2017Gohap302 Similar Rape

A

Han Jin-hee (Public Prosecution) and Kim Jung-hee (Public trial)

Attorney B

June 22, 2017

The defendant shall be innocent.

The summary of this decision shall be published.

1. Summary of the facts charged in this case

The defendant is a foreigner of Chinese nationality, and is a marina who works in Jung-gu Seoul Metropolitan Government C building 403 "D".

피고인은 2017. 1. 2. 21:30경 위 'D' 업소에서 마사지를 받기 위해 손님으로 온 피해자 E(여, 24세)를 침대에 엎드리게 한 후 피해자의 다리 부위를 마시지 하던 중 피해자가 입고 있던 반바지 밑단 부분으로 손을 넣어 피해자의 팬티 부분을 만지고 계속하여 피해자로 하여금 천장을 바라보도록 눕게 한 다음 피해자의 눈에 수건을 올리고 피해자의 허벅지 부위를 마사지하는 척 하다가 갑자기 피해자의 팬티 속으로 손을 넣어 10회 가량 피해자의 음부를 만지고 피해자의 질 안에 손가락을 넣고 피해자의 반바지와 팬티를 끌어내리고 혀로 피해자의 음부를 핥으면서 피해자의 가슴을 손으로 만졌다.

Accordingly, the Defendant raped the victim.

2. The gist of the criminal defendant and his/her defense counsel;

The Defendant, at the time and place stated in the facts charged of the instant case, only followed the victim by having mags in accordance with the normal marina course and did not commit similar rape.

3. Determination

As shown in the facts charged, there is a result of genetic appraisal of the appraisal taken by the victim's statement and the victim's body, etc., as evidence showing that the defendant raped the victim, such as similar rape.

However, in full view of the following circumstances, it is difficult to believe that the victim’s statement to the effect that the defendant was raped by the evidence duly admitted and investigated by the court is insufficient to recognize the defendant guilty of the facts charged in the instant case, and there is no other evidence to acknowledge this differently.

A. Circumstances concerning the credibility of the victim's statement

① On January 3, 2017, 2017, the following day of the instant case, when the victim was investigated by an investigative agency on the victim’s panty of the victim, the victim made a statement that “the victim’s panty of the victim tending to keep the victim’s panty upon the victim’s spanty was met” (Evidence No. 8 pages). When the victim testified from this court on May 29, 2017, the victim made a statement that “the defendant made a statement on May 29, 2017, she was the important part of the victim’s body. As such, the victim’s spanty was faced with the process of mathing and going beyond the large number. There was a lot of times to see the important parts during the process of mathing, and the more interview was made. In intentionally, the victim made a statement that she was aware of the relevant part, “At the beginning of the bridge mabbbbbbbbbbbing part,” was made into the part.

② On January 3, 2017, with respect to the situation in which the defendant puts the fingers into the victim’s sexual intercourse, the victim stated that “the victim got her fingers in the victim’s sexual intercourse, at the investigative agency, the Defendant’s hand contacted the victim’s panty side to the extent of 2 to 3 times, and the Defendant’s hand in the victim’s panty part. At the same time, the hand came into her panty part, and the hand was her fingers over at least 10 times.” At this court, the victim stated that “the victim was her fingers into the victim’s panty part, and her fingers directly and her fingers through the victim’s panty part, and again her fingers into the victim’s panty part, and her fingers into the part, and stated to the effect that the victim was her fingers.”

However, if similar sexual acts are carried out, it shall be possible to sell posts in half-bucks. It stated to the counsel's question "I knee or Hubbbbbbbbbs that it is not easy to do so." The counsel stated to the effect that "I am buck in the face of fingers without being able to do so," and that "I am buck in the face of fingers without being able to do so." After that, the victim made a statement to the effect that "I am buck in the face of fingers without being able to do so." After that, the victim made a statement to the effect that "I am buck up until I am in the face of the important part," and that the victim made a statement to the effect that I am son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

③ 피해자가 천장을 보고 누운 상태에서 피고인이 피해자의 팬티를 내리고 피해자의 가슴을 만지면서 혀로 피해자의 음부를 핥은 상황에 관하여 피해자는 수사기관에서 "피고인이 혀로 피해자의 음부를 핥고, 손으로 가슴을 만졌다"고 진술하였다(증거기록 9면). 그런데 이 법정에서는 피고인이 피해자의 머리맡에 서서 피해자의 팔을 위로 올려 합장 자세가 되게 하여 피고인의 두 다리로 피해자의 팔을 누른 후 몸을 숙여서 피해자의 바지와 팬티를 허벅지 기준에서 반 정도까지 내렸고, 피해자의 소매 안쪽으로 팔을 넣어서 피해자의 가슴을 직접 만졌으며, 혀로 피해자의 음부를 핥았다는 취지로 진술하였다.

