

high 00 (72 years old, South) No person,

Defendant 2,00

Park Jong-chul

Attorney 000

Jeju District Court Decision 2009Gohap86 Decided January 21, 2010

March 31, 2010

The judgment of the court below is reversed.

The prosecution of this case is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

In order to drink alcohol, the Defendant discovered the victim who was locked in a sofashion and attempted rape in a timely manner by discovering the victim, but did not enter the singran bar from the beginning, and thus the Defendant did not establish a crime of intrusion upon residence. Nevertheless, the lower court convicted the Defendant of this case on the premise that the crime of intrusion upon residence is established. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence imposed by the court below on the defendant is too unreasonable.

2. The facts charged and the defendant's assertion and the judgment of the court below

A. Facts charged

피고인은 제주시 ** 읍 *** 에 있는 '**' 단란주점을 운영하는 피해자 김○○(여, 52세) 을 강간하기로 마음먹고, 2009. 7. 12. 02:30경 위 단란주점 안으로 침입하여 그 곳 룸 안 소파에서 잠을 자고 있던 피해자의 몸 위에 올라타 입으로 피해자의 목 , 가 슴 부위 등을 애무하다가 피해자가 잠에서 깨자 양손으로 피해자의 목을 조르면서 “ 조 용히 해, 얌전히 안 있으면 오늘 가만히 안 두겠다, 죽일 수도 있어”라고 협박하고 양 손으로 피해자의 양 손목을 잡아 눌러 피해자가 반항하지 못하게 하였다.

Then, the Defendant, by hand, tried to rape the victim after having teared, tear and panty by putting the victim’s pitrts and panty, and then, tried to commit rape. However, the victim was able to go out of the toilet by displaying the base, and the escape was not achieved from the wind.

B. Defendant’s assertion

The Defendant, while having not entered the above dan on the day of the instant case at an investigative agency, did not deny the entire crime, and attempted to rape by entering the above danran bar from the lower court to the trial of the party. However, the Defendant was arguing that entering the danran bar did not enter the beginning to rape the victim.

C. The judgment of the court below

The court below found the defendant guilty on the facts charged, on the ground that the defendant's act of entering the above danran bar constitutes a crime of intrusion upon residence, in light of the background, method and method of crime, the defendant's behavior before and after the crime, the circumstances leading to the defendant's entry into the dan bar prior to the crime, the victim's response method, the presumption intention of the injured party who

3. Judgment of the court below

A. Even if an ordinary person’s entry is permitted, a crime of intrusion upon residence is established when entering a place contrary to the explicit or presumed intention of the business (see, e.g., Supreme Court Decision 95Do2674, Mar. 28, 1997). As such, whether the Defendant entered the said dan, which was the purpose of rape, or entered the said dan at the risk of the victim’s objection from the beginning.

B. The Defendant entered the above danran on July 12, 2009 at around 02:30, but in light of the following circumstances, it is difficult to view that the Defendant entered the above danran bar against the victim’s will, such as that the evidence submitted by the prosecutor alone entered the victim to rape, etc., and there is no other evidence to prove otherwise.

In other words, the following circumstances acknowledged by evidence duly adopted and investigated by the court below: ① the place of occurrence of this case is a place where the general public may enter at any time during singran tavern business hours; ② the defendant entered the above singran bar through the open door which was opened at the time; ③ the victim was fing off the signboard at the time of entering the above singran bar; ④ the defendant did not carry any dangerous weapon at the time; and ④ the defendant did not look at the victim's singran bar while entering the singran bar so that he did not look at the victim's singran bar, and the defendant did not look at the victim's singran bar because he did not look at the victim's singran bar at the victim's singran; ⑤ the defendant did not think that singin the above singran bar before 3 days of the occurrence of this case, and the defendant did not think that singin the victim's sing bar again.

C. Sub-committee

Therefore, there is no proof of a crime regarding the entry into residence among the facts charged against the violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. (including rape, etc.). Therefore, the remaining facts charged are the attempted rape.

The attempted rape is a crime falling under Articles 300 and 297 of the Criminal Act, which is a case in which a prosecution can be instituted only upon a complaint of the victim under Article 306 of the Criminal Act. According to the letter of revocation of the prosecution (the record of the public trial) bound in the records of the public trial of the court of first instance (the record of the public trial of the court of first instance) the victim could recognize the fact of revocation of the complaint against the defendant around August 26, 2009, which was before the pronouncement of the judgment of the court of first instance, after the prosecution of this case was instituted. Ultimately, this part shall be dismissed pursuant to Article 327 subparagraph 5 of the Criminal Procedure

Therefore, the judgment of the court below which found the defendant guilty of the above charges of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Housing Rape, etc.) is erroneous in the misapprehension of the judgment.

4. Conclusion

If so, the defendant's appeal is reasonable, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is decided as follows.

As seen above, there is no proof of a crime regarding the entry into a residence among the above facts charged, and the victim's revocation of the lawsuit for the remaining attempted rape before the court of first instance after the prosecution was instituted and thus constitutes a ground for dismissing the public prosecution. As such, if part of the combined crime is not guilty and the remaining part constitutes a ground for dismissing the public prosecution, it is reasonable to render a judgment dismissing the public prosecution. Ultimately, the public prosecution of this case is dismissed pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act, and it is not acquitted separately from the disposition on the entry into a residence included in the above facts.

Park Ho-dae (Presiding Judge)

Injury

Multi-dryptability