2017Mahap1190 Rape

A

Kim Jong-young (prosecutions) and Yang-soo (public trial)

Law Firm B (Attorney in charge C)

February 14, 2018

The defendant shall be innocent.

1. Summary of the facts charged

The defendant is a person who had been aware of the victim from about five years ago.

On May 5, 2017, between 08:30 on the same day and 09:00 on the same day, the Defendant: (a) at the victim E’s residence in Gwanak-gu in Seoul Special Metropolitan City; (b) at the victim’s residence in Gwanak-gu, Seoul Special Metropolitan City from around 08:30 on May 5, 2017, the Defendant: (c) at the victim’s home, under the influence of alcohol, had the victim feel her desire to commit rape while moving to the toilet floor; (d) placed the victim on the bed while moving to the bed; and (e) tried to engage in sexual intercourse with the victim on his own hand when the victim was off from the Defendant’s shoulder and her faceed with the Defendant’s shoulder; and (e) had the victim tried to engage in sexual intercourse with the victim, and (e) the Defendant did not have attempted to call “the victim or she continued”, but did not have any intention to resist.

2. Summary of the defendant and his defense counsel

Upon receipt of a request from the victim for help and delivery, the Defendant looked at the victim's residence, which was used in the toilet, on the part of the victim, whether the victim was on board and was on credit. The victim continued to be aware of the defendant. The defendant was aware of the victim's desire in the process of communicating with male-gu, and the victim was able to attempt suicide again in an urgent thought, and there was only a fact that the victim's cell phone, knife, knife, and drife were in the toilet and went out of the above residence, and there was no act of attempting to sexual intercourse or having sexual meaning by assault or intimidation against the victim.

3. Determination

A. In order to establish the crime of rape, the perpetrator’s assault and intimidation must be such as to make it impossible or considerably difficult to resist the victim’s resistance. Whether the assault and intimidation were to make it impossible or considerably difficult to resist the victim’s resistance should be determined by comprehensively taking into account all the circumstances, including the details and degree of the assault and intimidation in question, the developments leading up to exercising force, the relationship with the victim, and the sexual intercourse at the time and the post (see, e.g., Supreme Court Decision 2001Do4462, Oct. 30, 2001). In order to establish the commencement of the crime of rape, there should be violence and intimidation recognized as a means of rape. Direct evidence consistent with the facts charged on the record should be proven by the victim’s statement, and the remaining evidence is merely based on the victim’s statement, etc., and the victim’s statement should be determined based only on the victim’s statement, and it should be determined whether the victim has sufficient probative value and consistency in the charges (see, e.g., Supreme Court Decision 20101Du14.

Meanwhile, in a criminal trial, the burden of proof for the facts constituting an offense prosecuted is to be borne by a public prosecutor, and the conviction of guilt is to be based on the evidence of probative value, which makes a judge sure that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the defendant, the interest of the defendant cannot be determined (see, e.g., Supreme Court Decision 2012Do3722, Sept. 26, 2013).

나. 피해자는 수사기관과 이 법정에서 "피고인이 화장실에 누워 있던 자신을 양팔로 들어 침대로 옮겨 눕혔고, 원피스를 위로 올리고 성기가 보일 만큼 팬티를 내렸다. 이에 발로 피고인의 상체를 찼는데 당시 피고인은 상의와 하의를 벗고 팬티와 런닝만 입고 있었다."라고 반복하여 일관되게 진술하였다. 피해자가 당시 목격하였다는 피고인의 속옷에 관한 진술 내용(증거 기록 14쪽)은 이 사건 당일 피고인의 속옷을 촬영한 사진에 나타난 형태, 색상, 무늬 등과 대체로 부합하여(증거기록 34, 42쪽)1), 피고인이 상·하의를 탈의한 상태에 있었다는 피해자의 진술에는 객관성이 충분히 확보되어 있다.

Therefore, according to the victim's statement, it is recognized that the defendant was placed on the bed of the victim's bed, and the victim's panty panty in the state of being spanched and spanched with the victim's bed. According to the above facts of recognition, it is presumed that the defendant had an intention to have sexual intercourse with the victim, or sexual intercourse with the victim.

C. However, in light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, it is difficult to view the Defendant’s statement or assertion natural or reasonable, and there are some parts that are difficult to accept. However, the evidence submitted by the prosecutor alone cannot be deemed as sufficiently proven to the extent that there is no reasonable doubt that the Defendant’s exercise of force to the extent that it was impossible or considerably difficult to resist the victim due to rape, and there is no other evidence to acknowledge it.

