(영문) 서울고등법원 2018.1.30. 선고 2016노1574 판결

Of the acquittal portion of the lower judgment, the prosecutor’s appeal against the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.) on August 28, 2014 is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) The credibility of the victim’s statement

Of the facts charged in the instant case, insofar as it is impossible to believe the victim’s statement on August 28, 2014 concerning the crime portion, the victim’s statement as to the remaining facts charged is also not reliable. Therefore, the lower judgment convicting the victim on the basis of the victim’s statement that is not reliable was erroneous.

B) On April 2014, violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.)

(1) The lower court found the Defendant guilty of this part of the facts charged as evidence, even though there is no objective evidence that the Defendant had taken and kept a sexually related video or abshographic photo of the victim, the lower court found the Defendant guilty of this part of the facts charged.

(2) Before initializing the cell phone on August 28, 2014, the Defendant left the cell phone in a computer. As such, as determined by the lower court, if the Defendant’s cell phone photographs were to have the victim’s body pictures, etc., the victim’s body pictures, etc. should be discovered from the white file of the computer hard disc. However, the victim’s body pictures, etc. were not discovered from the victim’s computer hard disc.

(3) The pictures referred to in W message or telephone conversations between the Defendant and the victim are pictures that the victim weared only as soon as the victim is a kind of clothes. The lower court erred by misapprehending the victim’s body as pictures taken by the Defendant.

C) As to each intimidation

Although there are evidence and circumstances contrary to this part of the facts charged, the judgment of the court below which found the defendant guilty is erroneous in misconception of facts and misapprehension of legal principles.

(1) Regarding the point of intimidation around 00:00 on May 19, 2014, when examining the content of W message received and sent by the Defendant and the victim, the Defendant was aware that there was no victim between the new wall on May 18, 2014 and May 19, 2014, and that the Defendant did not take the victim into account.

(2) With regard to the point of intimidation on May 20, 2014 and June 2, 2014, the record that the court below listed as evidence of intimidation does not include a statement to the effect that the defendant would pose a threat to the victim, and the record refers to that the defendant does not have any way over several times at the end of asking the victim of the video.

(3) With regard to the fact of intimidation on May 21, 2014, when examining the content of the W message sent and received by the Defendant and the victim, the Defendant and the victim appear to be different from each other even after the time when the Defendant threatened the victim, and it is difficult to understand that the Defendant intended to use his real name in the criminal act.

(4) With respect to the point of intimidation on June 3, 2014, the victim from May 30, 2014 to the same year

6. 6. The Defendant’s sending a message that greatly leads to the Defendant, etc. without the victim’s phone, shows that the Defendant was completely not leading the Defendant.

D) As to each assault

(1) Regarding the point of assault around 05:00 on June 4, 2014, the victim submitted as evidence of assault a photograph of the victim’s arms sold on June 4, 2014 or June 5, 2014, and the Defendant’s photograph of the victim’s arms stamped around 07:00 on June 4, 2014, the victim’s arms are not sold. Therefore, it cannot be readily concluded that the Defendant’s hole was due to the Defendant’s assault. In addition, the victim stated that the Defendant was accompanied by the Defendant from the night on June 3, 2014 to 05:00 on June 4, 2014, but when the Defendant sent the text message to the victim, it can be known that the Defendant did not have been the victim at the time of sending it to the victim.

(2) With regard to the fact of assault around 23:00 on July 5, 2014, the Defendant and the victim showed the appearance of the Defendant and the victim, and they do not ask the victim’s face or the victim.

(3) Regarding the point of assault around 03:00 on July 13, 2014, the Defendant and the victim met with the victim on July 13, 2014, and the victim met with the victim on July 13, 2014, and the victim met with the victim on July 13, 2014.

(4) With respect to the charge of assault on August 7, 2014, the Defendant, instead of taking the F-related statement, she saw the victim to be present at the police station and to have a witness make a statement, without a big dispute.

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (ten months of imprisonment, two years of suspended execution) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts (not guilty portion of the original judgment)

The statements of the victim, which correspond to the facts charged in the verdict of not guilty, are very specific and consistent, and there is no motive or circumstance that the victim makes a false report.

Some of the circumstances that seem to be inconsistent with the victim's statement cannot be impeachmentd on the credibility of the victim's statement.

Therefore, according to the victim's statement, medical records, field photographs, etc., this part of the facts charged is recognized to be fully convicted, and contrary to this, the court below acquitted the victim of this part of the facts charged, on the ground that it is difficult to believe the

2) Unreasonable sentencing

The sentence imposed by the court below against the defendant is too uneasible and unfair.

2. Determination

A. Ex officio determination

The prosecutor applied for the amendment of a bill of amendment to the facts charged on April 2014, 201 and on June 4, 2014, as stated in the crime committed by the second sentence. This court permitted the amendment and changed the subject of the judgment. As shown in the judgment of the court below, the part of the judgment of the court below which found the guilty guilty and the part of the injury and rape found guilty as shown in the second sentence of Article 37 of the Criminal Act can no longer be maintained. Thus, the part of the judgment of the court below which found the guilty guilty and the part of the acquittal of the injury and rape was determined to be one punishment in the concurrent crimes under the former part of Article 37 of the Criminal Act.

However, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles and the prosecutor's assertion of misunderstanding of facts is still subject to the judgment of this court, which will be examined below.

B. As to the Defendant’s assertion of mistake and misapprehension of legal principles

1) The credibility of the victim’s statement

As seen below, the victim's statement on the facts charged on August 28, 2014 can be trusted, as seen in Article 2-3(c) above, so the defendant's assertion on this part on the premise that the victim's statement on the facts charged cannot be trusted is without merit.

2) On April 2014, violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras, etc.)

The defendant asserts that this part of the judgment of the court below is identical to the assertion, and the court below rejected the above argument by stating in detail the decision of the court below at 7-10 pages of the judgment. In light of the circumstances stated by the court below, the court below's aforementioned decision is just, and the defendant's allegation in this part is without merit.

3) As to each intimidation

The defendant asserts that this part of the judgment of the court below is identical to the assertion, and the court below rejected the above argument in detail on the 10 to 111th of the judgment. In addition to the following circumstances acknowledged by the evidence duly admitted and investigated by the court below and the court below, the above judgment of the court below is just, and the defendant's allegation in this part is without merit.

A) From May 18, 2014 to May 19, 2014, the Defendant asserted that there was no victim from the new wall between the Defendant and the victim. However, when examining the content of the W message between the Defendant and the victim, the Defendant proposed to have the victim drinked with the victim on May 18, 2014, and the Defendant and the victim appear to have claimed the victim on the same day. 1) This is consistent with the statement of the victim that the Defendant had expressed his cell phone without any speech to the effect that the Defendant was aware of the problem with other women and the victim did not receive it.

B) At the time of the instant case, the Defendant and the victim were deemed to have made efforts to continue to maintain the relationship with one another while disputing the Defendant’s female problem. As such, it is difficult to dismiss the credibility of the victim’s statement solely on the ground that there was a shotle in the process of threatening the Defendant at the time when the Defendant was threatened, or there was a shotle between the Defendant and the victim.

C) The Defendant merely threatened the victim by a speech or behavior such as spreading a video recording a sexual intercourse with the victim by using his/her real name in a domain account where his/her name was registered, and did not perform the act of transmitting the actual mail, and thus, it is not impossible for the Defendant to specifically understand his/her real name mail in threatening the victim.

4) As to each assault

The defendant argued to the effect that this part of the appeal is alleged in the court below, and the court below rejected the above argument in detail on the 11th to 12th of the judgment. In addition to the following circumstances acknowledged by the evidence duly admitted and investigated by the court below and the court below, the above judgment of the court below is just, and the defendant's allegation in this part is without merit.

A) As to the assault around 05:00 on June 4, 2014

(1) In light of the foregoing, the Defendant’s motion picture 2, taken around 07:00 on June 6, 2014, the Defendant’s motion picture 2, 2014. 4. 07:0, the Defendant’s motion picture 2, on the part of the victim, stated that “the Defendant would have to leave one evidence as it is.” The Defendant’s motion that “I will have to write down the tear part of the original spher, which the victim suffered.” This conforms with the victim’s statement that the Defendant abused the victim, and thus, the Defendant’s motion spher

(2) On June 4, 2014, in light of the fact that the Defendant sent a victim’s cell phone call from the victim’s cell phone to the Defendant’s cell phone on June 4, 2014, the Defendant asserts that there was no fact that the victim was a victim on June 4, 2014. However, on June 4, 2014, the victim was under the victim’s home before the Defendant and the victim’s home at the prosecutor’s office and returned to the Defendant. While the Defendant continued to stay before the victim’s home, the Defendant got out of the phone and again got out of the Defendant, and again took out another violence, and 4) at the trial, the Defendant and the Defendant sent out the message at home around 04:0, June 4, 2014, and then sent the message to the Defendant and the Defendant’s cell phone, and then, the victim could not be seen as having been under the victim’s phone and the Defendant’s cell phone and sent it out to the Defendant.

(3) On June 4, 2014, the Defendant asserts that, in light of the victim’s credit card settlement (payment related to taxi use around 05:54 a day) that was transmitted to the victim’s mobile phone at around 06:31, the Defendant did not bring about the victim’s mobile phone, and that the message was sent to the victim to inform the victim of his/her free will. However, the victim did not know his/her home, and the victim did not know his/her home, and the victim sent his/her text message to the Defendant at around 07:00 on the day, if the victim was sent the Defendant at around 07:0, the victim was sent the text message to the Defendant. In light of the fact that there is no reason to send the said message while leaving the victim sent the message of simple settlement, it is difficult to view that the Defendant again sent the text message to the victim’s mobile phone to the effect that he/she was sent to the victim with his/her own mobile phone at the time that the victim was sent to the victim.

B) As to the assault on July 13, 2014 03:00

In light of the contents of the W message between the Defendant and the victim at the time of the instant case, the Defendant and the victim met only one hour prior to the new wall, and the victim went to Qu Station “R” club. The victim, at around 03:00 the new wall 03:2, 190, 200, 200, 200, 200, 200, 300, 300,000, 300,000, 300,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,

C. Regarding the prosecutor's assertion of mistake

1) Summary of the facts charged

At around 03:30 on August 28, 2014, the Defendant: (a) at the home of the victim E of the Jongno-gu Seoul International OOdong OOdong, the Defendant confirmed the victim’s cell phone contents by misunderstanding that the victim had met another male; and (b) asked the victim’s criminal conduct; (c) on the ground that the victim, who was suffering from another female phone with the Defendant’s cell phone, refused the Defendant’s request while the victim was suffering from another female phone with the Defendant’s female relationship, and did not get off the victim’s cell phone code.

