2018No3264 A. Rape

(b) Violation of Information and Communications Network Promotion Act;

(c) No height;

(d) Abetting an offender;

(e) Rape;

1.(a)(c) A;

2.e. B

Defendant A and Prosecutor

The highest court, the type of prosecution, and the public trial for the leather;

Law Firm Esel, Attorney Lee Sung-han (Defendant A)

Attorney Kim Jong-sung (the national election for the defendant B)

Suwon District Court Decision 2018 Gohap98 Decided November 8, 2018

March 21, 2019

Of the judgment of the court below, the conviction against Defendant A shall be reversed.

Defendant A shall be punished by imprisonment with prison labor for a year and two months.

The appeal filed by the prosecutor against the charge of rape (the defendant A) and the charge of rape prevention (the defendant B) in the part not guilty of the judgment of the court below is dismissed.

1. Scope of adjudication of this court;

The court below found Defendant A guilty of the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc., without accusation, and the charge of quasi-rape, and sentenced Defendant B not guilty of the charge of rape and quasi-rape. The court below acquitted Defendant A of the charge of rape and the charge of quasi-rape. As to this, Defendant A appealed of the guilty part. Defendant A appealed of the guilty part, and Defendant B appealed of the charge of rape among the guilty part and the acquitted part, and Defendant B appealed of the charge of quasi-rape. Therefore, the part of the non-rape and the charge of the non-rape and the charge of the non-rape of Defendant B against Defendant A, which did not appeal by the Defendants and the prosecutor, was separated and confirmed as it is (see, e.g., Supreme Court en banc Decision 91Do1402, Jan. 21, 1992). The scope of the judgment of this court is limited to the guilty part of the judgment of the court below and the charge of the non-rape and the part of the innocence against Defendant B.

2. Summary of grounds for appeal;

A. Defendant A

The sentencing of the lower court against Defendant A is too unreasonable.

(b) Prosecutors;

1) Mistake of facts (as to the defendant)

A) Defendant A obtained the victim’s trust and awareness, and used the victim’s unstable mental condition to take advantage of the victim’s unstable mental condition, thereby causing confusion to the victim if Defendant A’s warning was given if Defendant A would be punished. Therefore, even though Defendant A could sufficiently recognize the fact of rape of the victim in a situation where it is considerably difficult to resist his/her act, the lower court acquitted Defendant A of the charge of “Rape” of the facts charged.

B) Although Defendant B could fully recognize the fact that he attempted to commit rape against Defendant A by notifying the victim’s personal status to Defendant A, Defendant B was not guilty of the charge of “rape assistance” in relation to Defendant B, the lower court erred by misapprehending the legal doctrine.

2) Unreasonable sentencing (as to Defendant A)

The lower court’s sentencing against Defendant A is too uncomfortable and unfair.

3. Determination

A. Ex officio determination

1) Articles 157 and 153 of the Criminal Act provide for a confession prior to the final judgment of a case reported by a person who committed an innocent crime to the extent that he/she voluntarily surrenders himself/herself before the judgment of the reported case or disciplinary action becomes final and conclusive, the punishment shall be mitigated or remitted.

2) According to the records, although Defendant A denied the criminal facts of the crime of false accusation as stated in the judgment of the court of first instance, Defendant A appealed on January 17, 2019, which is the date of the first trial of the court of first instance, on the ground of an unfair punishment, and all the charges on the part found guilty at the court of first instance are recognized. Therefore, with respect to the crime of false accusation as stated in the judgment of the court of first instance, the part of the judgment of the court below cannot be maintained as it is, on the ground that there are grounds for the necessary mitigation or exemption of punishment as stipulated in Articles 157 and 153 of the Criminal Act as to the crime of false accusation as stated in the judgment of the court of first instance, and the remaining criminal facts of Defendant A as stated in the judgment of the court of first instance as concurrent crimes under the former part of Article 37 of the Criminal

3) However, despite the existence of the above reasons for ex officio destruction, the prosecutor's above argument of mistake of facts is still subject to the judgment of this court, and this is examined in below.

B. Judgment on the prosecutor's assertion of mistake

1) As to Defendant A

A) Summary of the facts charged

On August 15, 2017, Defendant A subscribed to the clinic called “F” to mobile phone Emp, and requested the victim (D) to introduce and request that the victim be an Emna used by Defendant A. On August 18, 2017, Defendant B entered the victim’s cell phone Emp, “F used by Defendant A” to register the victim’s cell phone Emp, “F,” and Defendant A used the victim’s Emp, “F,” with the victim’s words “F,” and then he stored the victim’s public morals with another country. In response to returning to the Republic of Korea, she opened the JJ house for a large period of time, and opened the victim’s sexual intercourse with the victim’s family members, “F,” which would have a big effect on the victim’s sexual intercourse with the victim, and then opened the victim’s sexual intercourse with the victim’s family members at the victim’s 2nd time.

B) Determination

The lower court found the Defendant not guilty of this part of the facts charged, considering the detailed basis for its determination.

In a criminal trial, the burden of proving the facts constituting an offense charged is to be borne by a public prosecutor, and the conviction shall be based on evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant should be determined (see, e.g., Supreme Court Decision 2009Do1151, Jul. 22, 2010).