피해자의 진술은 시간이 갈수록 구체화되었을 뿐 아니라 키가 크지 않은 피고인이 (피해자는 수사기관에서 피고인의 키가 171~174cm 정도 된다고 진술하였고, 피고인은 자신의 키가 170cm라고 진술하였다) 피해자가 누워있던 침대 머리맡에 서서 피해자의 양팔을 자신의 두 다리로 누른 채 상체를 숙여서 피해자의 음부를 핥았다는 것이 물리적으로 가능한지 의문이 든다.

④ 피해자는 천장을 보고 돌아누운 상태에서 피고인으로부터 마사지를 받은 상황에 관하여 수사기관에서는 "마사지를 시작한지 한 시간 정도 지났을 때, 피고인이 마사지가 다 끝났다고, 탈의실로 가면 된다고 하며 탈의실을 안내해줬다"라고 진술하였는데(증거기록 9면), 이 법정에서는 피해자가 엎드려 있다가 천장을 보고 돌아누운 상태에서 마사지를 어느 정도 받고 나서 합장 자세를 했고, 그 자세에서 피고인이 피해자의 음부에 혀를 댔을 때 밖에서 남자친구가 '자기야'라고 부르는 소리를 듣고 피고인이 놀라서 마사지를 급하게 마무리하는 식으로 해서 일어났다고 진술하였는바, 그 진술의 내용 역시 시간이 갈수록 구체화되고 있다.

⑤ The victim appears to not directly regard the Defendant’s specific act because the victim was either spawn down or spawn down from the Defendant’s inner gate, or spawn down by making a tent report. Considering the above, the victim appears to have perceived the Defendant’s act by brut, but the victim made a conclusive statement as to the detailed part of the Defendant’s act, such as stating that “the victim was aware of the Defendant’s act.” However, as seen earlier, it is difficult to readily believe this part of the statement given that the content of the statement on the background of damage the victim was perceived by brut.

6. On the grounds that the victim did not raise any particular objection to the defendant's similar rape, the investigative agency stated that "the victim did not have any difficulty in drinking up," and "I think that the victim might flee if she resist," and "I think that I would like to see that I would like to see that I would like to see that I would not have any other customer," and 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 that I would like to see the victim, because I would like to say I would like to see that I would like to see that I would not have any other customer, because I could not easily refuse the victim's request because I would like to see that I would like to see that I would like to know that I would not have any other customer in light of the fact that I would like to know that I would not have any other customer's will.

7) After receiving a marina paper from the Defendant, the victim sent a personnel record to the effect that he was well aware of being employed by the Defendant, and that he was able to do so, and that he was able to do so, and that he was able to do so on the part of the Defendant, who was in the front of the instant marina business where he was in the corridor, returned back to the Republic of Korea after concluding that he was “not less than 300,000” on the part of the Defendant who was in the instant marina business, and the attitude of the victim was very exceptional (the victim completed a marina paper around 22:46 on the day of the instant case and reported 112 as an indecent act on the instant case at around 00:15 on the following day).

8) The victim stated in this court that he reported to the investigative agency without showering after the instant case. According to the victim's statement, the physical part of the victim's body was contacted by the defendant. According to the victim's statement, the victim's chest, appearance, and appearance inside the chest, appearance, and appearance. According to the above gene assessment result, only the victim's chest, appearance, and appearance were detected (the victim's panty did not conduct genetic testing on the part of the victim's panty). Ultimately, the victim's statement is inconsistent with the aforementioned gene assessment result, which is an objective evidence (the National Institute of Scientific Investigation, can be detected by only the act done by hand).

B. As seen earlier, the fact that the results of genetic assessment in light of the circumstance is inconsistent with the victim’s statement is found. Meanwhile, it is recognized that the Defendant’s blood and marriage, which was suffered by the victim at the time of the instant case, was detected inside each side of the lower part of the lower part of the lower part of the panty and the lower part of the lower part of the lower part of the panty, but it is difficult to believe the victim’s statement that he was raped by the Defendant as seen earlier. According to the F’s statement, which is another marina branch of the instant marina branch office, of the instant marina branch office, the Defendant’s blood and marriage in the course of the victim’s mathing with the victim’s clothes, may not be ruled out the possibility that the Defendant’s blood and marriage in the process of taking the victim’s panty in the process of taking the victim’s panty in the course of leaving the victim’s clothes, and other Defendant’s panty route may not be ruled out.

4. 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, and the summary of the verdict of innocence is publicly notified under Article 58(2)

It is so decided as per Disposition for the above reasons.

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young