After that, the Defendant: (a) called “the victim who is frighter to evidence”; (b) laid the cell phone device above the table booming on the body of the victim; (c) laid the victim’s body; (d) cut off the victim’s body; and (e) took off the victim’s body; and (e) took the victim’s body fright up the victim’s body; and (e) took the victim’s hair back to the victim’s body; and (e) forced the victim’s hair to take over the victim’s body blish; and (e) forced the victim’s hair to take over the victim’s body blish; and (e) forced the victim’s hair to take over the victim’s body blish. The Defendant continued to check the victim’s face to the blish; and (e) led the victim to sexual intercourse with the victim’s chest rapidly and at least once.

As a result, when the victim's face is taken one-time by drinking, the defendant took a video image of the victim's body against the victim's will, which may cause sexual humiliation by having the victim engage in sexual intercourse once, and might cause sexual humiliation by using the camera function.

2) The judgment of the court below

In full view of the following circumstances, the lower court acquitted the Defendant of this part of the facts charged on the ground that the Defendant was unable to believe the victim’s statement that corresponds to this part of the facts charged, and the other evidence submitted by the Prosecutor alone is insufficient to recognize it, and that there is no other evidence to acknowledge it.

A) On the day of the instant case, the Defendant’s stacks and the part of the victim’s residential CCTV, which were revealed in the victim’s CCTV images, did not confirm the bloodtains, such as the victim’s statement, and the victim viewed the victim’s face cleanly from the Defendant “the victim was frighted once a week from the Defendant, and the victim was sucked with his own scam and the floor by leaving the scam, so as to go too much of the scams. On the part of the room, the Defendant was scamed up and was scamed on the part of the Defendant’s body. The Defendant scamed with the scam which he was raped. The Defendant scambling the scam that she was frighted and scamd into the Defendant’s scam, and the Defendant was found to have been scam off by leaving the Defendant’s s part.”

According to the CCTV images of the victim’s residence on the day of the instant case, the Defendant visited the victim’s house at around 00:45 on August 28, 2014, after having fluenched in white air and visited the victim’s house on the same day. On the same day, around 04:21 on the same day, it is confirmed that the Defendant landed the elevator and moves out of the victim’s apartment. However, according to the above CCTV images, it appears that the blood trace, such as the victim’s statement, was not confirmed at the victim’s convenience or the victim’s apartment after leaving the victim’s house, and it appears clean.

나) 성기 삽입 여부에 대한 피해자의 진술이 일관되지 않음 피해자는 경찰 제2회 조사 당시에 '피고인의 성기를 피해자의 성기에 대고 삽입하려는 시늉은 했으나 삽입은 하지 않았다'고 진술하였고, 스스로 작성하여 2014. 11. 11.경 제출한 진술서에도 피고인이 자신을 강간하려 했으나 결국 강간은 하지 못하고 밖으로 나갔다고 기재하였다. 경찰 제3회 대질 조사 당시에도 "삽입은 하지 않았습니다"라고 진술하고, "피의자가 왜 삽입을 하지 않은 것 같나요"라는 경찰의 질문에 "모르겠어요, 좋게 생각하면 제가 너무 우니깐 안한 것 같고요, 동영상을 찍었으니 됐다고 생각한 것 같아요"라고 진술하였다. 그러나 피해자는 검찰 제1회 대질 신문 시 '아주 잠깐 삽입이 있었던 것 같다'는 취지로 진술한 이래 이 법정에 이르기까지 피고인의 성기가 삽입되었다고 말하였다. 피고인의 성기가 삽입되었는지 여부는 강간 범행의 핵심적인 부분임에도, 피해자의 이 부분 진술이 일관되지 않는다.

On the other hand, the victim made a statement about this part at the time of the first police investigation, but the victim did not want to keep records about rape and requested to delete this part from the protocol. However, police officers V who investigated the victim stated that it was not memory but did not have any talk about the removal from the victim in this court, and that the victim did not properly explain the reason. Considering that there was no motive for the false statement to V, the statement in this part V is credibility and it is difficult to believe that the victim's statement is inconsistent with this.

C) On August 28, 2014, immediately after the instant case, the police officers confirmed the Defendant’s mobile phone, but the police officers confirmed the Defendant’s mobile phone; however, on August 28, 2014, immediately after the instant case, 2014, the U, etc. dispatched upon receipt of a report around 06:00 and 112 on August 28, 2014, at around 06:00, confirmed the Defendant’s cell phone gallon of the Defendant’s cell phone, and confirmed the Defendant’s cell phone gallon of the Defendant’s cell phone, and did not discover the victim’s b body pictures or sexually related

In addition, the victim, who had been at the time of leaving the defendant as above, had a talk that he would make the defendant call directly to U's mobile phone, and the victim did not disclose the fact that he would not go to the house, and the police officer did not know the fact that the victim was working with the police officer before the case, and the victim did not find the defendant, and the defendant did not know that he was working with the police officer before the case. U/X demanded the defendant who was getting off the apartment under the above circumstances to show the defendant's own mobile phone in the above circumstances, and the defendant laid down his own cell phone in the above circumstances, and the defendant tried to show his own mobile phone in the above order. Even if considering the background of confirming the defendant's mobile phone as above, it is doubtful whether or not the defendant took the video on the day of this case, such as the victim's statement.

