2016Gohap1382 Rape

A

Gamba (prosecutions) and Kim Jung-il (public trial)

Law Firm B

Attorney C, D

July 20, 2017

The defendant shall be innocent.

1. Summary of the facts charged in this case

The defendant is the chairperson of E (the week), and the victim F (the age of 24) is an employee in charge of the foregoing corporate accounting affairs.

Defendant, while having frightenened a victim, had frightenced him, had sexual intercoursed with the victim;

Around July 15, 2016, there is a work to be handled by the Jinju", which had induced the victim in advance and had the victim impliedly in the guest room 304 of the Jinju-si, which was scheduled in advance, and the victim who cannot refuse the defendant's instruction or request was "to grow down on the floor" and eventually, the above guest room was locked with the victim in the above room.

Around 00:00 on July 16, 2016, the Defendant was placed in the floor of the above guest room. On the other hand, the Defendant was able to have sexual intercourse once by putting the body of the victim who was accumulated in the Gap's beds, divided the body of the victim by the body of the Defendant, suppressions the victim's resistance, cutting off the victim's panty and panty, and inserting the Defendant's sexual organ into the part of the victim's sound.

At around 06:00 on the same day, the Defendant continued to engage in sexual intercourse with the victim's sexual organ inserted into the victim's sound book by reconcepting the victim's body, which had not gone out of the guest room due to the shock of the above rape, and reconcing the victim's body with the victim's body, suppressing the resistance, and inserting the Defendant's sexual organ into the victim's sound book.

Accordingly, the defendant raped the victim by assault over twice.

Defendant and his defense counsel’s assertion

On the date stated in the facts charged in the judgment, the defendant did not commit rape by exercising assault to the extent that it is impossible or considerably difficult for the victim to resist, as stated in the facts charged, at the guest room of the above "H" (hereinafter referred to as "the hotel of this case") with the victim, on condition of economic assistance.

3. Determination

A. Relevant legal principles

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’s resistance should be determined by comprehensively taking into account not only the content and degree of such assault and intimidation, but also the circumstances such as the developments leading up to exercising force, the relationship with the victim, and the circumstances at the time of sexual intercourse and the subsequent circumstances (see, e.g., Supreme Court Decision 2001Do4462, Oct. 30, 201).

B. Determination

1) The Defendant consistently denies the crime by consistently asserting that there was a sexual intercourse between investigative agency and investigative agency on two occasions under the agreement with the victim, and that there was no sexual intercourse against the victim by assaulting the victim against the victim’s will, etc., and thus, the victim’s statement as direct evidence to acknowledge the facts charged of the instant case is insufficient to acknowledge the facts charged even if all of the remaining evidences are combined.

2) However, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, it is difficult to recognize the reasonableness and credibility of the victim’s statement to the effect that the victim clearly expressed his/her intent to refuse sexual intercourse but the defendant led to sexual intercourse twice through the suppression of the victim’s resistance and twice. Even if the victim’s statement partially accepted the victim’s statement and recognized that the victim exercised certain tangible power, such as taking the victim’s body as stated in the facts charged, it is difficult to deem that there was proof to the extent that there was no reasonable doubt as to the fact that the exercise of such force was impossible or considerably difficult to resist the victim’s resistance, and there was no other evidence to acknowledge it.

A) In light of various circumstances, including the background leading up to the arrival of the Defendant and the victim to the hotel in which the instant case occurred on the day immediately before the instant crime was committed, the circumstances leading up to the arrival of the hotel in one room, the contents of conversation between the Defendant and the victim, and the victim’s attitude before reaching the sex act, etc., the victim, regardless of his duties, was able to shot up to the guest room as well as the Defendant, as a shot-ro located far away from Seoul, by his own solicitation from the Defendant, and was not subject to any threat or suppression by the Defendant during that process.

① As to the developments leading up to the Defendant’s getting off the victim’s truth, the Defendant stated that “the Defendant came to death with the victim on the condition that the victim would give economic support to the victim,” and that “the victim was playing on the initiative of the Defendant,” and that “the victim had a duty to deal with the victim on July 11, 2016, on the spot in which the Defendant was on the agenda that he was on July 15, 2016.”

However, the victim's company E is also a company that operates trade business, while the victim's main business was related to trade business, the defendant was engaged in real estate business in the Jinju, and it does not seem that the victim had any specific business to deal with the real estate business.

In addition, the victim's right to issue a bus ticket, which is called Jinju around 14:56 on July 15, 2016, seems to have arrived at Jinju at more than 19:45 on board the bus for Jinju, and more than 19:0 on the bus. However, if the victim wanted to carry out his duties according to the victim's statement, it is very rare that it would be between a gold-day, not a business hour, and a gold-way, not a business hour.

② The victim stated that the victim she was flicking from the J on the vehicle between the Defendant and the Defendant who was flicking out of the J on the vehicle of the Defendant, and that he was flicking to the instant hotel after completing meals at around 21:46, and then divided the conversation with the Defendant and the Defendant, and that the Defendant would have an economic help while indicating the interest of the victim. As such, the victim’s statement that she went to the next week of business even in light of the fact that the Defendant and the Defendant were flicking after her arrival at the Jinju, or that there was no time when she consumed for business other than sending time after her arrival at the Jinju, is not persuasive.

The victim made a statement that he would ask the defendant about his return to Seoul while doing so. The victim made a statement that "I would like to ask the defendant about what he had to do. So I would like to do so. So I would like to do so. So I would like to see that I would like to see that I would like to see that I would like to see. So I would like to see that I would like to see. So I would like to see that I would like to see?" and I would like to make a statement that "I would like to see my correct objection." This is not only the victim's statement in this court but it is difficult to believe this part of the statement because the victim's statement itself is not consistent.

③ 피해자는 피고인과 이 사건 호텔 객실에 함께 투숙하게 된 경위에 관하여, 경찰 조사 당시에는 '피고인이 이 사건 호텔 객실에 들어와 직원에게 이불, 수건, 물을 더 달라고 하였는데 이불을 왜 더 달라고 하는지 이해가 안 돼서 물어보았더니 피고인이 바닥에서 자겠다는 취지로 말하였고, 한 방을 쓰게 된 것에 대하여 솔직히 피해자가 피고인의 딸 뻘이고 평소에도 딸처럼 생각한다는 말들을 해왔기 때문에 믿었다'는 취지로 진술하였다(수사기록 제28쪽). 그런데 검찰 및 이 법정에 이르러서는 '피고인에게 싫다고 하며 수차례 가라고 하였으나 피고인이 가지 않아 결국 피해자가 포기하였다'는 취지로 진술하여 피고인이 동숙하는 것에 대하여 거부의 의사표시를 한 것으로 종전 진술을 번복하였는바(수사기록 제290쪽), 그 진술에 일관성이 없다.

In addition, in this court, the witness K made a statement to the effect that "the defendant and the victim drinked the case from the victim by going through a business trip with the victim, and the victim was in the room of the mixed person, but the defendant was opened to open the hotel room of the victim while the defendant was drinking out, and was covered by the victim's opening." The witness statement is different from the victim's statement about the circumstances he was familiar with the defendant. K appears to be a person who first notified the victim of the damage and first discussed the victim as to the situation to be dealt with, and K appears to be a person who had a significant trust of the victim, and K seems to have no reason to make a statement different from the victim's content.

④ Meanwhile, at the time of the police investigation, the victim made a statement that the defendant was in the state of clothes after leaving the toilet (as for the investigation record No. 28), while the prosecutorial investigation made a statement to the effect that the defendant was spanty spanty spanty spanty spanty spanty spanty spanty spanty spanty spanch and again the defendant was spanched by the victim (as for the investigation record No. 290). And in this court, the victim made a statement to the effect that the defendant was spanty spanty spanty spanty spanty spanty spanch and then the victim was sher

⑤ On July 11, 2016, when the victim makes a statement at the prosecutor’s office, the victim made a statement to the effect that, at the time of the meeting, when the victim was about July 1, 2016, the victim made a statement to the effect that the victim would have been in mind the victim’s mind, but the victim also made a statement to the effect that he would frequently leave the Chinese business trip, but the victim's ‘business and male-friendly women' was against the victim'. The victim stated that if the defendant did not adjust the male-child system within one month, he would use the list (as of the investigation record No. 284), he made the statement to the effect that the victim would use the list (as of the above investigation record, No. 288). In addition, the victim made a statement to the effect that the defendant refused the victim's economic help? In light of why the defendant made it difficult to say that he would have been in mind with the victim's mind, it is difficult to see that the victim made the above statement to the victim?

(6) Prior to the instant case, the victim obtained a corporate card from the Defendant in the name of L Company, and used the victim’s driver’s license fees, film viewing expenses, meal expenses, and book purchase payment, etc.

B) The time and circumstances after the instant crime was committed

① At the time of the investigation by the police, the victim expressed his/her intention of refusal to refuse to do so at the time of the first sexual relationship in this court, and at the time of the second sexual relationship, the victim stated that he/she did not express his/her intention of refusal at any time in the second sexual relationship. However, at the time of the investigation by the prosecution, the victim expressed his/her intention of refusal in both the first and second sexual relationship. On the other hand, the Defendant consistently asserts that there was no refusal by the victim when the victim has a first and second sexual relationship.

If the defendant had sexual intercourse against the victim's will even though the victim clearly expressed his/her intention of refusal at the time of the first sex relationship as alleged by the victim, it is difficult to understand that the defendant's leaving the guest room in the situation where the victim was unable to request sufficient rescue after the time of leaving the hotel room of this case. Rather, this seems to correspond to the defendant's assertion.

Meanwhile, as to whether the victim expressed his/her intent of refusal when the victim had a secondary sexual relationship, it is difficult to believe that the statement was not consistent. In that case, if the victim did not express his/her intention of refusal at all, the victim could have known it even if the victim had an intention of refusal. Furthermore, even if the victim expressed his/her intention of refusal to a certain extent in the primary sexual relationship, it cannot be ruled out that the victim did not express his/her intent of refusal after the primary sexual relationship in light of the victim’s attitude after the primary sexual relationship.

② 피해자는 이 사건 범행 당시 피고인이 행사한 유형력의 정도와 그 내용에 관하여, 경찰 조사 당시 '화장실 쪽을 쳐다보고 누워 있는 피해자의 등 뒤로 피고인이 다가와 좌측 어깨를 눌러 똑바로 눕게 한 후 피해자의 위로 올라와 양 손으로 양 손목을 잡고 다리로 허벅지와 종아리를 눌렀다. 키스를 하면서 브래지어 속으로 손을 집어 넣어 가슴을 만지다가 피해자의 브래지어와 상의를 모두 벗겼다. 양쪽 가슴을 번갈아 빤 후 그대로 내려가며 핥았다. 가슴을 빨면서 바지를 벗겼고 성기도 빨았고, 손가락을 성기 안에 넣어 확인한 후 바로 성기를 삽입했고 피고인의 정액이 나와서 멈추었다(수사기록 제29쪽)', '두 번째 성관계에도 똑같은 방법으로 하였다(수사기록 제30쪽)'고 구체적으로 진술하였다. 그리고 검찰 조사에서는 '피고인이 피해자의 팔, 다리를 잡고 몸으로 누르고 하여 힘으로 저항하기 힘들었다. (1차 성관계 이후) 침대에 누워서 잠이 들지 않은 상태로 있었는데 피고인이 다시 올라와서 처음 한 것처럼 힘으로 나를 누르고 강제로 성관계를 하였다(수사기록 제291 내지 293쪽)'는 취지로 진술하였고, 이 법정에 이르러서는 '몸을 움직일 수 없는 상태에서 강제로 키스를 당했다. 피고인이 한 손으로 피해자의 양손을 잡고 나머지 한 손으로 옷을 벗겼고, 밑으로 내려가서 피해자의 성기를 입으로 접촉할 때에는 허벅지를 잡아 반항을 억압하였다'고 진술하였다.

However, it is difficult to see that the Defendant’s act of suppressing the victim’s resistance with the victim’s hand or hand, as stated in the victim’s statement, and at the same time, it is difficult to in itself conduct the above act with respect to the victim’s sexual intercourse with the victim’s hand or hand. As seen below, it is difficult to believe that the exercise of the force itself was to suppress the victim’s resistance as it is difficult to believe the victim’s statement.

③ The victim made a statement to the effect that he did not have exercised force other than that of the victim’s hand or knife in a sexual intercourse before, after, or after, the sexual intercourse with the Defendant, the victim made a statement to the effect that he did not have exercised force. However, in the absence of the aforementioned force, the victim was able to take knife the victim’s hand with knife with knife with knife, off the victim’s clothes, or contacted the victim’s sexual intercourse with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife with knife by knife of knife with knife.

In light of these circumstances, it is doubtful whether there is a victim's resistance against the act that the defendant, like the victim's statement, takes the victim's grandchildren or legs and classified the victim's body and attempted sexual intercourse.

④ Since the Defendant’s act of taking the victim’s body or carrying the victim’s hand or bridge is an act that may sufficiently be accompanied in the sexual relationship under agreement, there is sufficient possibility that the Defendant did not act as above in order to suppress the victim’s resistance.

⑤ Meanwhile, even if the victim’s physical strength had been exercised as alleged by the victim, it is difficult to view that there was a serious difference between the victim’s physical strength and physical strength as at the time of the instant case and the victim’s physical strength at the time of the instant case. The instant case occurred inside the hotel room. In light of the fact that, even if the victim had an opportunity to request assistance or rescue from another person on his own on the floor for about six hours before the victim came to have sexual intercourse with the victim once, the victim appears to have actively prevented the Defendant from resisting or requesting assistance from the hotel or attempting to escape from the hotel without any particular circumstance, it is difficult to readily conclude that the victim was in a situation where it is impossible or considerably difficult for the victim to resist.

6. The injured party stated that he/she carried a sculpture together with the accused, carried a poster, etc. related to his/her duties in the Defendant’s office, and laid down the Defendant’s vehicle to Seoul.

The above behavior of the victim is very unusual in view of the victim's behavior immediately after the crime.

4. Determination

Therefore, the facts charged in this case constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

1) The instant indictment is written as 'I hotel' but seems to be a clerical error in 'H hotel'.