[1] The degree of violence and intimidation and the criteria for determination thereof in the case of rape

[2] The case reversing the judgment of the court below or the determination of facts against the rules of evidence on the ground that it is difficult to view that the credibility of the victim's statement, consistent with the facts charged for rape and larceny, has been proven beyond reasonable doubt as to the facts charged

[1] 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. Whether the assault and intimidation were to make it impossible or considerably difficult to resist the victim, not only the content and degree of such assault and intimidation, but also all the circumstances such as the developments leading up to exercising force, the relationship with the victim, and the circumstance at the time of sexual intercourse, etc. shall be determined by comprehensively taking into account.

[2] The case reversing the judgment of the court below or the determination of facts in violation of the rules of evidence on the ground that it is difficult to view that the credibility of the victim's statement, consistent with the facts charged for rape and larceny, has been proven beyond reasonable doubt as to the facts charged

[1] Article 297 of the Criminal Code / [2] Articles 297 and 329 of the Criminal Code, Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do519 decided Apr. 14, 1992 (Gong1992, 1644), Supreme Court Decision 99Do2608 decided Sept. 21, 1999 (Gong1999Ha, 2275), Supreme Court Decision 2000Do1253 decided Jun. 9, 200 (Gong2000Ha, 1695), Supreme Court Decision 200Do1914 decided Aug. 18, 200 (Gong200Ha, 2036), Supreme Court Decision 200Do53081 decided Feb. 23, 2001 (Gong2000Ha, 2036)

Defendant

Defendant

Attorney Cho Nam-han

Seoul High Court Decision 2001No908 delivered on July 27, 2001

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. On June 5, 200, at around 22:30 on June 5, 200, the lower court recognized the fact that the Defendant was raped by having 230,000 won in cash on the part of the victim, using a doping 806 room located in Seocho-gu Seoul Seocho-gu, Seocho-gu, Seoul, with his own house (20 years old at that time) and carried the victim into his house, and maintained the judgment of the first instance court that held the victim guilty of rape and larceny by threatening the victim to prevent the victim from breaking his head debt by cutting the victim's head debt into his house, making the victim unable to do so, and throw away his head by drinking," and by threatening the victim's resistance at two times, and sexual intercourse at around 23:30 on the same day, the victim got 230,000 won in cash on the part of the victim's wall by using a gap in the toilet.

2. However, we cannot accept such fact-finding and decision of the court below.

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. Whether assault and intimidation were to make it impossible or considerably difficult to resist the victim, shall be determined by comprehensively taking into account all the circumstances, including the content and degree of the assault and intimidation, the developments leading up to exercising force, the relationship with the victim, the sexual intercourse at the time of sexual intercourse and the subsequent circumstances (see, e.g., Supreme Court Decisions 92Do259, Apr. 14, 1992; 9Do2608, Sept. 21, 1999).

B. The first instance court cited the defendant's partial statement, the victim's statement at the prosecutor's office and court (the second interrogation protocol), the victim's statement at the prosecutor's office and court, the victim's statements at the prosecutor's office of doping in which the defendant and the victim met, the employee's statement at the prosecutor's office of doping in which the defendant and the victim met in contact with the victim, and the court's statement at the court of first instance and the statement at the court of first instance cited it as evidence of guilt. The court below added the victim'

(1) First of all, the Defendant acknowledged the fact that police entered into a sexual intercourse to the court of original trial, but denied that it was a sexual intercourse by mutual consent with the victim and that it was not rape by suppressing the victim’s resistance, such as the statement in the facts charged.

The gist of the Defendant’s statement is that at around 21:00 on the day of the instant case, the Defendant agreed to set up a sexual relationship with the victim and 400,000 won. At around 22:0, at around 22:00, the Defendant entered the coffee shop designated by the victim to have sexual intercourse, and the victim made a false statement that there was no money between the shower and the shower. After concluding a sexual relationship, the Defendant’s statement was consistently denied rape.

(2) Next, in light of the police statement of the doping Scarman's employee at the place where the occurrence of the instant case occurred (the first instance prosecutor's statement in the prosecutor's statement appears to be a clerical error), when the Defendant paid accommodation expenses to the six-story Scarz and was placed in the 806 room, the victim was her seat, and the Defendant her seated with the Defendant, and her seated with the 806 room. Upon receipt of the order of the victim to ask for tobacco, 1 cigarette was put in the 806 room, and 2,00 won was collected to the 23:30,000 won, there were no particular circumstances. However, since the male was considered to have been removed from the 806 room without using his/her up and elevator, the victim was her seated with the 806 room, and then he/she did not have any other male employee, and then he/she did not have any other her seated with the 806 room.

(3) Next, in light of the legal statement of the head of Chang-gu, which was in contact with the victim and was in contact with the victim, the victim was in contact with the victim from November 1, 1999 to three months, and the telephone was in contact with the victim to the effect that the victim was raped from the victim more than 11 p.m. on the day of the instant case, but as seen later, the victim stated differently that he did not have a talk that the victim was raped by telephone, and that he did not have a statement that the victim was lost of money by telephone, and thus, it cannot be said that there is insufficient evidence to acknowledge the facts charged.

(4) Lastly, in relation to the fact-finding report, the police officer investigated the location and structure of the doping, and the content thereof, there was a building where the defendant and the victim were first located in the top of the coffee shop, which was located on the 6-8th floor of the building, and the "doping in the outer wall of the building" is recognized as having four-dimensional signboards on the signboard and the entrance door, and the fact that there was an ordinary structure that can be known to the general public, so it is only a material that makes it doubtful for the victim's credibility of the victim's statement that the police officer went to the front door.