D) Circumstances concerning the details of the victim’s report immediately after the instant case

In light of the Defendant’s mobile phone calls, around August 28, 2014, around 04:28, the Defendant was suffering from the Defendant’s apartment security guards’ phone call with YY mobile phone, and the fact that the Defendant was 21 seconds from the victim’s home to the Defendant’s house (in this regard, the Defendant made a phone call with a number that he knows that he was going from the victim’s home and going to the Defendant’s house and returned to the Defendant’s house, and the Defendant received the phone, and the victim stated that the Defendant was “I will end, I will end, I will end,” and the victim was “I will end the phone.”

In addition, the 112 Report Report Report List on the day of the instant case stated that the reporting person is a female, and the victim's apartment security guards Y also around August 28, 2014, Y4:30 to 05:30 on August 28, 2014, stated that the victim should find out the victim's apartment security guards with his view to making the report and lending his cell phone, and that the victim lent his cell phone immediately. The same applies to the case that the victim reported as a male-related problem at the time.

Nevertheless, the victim made a statement at the investigative agency that "the security guards reported the first floor and the apartment security guards to report on their behalf, and that the security guards did not talk about the contents of the report in detail because the security guards reported on their behalf," but this court made a statement that "the security guards did not talk about the contents of the report in detail because they did not report on their behalf." The security guards made a statement that "The security guards should report to 112 and request the security guards to report to 112." The security guards reported to 112 that "the defendant did not have any telephone before making the report." The statement is inconsistent with the above monetary details, the contents of the 112 report processing table, and the statement of Y. In light of these circumstances, there is no room for the victim's statement.

E) On September 2, 2014, the victim of the injury diagnosis report and the victim of the injury inflicted on the victim was immediately inside the AA Hospital emergency room and received treatment, and the doctor in charge was issued a medical certificate to the victim that he/she suffered a string of the inner part requiring treatment for about two weeks. On September 2, 2014, the victim submitted photographs containing the chest part and the left part to the police.

However, Police Officer U, who was called up on the day of the instant case, stated at an investigative agency that he was unable to confirm himself that he had no wound by appearance against the victim, and that he was unable to confirm him. In addition, at the time of issuance of the written diagnosis of the said injury, the victim said that he was "the same person before three days prior to the instant diagnosis." On August 24, 2014, 3 days prior to the said diagnosis, the date when the victim was engaged in the act such as finding the victim's house and walking the door, and even according to the victim's statement, the victim was not the date of the victim's assault from the Defendant (on August 22, 2014). Accordingly, it cannot be readily concluded that the existence of the said written diagnosis of injury and photographs alone was a result of the Defendant's act of assaulting the victim on the day.

F) Around 06:00 on August 28, 2014, immediately after the occurrence of the instant case, a police officer called out, taken a photograph of the victim’s house. At that time, the victim’s house had a bar-shaped powder, and sand was found in a ward’s floor, shock, an inner floor, bed, bed, shots, and kids. As a result, the victim’s dwelling room showed a show of blood shocking from the victim’s house to the floor of the room. However, it cannot be readily concluded that the bloodtains were caused by the Defendant’s act on the day of the instant case.

3) The judgment of this court on the facts charged of injury or rape

A) The probative value of evidence is left to the discretion of a judge, but such judgment must be consistent with logical and empirical rules, and the degree of formation of conviction to be found guilty in a criminal trial is not likely to be a reasonable doubt. However, it is not required to exclude all possible doubts, and rejection of evidence acknowledged as probative value is not allowed as exceeding the bounds of the free evaluation of evidence. Here, “reasonable doubt” refers to a reasonable doubt as to the probability of facts not compatible with the facts in light of logical and empirical rules, rather than all questions and correspondences, and it should be based on a consistent reasoning and abstract possibility of finding facts favorable to the defendant, and thus, it cannot be said that there is no reasonable doubt based on the victim’s testimony or abstract possibility, including the victim’s testimony or testimony, which is open to the public without any reasonable grounds (see, e.g., Supreme Court Decisions 2004Do362, Apr. 15, 2005; 2015Do4165, May 16, 2014).

(See Supreme Court Decision 2012Do2631 Decided June 28, 2012)

B) In full view of the following circumstances acknowledged by the court below and the evidence adopted and examined by the court below based on the above legal principles, the victim’s statement that corresponds to this part of the facts charged is sufficiently reliable. If so, this part of the facts charged was sufficiently proven with the victim’s statement and other evidence submitted by the prosecutor to the extent that there is no reasonable doubt. Accordingly, the prosecutor’s allegation of mistake in this part of the facts is with merit.

