2018Gohap856 Rape

2018 Highis 1186(Joint Indecent Act by Compulsions), the forgery of private signature, the uttering of a false investigation signature, the State

Violation of the Civil Registration Act

A

Masunghee, Yellow (Public Prosecution), Park Jong-young (Public Trial)

Attorneys Kim Jong-hwa (Korean)

June 28, 2019

A defendant shall be punished by imprisonment for four years.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

The defendant shall be subject to employment restrictions for three years in each of institutions related to children and juveniles, etc. and welfare facilities for disabled persons.

Criminal facts

“ 2018Gohap856

On December 2, 2017, the Defendant was waiting for a bus at a Busan High-speed Bus Terminal (a.e., temporary name, inn),

20 years of age) With interest to the victim who visited Seoul, among the message that received and sent different telephone numbers, the victim visited Seoul on February 3, 2018, and around 17:30. On the day, the victim was able to drink at the Gangnam Station located in Seocho-gu Seoul, and the victim was able to do so at the near restaurant, and the victim was sleeped with a bus tag sleeped to do so on the day, and the two-way officetels sleeped to Busan, and the victim was h. (b) the other slicked to do so, and the other slicked to do so on February 4, 2018, after the victim was sleeped to the victim's body, the victim was slicked to the victim's body, and the victim was sleepd to the victim's body, and the victim was sleepd to the victim's body, and then the victim was sleeped to the victim's body.

"2018 Gohap1186"

1. Indecent acts by compulsion;

피고인은 2018. 7. 19. 04:50경 서울 서초구 E빌딩 지하 1층에 있는 '클럽 F'에서 피해자 G(가명, 여, 19세)에게 다가가 갑자기 피해자의 오른쪽 손목을 잡고 빠르게 피해자를 테이블 쪽으로 끌고 가 피해자를 소파 위로 올린 뒤 "처음부터 지켜보았다. 존나 귀엽네 씹할 년. 미친년. 쌍년"이라고 하면서 양손으로 피해자를 껴안고 피고인의 성기를 피해자의 아랫배에 대며 비비고 벗어나려고 저항하는 피해자를 힘으로 강하게 껴안고 있으면서 피해자의 치마를 들추고 혀를 피해자의 입 안에 넣으려고 하면서 피해자의 입술과 그 주변을 혀로 핥아 피해자를 강제로 추행하였다.

2. Violation of the Resident Registration Act.

At around 06:56 on July 19, 2018, the Defendant prepared a written statement at the office of the Women Youth Investigation Team at the Seocho-gu Seoul Seocho Police Station, Seoul, as distributed in Seocho-gu, on the same day, at around 07:13, and entered the name and resident registration number of J in the personal information column and used the other person's resident registration number unlawfully.

3. Forgery of private signature;

A. On July 19, 2018, at around 06:56, the Defendant, upon receiving a report on the crime set forth in paragraph (1) from “F of the above club”, forged another person’s signature for the purpose of exercising one’s name on his/her own column by stating the name of the saidJ in writing and exercising another’s signature on his/her own column upon receiving a demand for voluntary operation from Ha and Police Officers I called out.

B. On July 19, 2018, the Defendant prepared a written statement of Paragraph 2 at the office of the Women Youth Investigation Team at the Seocho-gu Seoul Seocho Police Station, Seoul, and forged another’s signature with the intention of exercising the J’s name written statement in the column of confirmation of investigation process.

4. Exercising the above investigation signature;

A. The Defendant, at the time and place specified in paragraph 3(a) and at the place specified in paragraph 3(a), submitted a forged document of voluntary action, stating the signature of the JJ, to a policeman, thereby exercising the signature of another person.

B. The Defendant submitted a written statement, including a written confirmation of the investigation process, signed by the J, as stated in paragraph 3(b), at the time and place of the entry in paragraph 3(b), to the above patrol officer and exercised the signature of another person forged.

Summary of Evidence

"2018 Gohap856"

1. The defendant's partial statement in the first protocol of trial;

1. Statements made by witnesses B in the second protocol of the trial;

1. The police statement concerning B;

1. Each gene appraisal report;

1. The offender's place, the 112 Reporting Report List, and the report on the results of field identification;

1. Letters, photographs and field photographs sent by the victim;

"2018 Gohap1186"

[Fact 1]

1. The defendant's partial statement in the fourth protocol of trial;

1. Each legal statement of witness G and K;

1. The police statement concerning G;

1. A written statement G and L;

1. A gene assessment report;

1. A table for 112 reported cases processing;

1. Voluntary report by force;

1. Photographs of the person suspected of being raised, and the photograph of the person suspected of being raised;

【Facts 2 to 4 at the Time of Sales】

1. Statement of the accused in the fourth protocol of trial;

1. Written statements of J (A);

1. Voluntary written consent;

1. Domestic investigation reports (related to the theft of name of a witnessJ);

Application of Statutes

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

Article 297 of the Criminal Act, Article 298 of the Criminal Act, main sentence of Article 37 subparag. 10 of the Resident Registration Act, Article 37 subparag. 10 of the Resident Registration Act, Article 239 of the Criminal Act, Article 239 (1) of the Criminal Act, Article 239 (2) and (1) of the Criminal Act (a point of exercising a false investigative signature)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes for rape prescribed by the largest penalty)

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. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); 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 of the Addenda to the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3(1) of the Act on Welfare of Persons with Disabilities

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from the Disclosure Order and Notification Order; 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 (the defendant has no record of criminal punishment for sexual crimes prior to the instant case; and the defendant’s sentence of imprisonment to the defendant, registration of personal information, orders to complete sexual assault treatment programs, and employment restrictions order alone appears to have the effect of preventing recidivism. In full view of the defendant’s age, environment, family relationship, social relationship, method and consequence of the crime, the degree of disadvantage and anticipated side effects of the defendant’s injury caused by the disclosure or notification order, and the effect of the protection of the victim, it is determined that there is a special circumstance that the disclosure or notification of the defendant’s personal information should not be disclosed or notified. Thus, the defendant’s order to disclose or notify

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

A. Regarding the point of rape, the Defendant, at the time of the instant case, attempted to have sexual intercourse with the victim and had a telephone conversation of the victim, but did not rape the victim as stated in the judgment.

B. Regarding the fact of indecent act by compulsion, the victim mistakenly selected the offender, although there was no fact that the Defendant was at the place of crime at the time of the instant case or there was no indecent act by compulsion as stated in the crime.

2. Determination

A. As to rape

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the credibility of the victim’s statement made in an investigative agency and this court is recognized, and the victim’s rapes as stated in the facts charged in the judgment of the Defendant. Accordingly, the above assertion by the Defendant and the defense counsel is not acceptable.

1) The victim made a concrete statement about the main part of the crime, including the process and details of the Defendant’s crime that occurred after the day immediately preceding the crime, and the situation from the discontinuance of the crime until the police officer arrives at the scene, and made a statement about detailed matters that are difficult to care without direct experience, and the contents of the statement are not in conflict with any other unreasonable and unreasonable parts or statements.

2) Meanwhile, in light of the fact that the victim had contacted with others for a relatively long time in the hotel toilet and bend, which is the place where the crime in this case was committed, the victim started telephone conversations on the part of the victim, considering the circumstance that the victim would have been faced with sexual assault, and thereafter, the victim demanded prompt entry by checking who was the victim, and the victim did not directly report 112 and reported it to another person, and then, the victim used text messages to prevent the Defendant from being booming with the police, etc., even if the victim did not contact with others, the victim was under surveillance and did not appear to have contacted with others freely. However, it cannot be deemed that the victim’s statement was credibility solely on the ground that the victim had made long-time telephone conversations at the place where the crime was committed.

3) The police officers, upon receiving the report 112 at the time, found that the victim’s DNA and panty are placed on the table boomed by the victim. In addition, the Defendant’s gene type was detected in and out of the part inside and outside of the bro-ray, the bro-ray inside and outside of the part of the bro-ray, the part of the victim’s chest, the ero-ray, the part of the victim’s ear, ero-ray, the chest, the part of the Defendant’s chest, the part of the back and the part of the panty negative, the Defendant’s gene type was found, and the Defendant’s gene type was found inside and outside of the bro-ray, the victim’s gene type was found in the part of the bro-ray and the part of the container collected from the table and the table at the scene of the crime and the part of the Defendant’s sexual flag, and the Defendant’s gene type was found in the part of the victim’s mouth.

4) The above site conditions and the results of a gene type test are consistent with the victim's investigation agency and legal statement about specific damage, such as the process that the defendant had been raped at the time, and the background leading to the wearing of the Red Sea, and the background leading to the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cryp of the cry

5) The instant crime was interrupted by telephone, and the victim reported the instant crime to himself/herself via a friend. The details of the victim’s report are natural, and the victim’s statement of false damage at the risk of sexual humiliation or criminal punishment, and there is no special circumstance or motive to mislead the Defendant. In addition, there is no fact that the victim requested the Defendant to agree on the amount.

B. On the part of indecent act by compulsion

In full view of the following facts and circumstances acknowledged by the evidence duly adopted and examined by this court, the credibility of the victim’s statement in the investigative agency and this court on the grounds that the victim designated the Defendant as the criminal offender is recognized, and the facts of indecent act by force as stated in the judgment of the Defendant can be acknowledged. Accordingly, the above assertion by the Defendant and the defense counsel is not acceptable.

1) The victim consistently stated to the effect that, from the investigative agency up to this court, he was charged with indecent acts by compulsion, such as the crime committed by someone at the time. While the face of the offender was not properly seen, the Defendant was inside the tables, and that the voice of the offender was called the Defendant as the offender, with the consent of the Defendant, and the voice of the offender was in accord with the Defendant. The content of the statement is not particularly inconsistent with unreasonable and unreasonable parts or statements.

2) The witness K, who was at the scene of the Defendant at the time, stated to the effect that “the victim does not have designated another person other than the Defendant as the criminal offender” in this court. This consistent with the victim’s statement that the Defendant was consistently identified as the criminal offender, and it is inconsistent with the victim’s statement that “the victim first was aware of the identity of the criminal, but the victim was designated as the criminal offender, but the victim was called as the criminal, and the voice of the Defendant was called as the criminal offender from then to then.”

3) In the evidence taken around the victim’s entrance and in his/her mouth, the victim’s gene type and the body of evidence was detected. The results of such gene type tests conform to the victim’s statement about the content of the crime. Meanwhile, the Defendant’s defense counsel asserted that the Defendant’s act using the same alcohol can lead to the above gene type tests if the Defendant’s act is a criminal. However, even if following the Defendant’s statement, the above club was conducted by the Defendant, as the Defendant’s act of doing so, the Defendant’s gene type in his/her entrance and the body of evidence was conducted by another person. As such, it is exceptional that the Defendant’s act of doing so was conducted after committing the crime, and then the Defendant’s act of doing so was conducted, and thereafter, the Defendant’s gene type was found less than the offender’s gene type in his/her recovered materials, and thus, it is not acceptable to accept the above assertion as above.

4) The Defendant’s defense counsel is likely to be the criminal of this case by one of the following persons:

Although the defendant asserts that it is difficult to confirm the facts against him, in light of the fact that he did not make any effort to confirm it, the above argument is difficult to accept.

5) As seen earlier, the victim consistently identified the Defendant as a criminal offender from the beginning. There is no special circumstance or motive that makes it possible for the victim to identify the Defendant as a criminal at the risk of criminal punishment by treating a person who is not the criminal at the risk of criminal punishment. In addition, there is no fact that the victim requested the Defendant to reach an agreement.

Reasons for sentencing

1. Scope of applicable sentences under law: Three years to forty-five years of imprisonment;

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

(a) A primary crime;

[Determination of Punishment] General Criteria for Sex Offenses (subject to 13 years of age or older)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for 2 years to 5 years

(b) A second crime;

[Determination of Type 1] A crime of indecent act by force (subject to 13 years of age or older) on the general standards for sexual crimes

General Indecent Act

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 6 months to 2 years of imprisonment

(c) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than two years and six months (the crime for which the sentencing criteria are set and the violation of the Resident Registration Act for which no sentencing criteria are set, the crime of forging and forging each private signature, and the crime of exercising each private signature is in a concurrent relationship under the former part of Article 37 of the Criminal Act; therefore, only the lowest limit of the sentencing range

(d) Scope of recommended sentences revised by applicable sentences: Three to forty-five years of imprisonment (where the scope of sentence recommended by the sentencing criteria differs from the scope of applicable sentences in law, it shall be subject to the scope of applicable sentences in law); and

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 sexual assault in this case was committed in an unfavorable manner: the Defendant, even though he was a hotel that he was silent, refers to a arbitr or house with the victim B, as if he was replaced by the victim's married person, and entered the hotel together with the above victim, rape with the above victim, and she committed indecent act in light of the details, method, and degree of the crime committed by she committed an indecent act in order to attract the victim's G in the club with the above victim's entrance.

The Defendant was informed of personal information of another person to a police officer dispatched after receiving a report as a crime of sexual assault, and committed an indecent act by compulsion in the judgment, and there is a greater possibility of criticism in the fact that the Defendant committed a crime of forging another person’s signature and using another person’s signature in the document prepared by committing the crime of indecent act by compulsion in the judgment. On December 8, 2004, the Defendant had a record of criminal punishment several times, including punishment under the suspended sentence of imprisonment with prison labor due to larceny, and committed the remaining crimes including indecent act by compulsion in the judgment, even though he was investigated as a suspect of rape in the judgment. The victims seem to have caused considerable mental shock and sexual humiliation due to each of the sexual assault crimes of this case, and have been punished against the Defendant. Moreover, the Defendant did not appear to be contrary to the view of denying all of the sexual assault crimes of this case by a defense that is difficult to understand.

The favorable circumstances of ○: the Defendant did not have any record of criminal punishment for sexual assault crimes prior to the instant case. Moreover, the Defendant appears to have committed either the victims or the intimidation at the time of the instant sexual assault crimes.

Where a conviction becomes final and conclusive on the judgment that constitutes a sex offense subject to registration and submission of personal information, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency pursuant to Article 43 of the same

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is prescribed pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 20 years pursuant to Article 45(1)2 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, considering the nature of each of the crimes in this case and seriousness of the crimes, it is not recognized that the period for registering personal information of the defendant is unreasonable, and therefore, the period for

The presiding judge, judges and assistant judges

Judges Doese

Judges Park Young-chul