1) First, it is difficult to conclude that the Defendant committed assault or intimidation against the victim as a means of rape solely based on the fact that the victim was her panty, who is lying on the part of the victim, to have sexual intercourse with the victim, for the purpose of rape. Moreover, prior to panty, the Defendant only moved the victim from the toilet to the bed, went away from the bed, and there is no other means of exercising the victim’s specific force, and thus the victim has already been exposed to any fear. Rather, the victim cannot be deemed to have been said to have been exposed to the situation. Rather, the victim expressed his panty in light of the fact that the Defendant sent the Defendant’s body to her panty, and the victim was tight (13 pages of evidence record, witness record page 19 pages), the victim clearly expressed his intention to refuse or resist the Defendant’s action, i.e., the Defendant’s action.

2) With respect to the subsequent circumstances, the victim stated in this Court that "at the time, I would see that I would see that I will do so, from that time to that time, we will do so, and that I will not take the clothes in the following manner: (2) The victim stated in this Court that "I will do so at each time, I will do so, and you will not take the clothes, and I would like to do so." (2) In the investigative agency.

In addition, the victim stated that "the defendant was able to take a severe bath, sealed the two arms into the wall, and followed about about four knife 2) face knife with knife." (Evidence No. 13 pages). According to the victim's statement, the type of force that the defendant inflicted on the victim in order to have sexual intercourse with the victim was assaulted three to four times by the victim, and there is no ground to know the degree of the victim's assault, and it is insufficient to view that the degree of force that the defendant inflicted on the victim was unable or difficult to resist by the victim's statement alone.

3) Therefore, it is insufficient to acknowledge the fact that the victim’s statement to the effect that the defendant was intending to have a panty sexual intercourse with the victim after putting the victim on a bed on a bed on a bed, and panty, and there is no other evidence to acknowledge it (the evidence that the defendant attempted to rape the victim is the only victim’s statement. The victim stated in this court that there was no fact that the defendant did not have an act of sexual meaning to the victim as seen earlier, in addition to the act that the defendant exceeded the victim’s panty as seen earlier. 4) In addition, in light of the following circumstances, it is difficult to conclude that the defendant had the intent to have a forced sexual intercourse at the time of the above assault, or that the defendant initiated an impossible or difficult to resist the victim due to such intent.

A) The Defendant did not perform any act to give sexual meaning to the victim immediately before or after the assault, and the victim stated to the effect that “it is certain that the Defendant did not attempt to spanty or to spant the body part of the chest or body or to spanch into the body part of the Defendant’s statement (Evidence E, Book No. 20, 21 b) that his physical form is 186cc or 93cc and the body part of the victim’s statement (Evidence No. 27 m.) and that the victim’s physical form was relatively distorted compared thereto and at the time the victim’s dead body was relatively easy, and the Defendant did not proceed to exercise physical force other than spanching spanch.

C) The victim stated that "I am I am I am I am I am I am I I am I am I I am I I am I I am I I I am I I am I I I am I I am I I am I I am I I am I I am I I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I

5) On May 4, 2017, the victim was informed of the victim's residence password by the message "F." On May 4, 2017 without any contact with the victim, and the defendant knew on May 5, 2010 that 00 "the victim was locked," and stated that the victim would have been able to look at the victim's sexual intercourse with the victim, such as the victim's message "I will to know that ○○ was f.o.m., the victim's sexual intercourse with the victim," and that the victim would not have been able to read the victim's sexual intercourse with the victim's other message "I wish to leave the victim's e.m., other than the victim's e.m., the victim's sexual intercourse with the victim's e.m., the victim's e.g., the victim's e., the victim's e.b., the victim's e.m., the victim's e.

4. Conclusion

Thus, since the facts charged against the defendant constitute a case where there is no proof of crime, it is decided as per Disposition by the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge shall be changed.

Judges Tae-young

Judicial Chief Judge;

1) The Defendant shall be off, and the Defendant shall be off, and the Defendant shall be off, with the panty panty in a flat white chrode, and the victim shall report and memory it.

The investigative agency asserts that the victim had been witnessed in the past. However, the victim had been experienced in the past.

and on the same day of the instant case, the Defendant made a statement by advertising that he would have been suffering from white mergs as a matter of course.

It is difficult to view the above argument, and even if it is based on the above argument, the victim cannot reasonably explain the statement to the defendant's panty characteristics.

In addition, the victim stated that he did not have the clothes of the defendant prior to the instant case (the E-record page 4 pages of the witness).

2) The statement about 'the right to wrong' seems to be a statement based on the victim's mistake.