Examining the evidence legitimately adopted and examined by the court below in light of the records based on the above legal principles, the evidence alone presented by the prosecutor cannot be deemed as having been proven to the extent that there is no reasonable doubt. Thus, the judgment of the court below that acquitted the public prosecutor of this part of the facts charged did not err in misconception of facts, as alleged by the public prosecutor. Accordingly, this part

2) As to Defendant B

A) Summary of the facts charged

Defendant B, with knowledge of the fact that the actual user of “F” is to have sexual intercourse with the victim by threatening the victim (D) by using the “F” as a person who actually uses the “F,” and, on August 18, 2017, by allowing the victim to register the victim’s mobile phone Emp, “F used by Defendant B,” as an E clinic, and aiding and abetting A by facilitating sexual intercourse with the victim on August 27, 2017, by allowing the victim to register the victim’s mobile phone Emp, “F used by Defendant B,” and without notifying the actual user of the fact that he/she is A, without notifying A of the fact that he/she is his/her father and is currently dead with his/her mother.

B) Determination

Since aiding and abetting under the Criminal Act refers to direct and indirect acts that facilitate the commission of a principal offender with the knowledge that the principal offender is committing a crime, aiding and abetting crime should have the intention to commit the so-called aiding and abetting and that the principal offender's act constitutes an element of a crime (see, e.g., Supreme Court Decision 2005Do6056, Apr. 29, 2005).

In full view of the evidence duly admitted and examined by the court below, the following circumstances are revealed as follows: ① Defendant B had consistently known from the investigative agency that Defendant A was a person who actually uses the Ethical Ethy called “F,” and Defendant B stated that it was merely an introduction of “F to the victim (the defendant A also denied the conspiracy of the crime of rape with Defendant B from the investigative agency to the investigation agency). ② The victim stated that Defendant B was the victim who had sexual intercourse with F because he thought that the victim was the same person as F, but the victim stated that the victim was the victim B was the victim because he was the victim of the crime of rape in this case. However, it is different from the actual facts, ③ The victim was the victim’s complaint with Defendant B in the court below, and there was no error in the misapprehension of the legal principles and the facts charged by the prosecutor as alleged in the facts charged. Accordingly, the prosecutor did not err in the misapprehension of the legal principles as to this part of the charges.

4. Conclusion

Therefore, since the conviction part of the judgment of the court below against Defendant A has grounds for reversal under the above authority, the part of the judgment of the court below against Defendant A among the judgment below under Article 364 (2) of the Criminal Procedure Act is reversed without examining the above allegation of unfair sentencing by Defendant A and the prosecutor, and the part of the judgment of the court below against Defendant A is reversed, and it is again decided as follows through pleading. The prosecutor's appeal against rape (the defendant A) and rape assistance (the defendant B) among the part of the judgment of the court below's acquittal is without merit, and it is so dismissed in its entirety

【Grounds for the new judgment against Defendant A: The guilty part of the judgment of the court below

Criminal facts

The facts constituting an offense acknowledged by this court are identical to the corresponding part of the judgment of the court below, which is stated in Chapters 14 through 18 of the second half of the judgment of the court below. Thus, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act

Summary of Evidence

The summary of the evidence recognized by this court is identical to the corresponding part of the judgment of the court below, in addition to the fact that the part "1.1. part of defendant A's legal statement" in Part V and VII of the judgment of the court below is used as "the legal statement of defendant A", and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 74(1)3, 44-7(1)3 (a) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (the repetition of language and text causing fears in fear or apprehensions), 156 of the Criminal Act, Article 151(1) and 31(1) of the Criminal Act (the occupation of a person whose crime is extradited and the choice of imprisonment)

1. Statutory mitigation;

Articles 157, 153, and 55(1)3 of the Criminal Act (as the defendant A has led to confession, the crime of false accusation is committed)

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment prescribed by the most severe offense)

Reasons for sentencing

Defendant A recognizes the criminal facts of each of the crimes as indicated in the judgment of the court in the trial, and it is recognized that Defendant A paid KRW 50 million to the victim at the court below, and agreed with the victim at the time of the trial.

However, the crime of this case is committed by Defendant A, taking into account the following factors: (a) the victim repeatedly arrived at the text message causing fears or apprehensions; (b) the victim made the victim rapes the Defendant; and (c) the victim instigated the criminal escape against the Defendant; and (d) the crime is not good in quality; (b) even before the instant case, Defendant A repeated the Defendant even though there was a criminal record of having been sentenced several times by committing the crime of taking money and valuables hotly, etc. by giving the Defendant’s horses, etc.; and (c) otherwise, Defendant A’s age, character and behavior and environment, motive, means and consequence of the crime; and (d) the sentencing conditions specified in the argument of this case, such as the circumstances after the crime, and the scope of recommended sentences according to the sentencing guidelines set by the Supreme Court

Judge Park Jong-chul

Judges Cho Young-soo

Judge Credit Guarantee

1. 1. The scope of applicable sentences by law: Imprisonment for one month to seven years;

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

(a) An accusation;

[Determination of type] Type 1 (General Dismissal)

[Special Confession] Self-denunciation, Confession (Discretionary Elements)

[Scope of Recommendation] Reduction Area, one month of imprisonment to one year

(b) A crime of aiding and abetting an offender;

[Determination of Punishment] Escape, Concealment of Criminal, Escape of Criminal

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 4 months to 1 year

(c) Remaining crimes: No sentencing criteria are set;

(d) Scope of the recommended sentences according to the standards for handling multiple crimes: Imprisonment for not less than four months (the crime for which the sentencing criteria are set and the crime for which the sentencing criteria are not set are related to the former part of Article 37 of the Criminal Act, considering only the lower limit of the sentencing range in the sentencing criteria for the crime for which