2018Quasi-Rape62 Quasi-Rape

A

Maok-young (prosecution) and Kim Goods (public trial)

Law Firm Ruz

[Defendant-Appellee]

November 14, 2018

The defendant shall be innocent.

1. Summary of the facts charged

On July 16, 2017, the Defendant: (a) opened a victim’s accommodation visit at around 07:00 on the same day on which the victim would return to the room after drinking with Korean guests, including the victim C (n, 23 years of age); and (b) discovered that the victim was locked by having a pipe of the inside.

The defendant put the hand in the side of the victim, putting the victim's ship and chest into the victim's inside, and keep the victim's ship and chest into the victim's cryp, put the hand into the part of the victim's sound, put the hand into the victim's panty, and gather the finger.

Accordingly, the defendant tried to commit similar rape by taking advantage of the victim's state of impossibility to resist, but it was attempted because the victim was broken out in diving.

2. Defendant and his defense counsel’s assertion

The defendant did not enter the guest room of the victim on the day of the case and put the finger in the part of the victim.

3. Determination

A. Relevant legal principles

A criminal defendant shall be presumed innocent until a judgment of conviction becomes final and conclusive (Article 27(4) of the Constitution of the Republic of Korea, Article 275-2 of the Criminal Procedure Act), and the presumption of innocence is not only the stages of investigation, but also the long-term legal doctrine that leads to the overall criminal procedure and criminal trial until a judgment becomes final and conclusive, and is based on the interest of the defendant. Article 307(2) of the Criminal Procedure Act provides that “The recognition of facts must be based on proof to the extent that there is no reasonable doubt.” Therefore, the recognition of guilt in a criminal trial shall be based on evidence with probative value that leads to a judge’s conviction to the extent that there is no reasonable doubt that the facts charged are true. If such conviction does not reach the extent, the determination should be made with the interest of the defendant even if there is no doubt of guilt. In recognition of facts charged, where the statement of the victim or the statement of a person closely related to the victim is the sole basis of evidence, which is sufficient for the victim’s own testimony or conviction to the extent that it is reasonable and reasonable and reasonable.

B. Determination

1) Facts constituting the premise for determination

A) From July 13, 2017 to June 16, 2017, the Defendant, while traveling pro-dong D and Japan, stayed in E, B, E, thereby staying in the Republic of Korea. Meanwhile, the victim was staying in the Republic of Korea while traveling in the Republic of Korea from July 12, 2017 to July 18, 2017.

B) The Defendant and the victim’s string room were the structure attached to three different measures in the second floor among the instant string room1. Each guest room was the structure that was divided into a lower partitions than the ceiling room and was not completely cut off. Of the two, the victim and his friendly F left the room near the entrance at the entrance, and the Defendant’s conduct was the center located in the nearest guest room at the entrance.

C) On July 14, 2017, the Defendant dices 10 to 20 tourists, including the victim’s day-to- day-day and the day-to-day day-day day-to-day day-day day-to-day day-day day-the-day day-day day-the-day day-day day-day day-to-day day-day

D) From July 15, 2017, the Defendant and the victim met alcohol for more than 5 to 6 hours in each front space of the guest room from the self-determination on July 15, 2017. At the time, the victim’s friendly F was under the influence of alcohol and the victim’s f was under the influence of alcohol to the guest room.

E) Around 10:55 on July 16, 2017, the Defendant was expected to return to the Republic of Korea by aviation J on the air, and the said drinking place was sold, and the victim went through an implied room and divided a locked conversation. The victim returned to his own guest room, the Defendant’s friendly D was diving, and thereafter, the Defendant was faced with the Defendant’s friendly d, and the Defendant’s fright was cut off, and the Defendant’s fright was cut off.

2) Statement of the victim

With respect to the reason that the victim argued that he was guilty of the crime from the defendant, and that he was aware of the victim's sexual intercourse, the victim tried to flickly flickly flickly and flickly flickly flickly flickly flickly flick. As a result, the victim tried to flickly flickly flickly flickly flickly flickly flickly flickly flick flick.

3) Defendant’s lawsuit

The Defendant, as at the time of returning to Korea, did not seem to have committed a crime due to the excessive time to stop the crime, and there is no difference in the fact that the Defendant entered the victim’s guest room, and submitted a written application to prove his/her human nature, such as submitting a written application, prepared by a man who is a man of female-friendly group, etc., is denying the facts charged in the instant case.

4) Specific determination

The evidence submitted by the prosecutor to prove the facts charged of this case includes the victim's statement, victim's statement F, victim's relative F's statement, and G residing in the victim's side before the crime occurred. However, G and F's statement cannot be directly admitted as direct evidence because it cannot be viewed as direct evidence. Accordingly, direct evidence proving the facts charged of this case is only the victim's statement. The victim has consistently been accused of indecent act from the investigative agency to this court. In addition, the victim stated that he had consistently committed an indecent act from the defendant; the day or following day of this case; the crime of this case was committed by F and G; there were many Korean people who committed an indecent act from the defendant; and the victim stated that he used Korean language at the time, there is doubt that the crime of this case was not committed by the defendant.

However, considering the following circumstances revealed in the record, it is insufficient to readily conclude that the Defendant’s statement to the effect that the Defendant is a criminal is an offender and the Defendant entered the victim’s guest room as shown in the facts charged to the effect that he/she was injured by the victim, and there is no other evidence to prove otherwise.

A) The victim heard the voice of the criminal and stated that he was off the face of the defendant and considered the face of the defendant. However, the victim's face was unfolded at the time when she became out. ② The victim stated that she can confirm the face of the defendant by light entering the crepan between ceiling and partitions, but the victim's friendly f was the same as that of the victim's entrance in this court. The victim's friendly f did not see that the above light was unfolded. However, if the side f of the victim's face was flick, it can be seen that the victim's face was unfolded, but it was flick if the front flick flick flick flick, and that the victim's face did not appear to be sufficient to confirm whether the person appears due to the brightness of around the victim's face. The victim stated that the victim's face cannot be seen to have been flick in the appearance of the victim's oral statement.

In light of these circumstances, it is doubtful whether the victim could accurately see the face of the offender, as long as the victim could accurately see the face of the offender, and the victim could sufficiently disclose the inside of the cell room. In light of the victim's statement, it is doubtful whether the victim could sufficiently disclose the victim's face. The victim's face could be seen.

B) The victim stated that "When considering the particular face of the defendant's face, the victim stated that "at the time of considering the voice of the defendant, the victim's face was the most important point," it was the idea of "at the time of considering the voice of the defendant." On the other hand, the victim stated that "the reason why the voice of the defendant thought that he was the voice of the defendant was the voice of the defendant, it was because he was the situation where he knows that he was the person because he was extremely large (24,25 pages of the record of the examination of the witness in relation to C)." The victim appears to have heard the voice of the criminal, thought that he was the defendant, and confirmed that he was the defendant, and exceeded the inside.

① Even according to the statement of the victim, the victim only told the offender about the degree of mady. ② The victim’s friendly f stated that the victim’s f was in a state of early drinking because he was not in a state of less drinking (or less drinking). The victim also seems to have been under the influence of alcohol prior to the case. ③ The victim was in a state of under the influence of alcohol, ③ the victim was in a state of fladying and fladying after having the drinking place more than 5:0 hours from her own time to 5:0, and the victim was in a state of fladying, and ④ the victim was in a state of fladying, and the victim was in a state of fladying with the Defendant before the instant case and appears to have not exchanged the conversation in the front line. Considering the fact that the victim’s voice of a person similar to the Defendant was perceived as the Defendant and thus, the victim could not be ruled out as a criminal suspect under the circumstances that the Defendant was suspected or a criminal.

C) At the time of the first statement about the offender's appearance in the police, the victim made a statement that "at the time of the statement" (the defendant's identity) he was fatt and fat, and that he was fat at the time of the first statement about the offender's appearance (the 13th page of the investigation record), and on December 3, 2017, the defendant made a statement that he was fatt and fatt at the time of the examination, and the defendant made a statement that he was fatt at the time of the first statement, and that he was fatt at the time of the first statement, the victim made a statement that "at the time of the first statement, the low person was fatt with the consumer retail," and therefore, the victim made a statement that "at the time of making a statement at the prosecution on April 27, 2018, the victim made a statement that he was fattally fatt with the suspect's appearance at the time of interrogation."

(2) The victim consistently stated that the criminal was suffering from the rebuttals at the time, but the police made a statement to the effect that it is necessary to lock up or Belgium as ‘satis' by stating that it was satisfyed at the time of the first statement, although it was well known that it was about satisfy,' the police, and that it was against the pattern of satisfy, although it was not clear in this court, it later made a statement to the effect that satisfy or satt was in need of ‘satisfy', and that it was against the pattern of satisfy.

(3) The victim made a consistent statement on the matter in which the offender was suffering, and made a concrete statement when time flows. There is a doubt as to whether or not the victim reversed the existing statement in line with the defendant's statement that he thought to be the offender, or reversed the statement in accordance with the photograph taken from the strings of the preceding day of the case, depending on the photograph taken from the defendant's statement that he was the offender.

D) The police did not investigate as to whether the offender took the measure taken by the victim or sound that the victim left the Defendant’s string, while coming from the victim’s guest room.

The victim asked at the prosecution that "I cannot see or see that I will not see any soundproofing," "I will not see the question that I will be able to do so," "I will see that I will be able to do so, or that I will see that I will do so, even if I will see that I will do 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 she she she will be sound." This is not easy in light of the prior statement that the soundproofs

However, the victim stated that he was unable to make a statement in the investigative agency by putting up a 'for the first time' and putting up a wall in this court. I tried to close the defendant, not to see the issue but to see it. ‘(after committing a crime)', ‘I have prevented him to the maximum extent possible, and see the wall to see it.' In addition, there is doubt that it is not a new statement in addition to the above prosecutor's statement in order to reinforce the credibility of the prosecutor's statement.

E) The Defendant asserts that he was working on the Internet as a Handphone at around 07:00, and there was a problem as to whether the Defendant and the victim had been working on the Internet, and even at the time when the Defendant and the victim were examined, the Defendant’s defense counsel also made inquiries to the victim about the circumstances during which the time of the crime was specified. The victim did not make a statement at the investigative agency prior to the arrival of this court that used Handphones to hear singing, and did not at all make any statement about whether or not he had confirmed time through the screen of the device. However, the victim made a statement in this court that "I am on the phone" only after being asked about whether the measure and time of the crime immediately after this court confirmed, and ‘I see that I see that there was no important time for the victim to see whether I see this case', ‘I am or see that I see that I would have been able to see that I would have “I see the time of the victim'.

바) 피해자는 피고인을 범행 일시로부터 3개월이 지나 고소하게 된 경위에 관하여 경찰 및 검찰 수사단계에서 '고소하기 얼마 전 피고인의 K을 보던 중 일본 후쿠오카 여행이 너무 재미있었다는 내용의 글을 게시하고, 재밌었다는 댓글을 남긴 것을 보고 범행을 반성하지 않는 것 같아 화가 나 고소를 하게 되었다'고 진술하였다. 그런데 피해자는 검찰에서 '피고인 K 게시물을 보면 피해자가 캡처하기 16주 전인 2017. 7. 13. ~ 16.경 여행 중 게시한 것으로 보이고, '진짜 재미있었다'라는 취지의 댓글도 16주 전에 작성된 것으로 보이는데 어떤가요'라는 질문에 '그전에는 앞에 게시물만 보다가 고소하기 직전에 댓글까지 확인한 것입니다'라고 대답하였다. 그런데 피해자는 이 법정에서는 '직접적인 추행을 당한 것이 태어나서 처음이어서 신고할 수 있다고 생각 못 했다. 2주일 후 지하철에서 몰카 범행을 당했는데 그 자리에서 (범인을) 잡아 바로 넘어가고 빠르게 진행되는 것을 보고 '이게 어려운 게 아니구나' 그렇게 생각하여 피고인의 K에서 이름 등을 발견하여 신고하게 되었다'라고 고소 경위에 대하여 이전 진술들과 다르게 진술하였는바, 이 역시 시간이 흐를수록 진술이 더 구체적으로 바뀌거나 수사단계에서의 진술을 고려하여 진술이 번복된 것으로 보이고, 피해자가 사회경험이 적은 나이임.을 감안하더라도 그 고소 경위가 자연스러워 보이지는 않는다.

G) Even when considering the fact that the instant list was a list in Japan, the said list appears to have reached many Korean visitors, and its employees appears to have reached a simple level of Korean language. Even based on the victim’s statement, it is difficult to readily conclude that the Defendant was the Defendant on the ground that the Defendant used the Korean language as the Defendant, on the ground that the victim’s statement was not a few horses.

4. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of crime, it is decided as per Disposition to sentence innocence under the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

1) The instant Austria is on the 11,12th floor of the H building in the Hasasi in the Hasasi in Japan.

2) The injured party at the prosecution (the injured party, even if she puts his/her finger in a negative part, she shall be asked for the reasons why she was her fingered).

It is called "I think I think I would like to do so," and the quality of "I think that I will see that I will do so."

In the text, it is true that the male who was off the inside, and at the time, was the defendant's guidance." (in the investigation record, 150 pages).

3) The victim made a statement that he/she would drink alcohol to the degree that he/she would feel that the victim would drink on the day of the instant case (the nine pages of the record of the examination of the witness in C).

4) On December 3, 2017, the suspect interrogation protocol of the defendant as of December 3, 2017 stated that the victim was suffering from 'compact'.

Although the defendant did not have been able to say that he suffered half fluort in the past flusium flusium, the defendant suffered half flusium.

Then, the statement was made as 'Written'.