(1) Identity and consistency of the statements made by the victim

(가) 피해자의 진술은 수사기관에서 당심에 이르기까지 "피고인이 피해자에게 휴대전화의 잠금상태를 해제해 달라고 하였는데 피해자가 이를 거절하자 피해자의 코를 때렸고, 이에 코피가 나와 거실 바닥에 피가 튀자, 피고인이 거실에 흘린피를 닦았다. 피해자는 안방으로 가 있었는데, 피고인이 안방으로 들어와 휴대전화로 동영상을 찍으며 자신의 집에 다시 전화기 때문에 찾아오지 않겠다고 말하라고 하자 피해자가 잘됐다면서 피고인의 휴대전화를 빼앗아 코피가 흘러 입고 있던 원피스에 피가 묻은 자신의 모습을 찍었다. 그 후 피해자가 침대에 누워 있자 피고인이 '잘됐다. 너 증거 좋아하지' 라고 말을 하고 침대 옆 테이블에 휴대전화를 고정시킨 뒤 강간하는 동영상을 찍자고 하면서 피해자 위에 올라타 피해자의 원피스를 찢고 강간을 시도하였다"는 취지로 구체적이고 대체로 일관되어 있다. 다만 피해자는 수사 초기에 피고인이 동영상을 촬영하면서 피고인의 성기를 피해자의 성기에 대고 삽입하려는 시늉은 했으나 실제 삽입이 없었다고 진술하였으나, 피해자의 검찰 제1회 대질 신문 시 '아주 잠깐 삽입이 있었던 것 같다'는 취지로 진술한 이래 당심 법정에 이르기까지 피고인의 성기가 삽입되었다고 말하는 등 피고인의 성기 삽입 여부에 관하여는 그 진술이 일관되지 않는다.

(B) The victim filed a report with the police to seize a video image of the mobile phone held by the defendant rather than punishment of the defendant, and the victim's refusal to remain recorded as the victim of sexual assault. Thus, the investigation agency stated that there was a insertion at the time of initial investigation, but before the completion of the protocol, the victim's statement was deleted, and the defendant stated that it would be true about the defendant's act and that the prosecutor stated the fact later. ① At the court below, the police officer V who investigated the instant case stated that "at the time of the police investigation of this case, it is hard to see that the victim did not mention the fact when the victim inserted the sex of the defendant or deleted the contents of the statement," but the victim did not mention that it was the victim's statement to the same effect as the victim's statement that "at the time of the police investigation of this case, it is hard to see that it was the victim's statement that it was the most important fact that the victim did not want to have been rape and the victim's statement that it was rape."

(C) Even after August 28, 2014, the Defendant alleged that the victim had sexual intercourses under the agreement between the Defendant and the Defendant several times, and in light of these circumstances, it is difficult to recognize that the victim had sexual intercourses with the Defendant after the crime of rape, as alleged by the Defendant, even if based on the materials submitted by the Defendant to the court of first instance, it is difficult to recognize that the victim had sexual intercourses with the Defendant. Even if the victim continued sexual intercourses with the Defendant or was sexual intercourses as alleged by the Defendant after the crime of rape, such circumstance alone alone appears to be difficult to reject the credibility of the victim’s statement regarding the crime of rape. Thus, the Defendant’s above assertion is without merit.

(D) In addition, the defendant argues that the statement of the victim that the defendant raped the victim is not reliable since the defendant could not have a sexual intercourse with his contributions before the commission of rape. Thus, according to the documents submitted by his defense counsel, it is acknowledged that the defendant was prescribed about the symptoms before the commission of rape. However, it is difficult to dismiss the credibility of the victim's statement about the crime of rape because it is difficult to establish a sexual relationship with the victim at the time of the crime of rape or to dismiss the credibility of the victim's statement about the crime of rape. Thus, the above argument is without merit.

(E) In addition, the defendant asserts that the victim's statement that "the defendant saw the victim's name toward Kameras while suppressing the victim's body was 180 degrees back to 180 degrees, according to the sexual intercourse video (Evidence No. 50-1) submitted by the defendant on April 2, 2014, when the victim becomes the victim's body back to 180 degrees, the victim's face goes out of the video frame. In such a situation, when the defendant knee and knee kel kel kelra, etc. are faced with the defendant's body, so the victim's body cannot take the kmeras because the defendant's body kel kel kel, etc. cannot take the defendant's body." The defendant's statement that "the defendant saw the victim's name toward Kameras while suppressing the victim's body to 180 degrees back to 180 degrees is not reliable. However, even if the victim's face is 180 degrees above, the victim's face cannot be considered out of the defendant.

(F) On August 28, 2014, the day of the instant case, the Defendant asserts that the victim’s statement that he had been raped upon the victim’s birth was not credibility, even if the victim had been found to have been posted on August 28, 2014, regarding the video of 5, 2014 (No. 53 Evidence No. 1,2). The Defendant appears to have been unable to find the victim’s body while admitting the video of 5, and that it was difficult for the victim to open the video of 5, on the ground that it was difficult for the victim to open the video of 4, such as the victim to open the video of 5, on the ground that it was difficult for the victim to open the video of 5,000 to open the video of 5, and that it was difficult for the victim to open the video of 5,000 victim to open the video of 5,000,000). However, it is difficult for the victim to open the victim’s oral argument that it could not have been available.

Even if the victim wears her searchphones at the time of the victim’s statement, it is difficult to reverse the credibility of the victim’s statement that he/she had raped solely on the ground that the victim’s face was included in his/her sexual intercourse rather than sexual intercourse. Accordingly, the victim’s statement that he/she had been raped before the victim’s photographing was made cannot be seen as having been found out of the victim’s face. Furthermore, according to the victim’s statement, if the victim was raped after his/her photographing, the victim’s statement was placed in front of her face, and if the victim had raped before her photographing, she would not have any reason to believe that she was completely aware of the body of the victim, and the victim would not have been able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to.

(2) The existence of objective evidence consistent with the victim's statement

(A) The U.S. police officer who received the report immediately after the instant case stated in the court below that “the victim was raped from the Defendant who was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually

(B) On August 28, 2014, five hours after the occurrence of the instant case, the victim received medical treatment at AAA Hospital Emergency Medical Center around August 28, 2014. At that time, a copy of the medical records of the victim stated that “Copis are infinites, and that copis are infinites,” and that the victim’s injury diagnosis report on the next day is stated in the non-finite and the left left side, and that there is a finite, finite, finite, and finites, etc.). Such records are consistent with the victim’s statement that the victim suffered the above injury due to an assault against the inside part of the victim, and do not seem to be any circumstance to deem that the victim suffered the above injury due to any other circumstance.

(C) According to the photograph taken by the victim immediately after the occurrence of the instant case and the photograph taken by the police officer around August 28, 2014 on or around 6:00,00, around 13, 2014, the victim’s house and softens were caught by a scam of the victim’s house, scams, bed, bed, bed, scams, and kids, etc. (14). This was the victim’s assaulted against the Defendant in his ward, and the Defendant was scamd by scambling the victim’s body, but the victim was scamd with the victim’s statement that scambling and scamd. In this case, the victim was scambling the victim’s body. Considering the fact that there were several places other than the victim’s house, it is difficult to see that such other factors have occurred due to the victim’s intention to create the victim’s house for 15 hours.

(D) In light of the CCTV image data in the victim’s residence where the defendant was removed from the victim’s house after the occurrence of the instant case, and the victim’s CCTV image data 16 taken from the elevator to the first floor after the occurrence of the instant case, it appears that at around 04:21:16, and around 04:21:21, the Defendant was asked on the part of the Defendant’s right buckbucks. This is caused by the victim’s entry inside and outside the bank, and the Defendant was exposed to the victim. In this case, the victim was spited with the victim’s statement that the victim was bucked with the victim’s bucks, and that the victim was laid down in the part of the Defendant’s bucks. In addition, in this video, the Defendant’s bucked with the victim’s statement that the Defendant was bucked with the Defendant’s bucking of red fucks, which contained the Defendant’s fuck in the Defendant’s hand.

(3) The reason why the defendant visited the victim's residence

On August 26, 2014, from August 26 to 8, 27 of the same year, immediately before the occurrence of the instant case, the Defendant’s text messages between the Defendant and the victim appear to be consistent with the statement of the victim that the instant case occurred, and the Defendant’s assertion that the Defendant visited the victim’s house to notify the victim of the occurrence of the instant case, such as sending text messages to the victim continuously, and 17) by disregarding the victim who did not immediately answer, or sending text messages to the victim, or sending text messages to the victim that the same is the same as the victim’s house.) This is consistent with the statement of the victim that the Defendant was found to suspect the male relations of the victim on the day of the instant case and that the Defendant visited the victim’s house to notify the victim of the objection.

(4) The victim's attitude after the occurrence of the instant case

After the occurrence of the instant case, the victim was found to be the first floor guard room of the apartment house of the victim immediately after the occurrence of the instant case, and reported to the police (the 112 Report Handling List on the Report Report Report Report Report No. 04:29, the victim entered the report as if the report was made on behalf of the defendant and the victim, and thus, the difference is somewhat different from the statement of the defendant and the victim that the apartment security guard sent to the defendant on behalf of the defendant. However, such difference is nothing more than a shot difference that does not affect the credibility of the victim’s statement.), the police officer should find a video recording the rape upon arrival of the scene, and the police officer must act as if the police officer requested the accompanying with the defendant, and the police officer did not confirm whether there was a dynamic video related to rape in the cell phone of the defendant. At that time, the police officer did not check that there was a video related to rape in the Defendant’s cell phone even after that time, the victim did not request that the victim seize the video held by the defendant.

(5) The Defendant’s attitude after the instant case

On the day of the instant case, the Defendant was accompanied by the police officer, and the victim met himself/herself or confirmed his/her mobile phone (in cases of the Defendant’s statement, around August 31, 2014) immediately after the victim met himself/herself (in cases of the Defendant’s statement, around August 31, 2014, 19). The Defendant served as a non-cooperative attitude in the police investigation, such as failing to comply with the summons and investigation by the police. On September 20, 2014, the Defendant left his/her own mobile phone at the time of seizure and search of the Defendant’s house, which was made only after September 20, 2014, and the Defendant was found to have not been subject to seizure of his/her mobile phone

(6) Whether the victim had motive to make a false report at the time of the instant case

(A) At the time of the instant case, the victim was an attorney qualification in the U.S. and was working in a large legal office, and the Defendant was also working in the same legal office and the female problem became known to the people of the law office and became known to the public. As such, the victim was aware of the case to the other people.

(B) At the time of the instant case, the Defendant and the J had a mutual meeting.

However, it is difficult to see that the defendant made a false report to the victim due to his injury to J or multiple trials against the defendant, since the defendant expressed the obstacles to the victim as well as the defendant's capture to the victim.

(C) In addition, there is no special motive for the victim to make a false report at the time, and the victim's statement that the victim had no choice but to report to the police to prevent the spread of the motion picture taken by the defendant is fully acceptable in light of the contents of the case, such as the Defendant's speech and behavior at the time of the instant case.

4) The judgment of this court on the charge of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras)

가) 이 부분에 관한 피해자의 진술은 결국 '피고인이 당시 피해자에게 휴대전화기로 강간하는 동영상을 찍는다고 하였고 휴대전화기를 촬영모드로 해놓은 것을 보았기 때문에 당연히 동영상을 촬영하였을 것이다'라고 요약된다. 그러나 피해자 스스로도 '실제 촬영이 된 것인지는 잘 모르겠고 촬영버튼을 누르는 것은 보지 못하였다'고 진술한 바 있는 점21), 피해자가 촬영된 동영상을 확인하거나 다른 경로로 그 동영상의 존재가 확인되지도 않았던 점, 앞서 살펴본 피고인의 강간 범행의 내용 등을 보면, 당시 피고인이 성적 수치심을 주기 위하여 일부러 동영상을 촬영하는 시늉을 하였거나 실수로 촬영버튼을 누르지 않아 실제로 촬영이 이루어지지 않았을 가능성이 존재하는 점 등을 고려하면, 피해자의 위와 같은 진술만으로는 이 부분 공소사실이 합리적 의심을 배제할 정도로 증명되었다고 보기 어렵고(비록 피고인이 수사기관 이래 원심에 이르기까지는 피해자와의 성관계 장면 동영상이나 이 사건 당일 동영상을 촬영한 바 없다고 극력 주장하다가, 당심에 이르러 피해자와 교제할 당시 성관계 장면을 촬영한 동 영상 파일과 이 사건 당일 강간 직후의 상황을 촬영한 동영상 파일이 있다고 기존의 주장을 뒤집으며, 관련 자료를 제출하고 있기는 하나, 그러한 변경된 주장 내용이나 제출한 자료들의 내용을 보태어 보더라도 이 부분 공소사실이 증명되었다고 보기는 어렵다), 달리 이를 인정할 증거가 없다.

B) Therefore, the prosecutor’s assertion on this part is without merit.

3. Conclusion

Therefore, the part of the judgment below's conviction, injury, and rape in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for ex officio reversal as above, is reversed, and the prosecutor's appeal against the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes by August 28, 2014 among the acquittal portion of the judgment below is without merit, and thus, it is dismissed under Article 364 (4) of the Criminal Procedure Act.

Re-use of the judgment: The portion of the judgment of the court below that found guilty, and the portion of the non-guilty of, or rape

Criminal facts and summary of evidence

The summary of the facts of the crime and its evidence recognized by this court is as follows: Paragraph 1 and Paragraph 3-A (4) of the "criminal facts of the judgment of the court below" are added to the summary of the evidence, and Paragraph 1, E's each legal statement in the court below and the court below's trial; '1. Medical records copy (Evidence 2); '1. Injury diagnosis document (Evidence 7); '1. Injury diagnosis document (Evidence 13); '1. The victim's photograph (Evidence 13), such as the victim's injury part and blood traces, '1. The victim's residential CCTV CD (Evidence 27), '1. The victim's residential CCTV CD (Evidence 44) at the time of the crime of the police officer at the site visit 1. It is identical to each corresponding column of the court below's judgment, so it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras and photographing);

On April 2014, the Defendant, at the victim’s home of Jongno-gu Seoul International OOdong ○○○○○, and had a sexual intercourse with the victim, operated the Defendant’s mobile phone camera function in the state of her getting out of the victim, and taken video pictures containing a head of the victim’s sexual intercourse with the victim.

Accordingly, the defendant taken the body of the victim who could cause a sense of sexual shame by using the camera function against the victim's will.

3. Violence;

A. On June 4, 2014, from around 03:30 to 05:00, the Defendant mentioned the Defendant’s sexual intercourse video from the Defendant’s vehicle parked in front of the above TOdong to spread it without hearing the Defendant’s horse. The victim’s fingers cannot get off on the victim’s hand on the ground that the victim was “enoying, hying,” and try to get off on the said vehicle,” and the victim’s fingers to get off on the victim’s cell phone on the ground that he wanted to get off from the said vehicle. The victim’s clothes are cut off, and the victim’s clothes are called to go off from the phone, and the victim’s talked with the victim who was on board the said vehicle, and tried to get off the victim’s cell phone due to the victim’s mobile phone.

4. Injury, rape;

On August 28, 2014, at around 03:30 on August 28, 2014, at the home of the victim E, Jongno-gu Seoul International OOdong No. 000, the Defendant confirmed the details of the victim's cell phone by misunderstanding that the victim had met another male, and asked the victim's criminal conduct. While the victim was suffering from another female's telephone with the Defendant's cell phone, the Defendant refused the Defendant's request and did not unfold the victim's cell phone secret code one time.

