2017Ma1209 Quasi-rape

A

Kim Ho-young (Court Prosecution) and Kim Young-Nam (Court Decision)

Law Firm B

Attorney C, D

April 5, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

Criminal facts

From March 15, 2017, the Defendant served as an employee in the “E restaurant”, and from April of the same year, the Defendant served as an employee with the victim F (n, 20 years of age) who served as an employee at the said business establishment. From May 14, 2017 to May 22:0, employees of the said business establishment, including the Defendant and the victim, were able to drink at the said business establishment located in Gangnam-gu Seoul, while drinking together with drinking at a new wall around May 15, 2017, and after drinking the alcohol at a new wall around May 15, 2017, two female employees, including the victim, became locked.

Around 05:00 on May 15, 2017, the Defendant: (a) 05:00, the locked victim was placed on the side floor of the sub-spam-type seat in the business establishment; (b) under the influence of alcohol, the Defendant: (c) placed the victim on both arms; (d) knee and knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee knee ke kle the victim’s sexual intercourse; and (d) put the victim’s sexual organ into the

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of H and I;

1. Statements made by witnesses F and J in the first trial records;

1. Partial statement of the suspect interrogation protocol of the accused by the prosecution;

1. Partial statement of the police interrogation protocol of the accused;

1. The prosecutor's statement concerning the F;

1. Statement made by the police of the F;

1. Investigation report (suspect's response to requests for comparative appraisal of DNA);

1. On-site CCTV - Application of CD-related Acts and subordinate statutes

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

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. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 fact that there is no history of criminal punishment against a sexual crime by the defendant, the registration of personal information of the defendant against the defendant, and the completion of a sexual assault treatment program, the defendant's age, occupation, family relationship, social relationship, the details and circumstances of the instant crime, other benefits expected by the disclosure or notification order, the effect of the crime, and the effect of preventing and notifying the defendant's personal information, and other various circumstances such as disadvantage and anticipated side effects).

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The victim did not have sexual intercourse with the victim at the time of the defendant's sexual intercourse, and the defendant did not have sexual intercourse with the victim by taking advantage of the victim's mental or physical disability or non-performance state.

2. Determination

In light of the following circumstances admitted by the evidence as seen earlier, it is reasonable to view that the victim was under the influence of alcohol at the time of the instant crime, and the victim was sexual intercourse with the victim by taking advantage of his or her mental or physical condition to resist. Accordingly, the Defendant and the defense counsel’s assertion cannot be accepted.

1) The victim, who was locked from the police to this court, she saw her body in the state where the body was sleeped and her body was sleeped, and she was trying to get off the victim's her part, which he was living on the floor and inserting his sexual organ into the victim's her part. Although the victim repeatedly expressed her refusal to do so, she tried to get out of the front her part, she made a consistent and concrete statement to the effect that "the defendant added the her part to the upper part and inserted her sexual organ."

2) On the day when the instant crime was committed, the victim did not wish to cause harm to others, but did not report the mind that he want to deny the reality. However, on May 16, 2017, the next day, the victim told her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her with the higher employee of the 'E her her her her her her her her her her her her her her

3) According to the Defendant’s statement, the Defendant made a statement that “I need not do so from the victim prior to inserting him,” and that I would like to deny sexual intercourse. This is consistent with the victim’s statement that the victim said that I would like to refuse and refuse to do so from the victim.”

Although the victim made a statement that he did not refuse to do so to the extent that he does not want to hear in the surrounding area, H made a statement that he did not want to do so. However, it is clear that the victim made a statement to the effect that he does not want to do so to the defendant, and the victim did not request the rescue in the form of sexual assault to others at the time of committing the crime of this case, and the refusal to do so did not request the rescue in the form of a large voice. Therefore, H’s statement cannot be viewed as contradictory to the victim’s statement.

4) The Defendant and the victim worked together for one month and did not know of contact details, and the victim was aware of the fact that there was a woman-friendly Gu against the Defendant even before committing the instant crime, and thus the victim did not seem to have a special sense about the Defendant. The victim’s physical perception without any size distance was committed at a place where other employees are located, and there was no other words and actions that the victim wants to have a sexual intercourse with the Defendant at the time of committing the instant crime.

5) The victim and the Defendant stated that the victim took a large amount of alcohol to the extent that the victim was unable to hold body (11th page of the witness examination record of the witness H), and J also stated that the victim was able to cover the body of the victim with the Southern bank that he left off by his J under the influence of alcohol (8th page of the witness examination record of the witness J). The instant crime was committed from around 04:0 of May 15, 2017 to about 1 hour, when the victim fright alcohol or frighted, the victim was punished for 2 hours from around 04:0 on the CCTV of the instant building. According to the video taken from the CCTV of the instant building, the victim was unable to see the victim’s ability to fright or fright about 06:50-7:18, after the instant crime was committed, so that it is difficult to see the victim’s body to fright and fright the body of the police.