(5) Ultimately, only the victim’s statement remains as evidence consistent with the facts charged.

On the other hand, at around 21:00 on the day of the instant case, the victim took the Internet hostings with the Defendant at a PC (PC) room, and made English dialogues with the Defendant at a Handphone phone call opened by the Defendant in the jury, and became the Defendant at a coffee shop in the new town where the victim was designated by the victim at around 22:00 on the same day.

As to the process of going to do so as the defendant, the defendant and the coffee 20 minutes met or 20 minutes met at the coffee shop, and the defendant got to sing. The defendant got to sing in a singing room. The defendant was going to sing up with his own lodging, books, and singing in a sing and going to sing down on the 6th floor without doubt that he did not know of his singing and going to sing down, and the defendant went to 806 sing down his hand and 806 sing in a 6th floor. At that time, he was to go to sing down his hand and sing off his ssing down his ssing and sing off his ssssing and sing off his sssssing and sing off his sing and did not seem to have any doubt.

On the other hand, as we look at tobacco, which had been able to contact with the defendant, after visiting the room, we did not see the way to see, and the defendant did not see that she was able to do so, and the defendant was able to do so, and she was able to see that she was able to do so by making her body by putting her head debt up by cutting off her body, cutting off her head with her body, and her head by drinking, and she was she was fright up in the toilet. As such, the defendant was able to her own body and she was fright up again to her body and she was fright up in the toilet. The defendant tried to she again she was able to she was fright up, again she again she was frighted, and she did not appear to have been she was able to have her own body after having her statement after having her own phone she was frighted (the part was she was her own body.).

C. However, it is difficult to believe that the statements by the victim are either inconsistent or difficult to be considered as the conduct of raped victims, and are contrary to objective facts and regulations.

(1) First of all, it is difficult for the Defendant to understand that the Defendant, who was aware of the fact that he had come to the English meeting at the late night, or had come to the house by singing together with the Defendant’s horse without doubt. In light of the objective situation where anyone was aware of the fact, such as the entry in the actual survey as mentioned above, if he paid a little amount of money, he first did not pay any attention while entering the house of a male, and thus, the victim’s statement that he went to the house by going to the house of a man cannot be understood as having known of the fact.

(2) 방안에서의 행적에 대하여서도, 피해자 스스로 피고인의 연락으로 종업원이 갖고 온 담배를 나누어 핀 사실을 인정하고 있고, 피고인이 주먹으로 자신의 머리를 때린 시기에 관하여 옷을 벗기기 전에 때렸다고 진술하기도 하고, 바지를 벗긴 후 혹은 상·하의를 모두 벗긴 후 때렸다고도 하여 그 진술의 일관성이 없으며, 피해자의 주장과 같이 주먹으로 머리를 심하게 구타당하고, 가슴을 짓눌리는 등으로 소리를 지르거나 도움을 청하지 못할 정도로 폭행을 당하였다면 머리나 가슴부위 등에 상당한 정도의 상해를 입을 만한데 아무런 상해진단서도 제출하지 못하고 있고, 다만 사건 직후 경찰에서는 머리가 조금 아프고 왼쪽 손목이 긁혔고, 손목이 아프다고 진술하다가, 원심에서는 그 이튿날 멍은 없었고 노랗게 된 상태였다고 진술하고 있으나, 상해부위의 사진 등 이를 입증할 만한 자료를 제출하지 못하고 있다.

(3) In addition, the victim is showing shower in the toilet after the victim entered into a sex relationship. However, the victim's behavior or attitude that the defendant first got out of the wind with the telephone level, but the victim's act or attitude that the defendant was fine rather than the employee's telephone asking out of the inside is nothing more than that after rape. If the victim was sexually killed and was rape as argued by the victim, the victim did not act even though he was able to help but did not act.

(4) After confirming the loss of money, the victim only stated that he did not have money to the employee, and that he did not have to take money to the employee. On the other hand, the victim made a statement that he did not have been raped and that he did not have to take money to the employee. On the other hand, the victim made a statement that he had been raped with the phone to the effect that he did not hear that money was lost and that he did not have been raped.

(5) In addition, it is difficult to point out that the victim is preparing for university entrance time and is receiving living expenses from her mother living alone in the region, but has a living environment that is not harmonious, such as possessing a light car, etc.

As such, it is difficult to view that the victim’s statement that he/she was raped against the Defendant was proven to the extent that there is no reasonable doubt about the part concerning rape among the facts charged of this case, and there is no evidence to prove otherwise.

D. If there are some circumstances, it is difficult to recognize that the Defendant stolen money only by the statement alone, although the fact that the victim stated in the record that “the Defendant would bring money to the employee.” However, it is insufficient to recognize that the Defendant had stolen money.

3. If so, the court below should have tried more in detail the circumstances before and after establishing a sexual relation with the victim, and further should have seen the credibility of the victim's statement that the defendant abuseds or threatened the victim with violence or intimidation, the contents and degree of the victim's resistance is impossible, or the defendant stolen money after going to the extent that it substantially difficult to resist the victim. However, accepting only the victim's statement and concluding that all the facts charged of this case is guilty of all the facts charged of this case by violating the rules of evidence. It is obvious that this affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)