After that, the Defendant: (a) stated that the Defendant was “herbing the Victim’s body, who is flaging, and flabing the Victim’s body; (b) exceeded all the clothes of the Victim; (c) took tears of the Victim’s body; and (d) took the Victim’s body toward the Victim’s body; and (d) took the Victim’s hair over by hand by putting the Victim’s hair toward the Victim’s body; and (e) pressures the Victim’s head head to take place into knish the Victim’s body. The Defendant continued to have sexual intercourse once with the Victim.

As a result, when the defendant was dissatisfied with the victim, the victim's face was taken once a week, and the victim was imprisoned with an inner face in need of approximately two weeks of treatment, and the victim was raped by having sexual intercourse with the victim once.

Application of Statutes

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

Article 14(1)(a) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (absla and other pictures used in a camera, choice of imprisonment), Article 283(1)(a) of the Criminal Act, Article 260(1)(a) of the Criminal Act, Article 257(1)(a) of the Criminal Act, Article 257(1)(a) of the Criminal Act, Article 297(a) of the Criminal Act,

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 for rape prescribed by the largest penalty)

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. Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes Exempted from Disclosure Orders and Notification Orders; 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 criminal history against the defendant; the sexual crime in this case is not against an unspecified victim); the defendant’s distorted sexual impulse, which was revealed through the sexual crime in this case, is expected to be considerably improved by the execution of principal and incidental disposition imposed on the defendant; and other circumstances, including the defendant’s age, family environment, family environment, social relationship, occupation, history and consequence of the crime, disclosure and notification orders, the degree and expected side effects of the disadvantage the defendant suffers, the effects of preventing sexual crimes that can be achieved therefrom, and the effects of protecting the victims of sexual crimes, it is determined that there are special circumstances where the defendant’s personal information should not be disclosed or notified).

Reasons for sentencing

The fact that the defendant has no criminal power is favorable to the defendant.

On the other hand, the crime of this case does not seem to be a reflection of the victim's sexual intercourse, etc., such as the victim's sexual intercourse, etc., which the defendant had been living in a personal relation, and the victim has been threatened several times by threatening and assaulting the victim as they spread. Furthermore, the crime of this case is very heavy as the victim injured the victim and raped the victim. The victim appears to have suffered serious physical and mental pain due to the crime of this case, and the victim was punished for severe punishment against the defendant. Nevertheless, the defendant does not seem to have been able to have been aware of the victim's sexual intercourse, etc., while completely denying the crime of this case, and it is also disadvantageous to the defendant, such as submitting a different sexual dynamic image with the victim, etc. to escape his responsibility.

In full view of the above circumstances and the defendant’s age, character and conduct, environment, family relationship, motive and background of the crime, means and consequence of the crime, etc., various sentencing conditions as shown in the arguments in the instant case, and the scope of recommended sentence according to the sentencing guidelines established by the Supreme Court Sentencing Committee, the punishment shall be determined and sentenced as ordered.

Registration of Personal Information

Where a judgment of conviction becomes final and conclusive on a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amera, etc.) and a crime of rape in the judgment that is subject to registration, the accused is 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 thus, the accused is obligated to submit

On the other hand, the defendant is concurrently punished pursuant to Article 37 of the Criminal Act with a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. The period for registering personal information resulting therefrom is 20 years pursuant to Article 45(1)2 and (2) of the Criminal Act. However, in light of the criminal defendant's violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amerasation and photographing) and the crime between pages, and the seriousness of criminal justice, the above period for registering personal information is not recognized to be an unreasonable long-term period, and therefore the period for registering personal information of the defendant is not specified as a short-term period.

Judges

The presiding judge, judges;

Judge Lee Young-young

Judges Sung-ju

Note tin

1) Two :2 885 pages of the trial records

2) Evidence list Nos. 125 Nos. 125, 2014-597 (Seoul Office)/14-597-9 / Dong image/D/iPhone5 Pic Vides Group 14 2014/961 VBL/IMF652. Gmv files

3) Evidence No. 46-1

4) Evidence No. 716-717 pages 5) No. 46-1 of the evidence records

6) Two thirds of the trial records 616 pages

7) Two copies of evidence records 539 pages, etc.

8) Two spheres of trial records 639-640 pages

9) Two copies of evidence, 539, 540 pages

10) One trial records 347-348 pages, etc.

11) One copy of evidence recording 12 pages

12) One copy of evidence recording 41 pages

13) The police officer was dispatched to the police officer upon the victim’s report, but the police officer found the video and went to the defendant’s office together with the victim, and taken a photograph again by returning to the victim’s office.

14) Evidence No. 51-61 pages, 208-213 pages

15) The time when the Defendant got the victim's house and ELV was around 04:21, and the time when the victim went to the guard room and made a telephone with the Defendant was around 04:28, and the time when the victim filed a report directly or through the security guard was around 04:29.

16) Evidence list 27

17) One copy of the trial record 187 pages, two copies of evidence, 487-489 pages

18) Two copies of evidence recording 492 pages

19) Two copies of evidence recording 584 pages

20) Evidence records 2 587-590 pages

21) Evidence No. 30 pages, 1, 393 pages of the trial records

심급 사건

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