Although the victim made a statement that he was under the influence of alcohol to the extent that he was unable to satise his body in the initial police, and later made statement that he did not take the part of his body in the investigative agency and this court, this cannot be said to have changed the statement in a manner that denies the state of alcohol itself, even though it was difficult for the victim to satise his body, which emphasizes the victim's memory of the state of damage after the locking.

6) The victim committed the instant crime, followed up to 30 minutes of conversation between the Defendant and the parking lot, and the Defendant took a fluence of smoking, and the Defendant took an action to remove the face of the cosmetics with the same objects as the hand-on of the cosmetics (No. 1), and served as a usual, and participated in the meeting of the employees after approximately one week. However, this can be deemed as follows: (a) the victim’s fluence immediately after having experienced sexual assault; (b) relationship with the workplace rent; and (c) fear of reporting sexual assaults to the surrounding areas; and (d) the circumstances after such crime cannot be said to be circumstances to reject the credibility of the victim’s statement.

It seems that the victim made a statement that "no fact has been made cremation in the parking lot" at this court and the prosecution, and the contents of the victim's statement are not consistent with the written appraisal (Evidence No. 1). However, even under the above written appraisal, the victim did not make a cremation like Mana. This is because the victim may take natural or damp measures after being able to take care of his face while drinking at the same time from the beginning of the day before the day, and it is merely a critical circumstance related to the progress after the crime.

7) As to the circumstances leading up to the sexual intercourse with the victim, the defendant made a statement that "the victim was able to see the victim's fright while she was faced with the victim's chest while she was faced with the victim's her finger by leaving the eye, making the victim her her fright and her her fright with the victim's her fright," and that the victim consented to the sexual relationship several times with the defendant, "the victim was d', "the victim was fright', "the victim was fright", "the victim was fright", "the victim was her fright," and "the victim was frightd" and "the victim was frighted when the victim was frighted to the victim again before she was inserted."

However, in light of the following circumstances, the above statement by the Defendant cannot be trusted. ① According to the Defendant’s police statement, the Defendant heard the speech that the Defendant would not leave from the victim and asked questions as to whether the victim consented to the sexual intercourse, even though it was doubtful circumstances, the Defendant did not go through the victim’s mind to have sexual intercourse (Evidence Nos. 91, 92) and did not request the victim to report the victim’s sexual intercourse on his own (Evidence Nos. 94).

② From the perspective of the statement of the Defendant, the victim was able to take a closed panel and take part in the same place on the side surface of the closed-end seat in which the victim was locked by the victim, leaving the closed panel, and leaving the victim on the board. In addition, the victim was only maintaining the first condition where the victim was unable to take part in the defendant, etc. during the victim’s body and inserting down his/her lower body, and she was able to see that the victim was able to take part in the same place without any special words other than “N”. Moreover, it is difficult to understand that the victim was able to take part in the same place without any specific words other than “N” as a matter of common sense.

③ 피해자는 피고인에게 직장 동료로서 친밀함을 넘어서 성관계를 허용하는 언동을 보인 바가 없고, 이 사건 범행 당시에는 피해자는 성기를 삽입하려는 피고인에게 하지 말라는 거부의 의사를 표시하였으며, 피고인의 검찰 진술과 증인 H의 법정진술에 의하면 피해자는 성관계가 끝난 뒤 옷을 입고 소파에 앉아 '엉엉' 소리 내어 울기도 하였다.(증거기록 164, 165쪽, 증인 H에 대한 증인신문 녹취서 13쪽), 이는 피고인에게 여자친구가 있는 사실까지 알면서 성관계에 적극적으로 동의한 사람의 행동이라 보기에는 지나치게 이례적이어서 납득하기 어렵다.

Even if the victim was under the influence of alcohol and temporarily diving, it is difficult to view that the victim consented to the sex relationship with the Defendant, in light of the aforementioned various circumstances, even if it is acknowledged that the Defendant was under the minor physical contact.

1. Reasons for sentencing: Imprisonment with prison labor for a year and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Criteria for Sex Offenses and the Nos. 1 (General Rape) (Special Rape)

[Recommendation and Scope of Recommendation] Imprisonment of 2 years and 6 months to 5 years (Basic Area)

3. Determination of sentence: The crime of this case committed by the Defendant for a period of two years and six months is deemed to have been committed by the Defendant, while under the influence of alcohol, disregarded the victim’s explicit refusal by taking advantage of the victim’s potential and, thus, sexual intercourse with the victim. The victim is mentally and mentally shocked by the instant crime and wanting to punish the Defendant. Nevertheless, the Defendant did not have any effort to compensate for damage and not reflect his own criminal act. This is the unfavorable condition to the Defendant.

However, the Defendant itself is against the sexual intercourse with the victim, and there is no record of criminal punishment prior to the crime of this case. This is a favorable condition to the Defendant.

In addition, comprehensively taking into account the defendant's age, character and conduct, family relationship, motive and background of the crime of this case, circumstances after the crime, etc., various sentencing conditions under Article 51 of the Criminal Act shall be determined as ordered.

Where a conviction becomes final and conclusive on a criminal fact in the judgment that is a sex offense subject to the registration of personal information, the defendant constitutes 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

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins