[1] The degree of violence and intimidation in the crime of rape and the criteria for its determination

[2] The case reversing the judgment of the court below which found guilty of the injury resulting from rape on the ground that it erred by incomplete hearing or violating the rules of evidence

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

[2] The case reversing the judgment of the court below which found the defendant guilty of the injury resulting from rape on the ground that it erred by incomplete hearing or violating the rules of evidence

[1] Article 297 of the Criminal Code / [2] Article 297 of the Criminal Code, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 99Do519 decided Apr. 14, 1992 (Gong1992, 1644), Supreme Court Decision 99Do2608 decided Sept. 21, 1999 (Gong1999Ha, 2275), Supreme Court Decision 2000Do1253 decided Jun. 9, 200 (Gong2000Ha, 1695), Supreme Court Decision 200Do1914 decided Aug. 18, 200 (Gong200Ha, 2036), Supreme Court Decision 200Do53981 decided Feb. 23, 2001 (Gong200Ha, 2036)

Defendant

Defendant

Attorney Lee B-soo

Seoul High Court Decision 2000No2391 delivered on December 22, 2000

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts: around March 21, 200, the defendant exempted the clothes of the victim under the influence of alcohol (age 61) from the beneficial growth female room 201 in Dobong-gu, Seoul Special Metropolitan City around 201, in order to have sexual intercourse (age 61) around March 9, 200; the victim took a bath and breath while the victim took a bath, she took a part in the victim's body, prevented the victim's body from moving back to her body and her arms; the victim's knee is forced to escape from sexual intercourse with the victim's kne, and the victim was sexual intercourse with the victim's kne, and the victim was sexual intercourse with the victim's kneeb, which requires two-time medical treatment. Meanwhile, the defendant recognized that the defendant had a weak ability to distinguish things or make decisions under the influence of alcohol at the time of committing the crime.

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

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

B. The first instance court refers to the defendant's prosecutor's office and the first instance court's partial statements, the police of the victim, the prosecutor's office and the first instance court's respective statements, the statements in the police of the defendant and the victim-oriented Kim Jong-hee, the second instance court's statements in the police of the defendant and the victim-oriented Kim Jong-hee, as evidence of guilt, and the court below cited them as they are and examined in order.

(1) First, while recognizing the fact that the Defendant exercised part of the force of sexual intercourse from the police to the court of the court below, the Defendant concluded a sexual intercourse with each other at the time of sexual intercourse, and denied that the Defendant did not rape by suppressing the victim’s resistance, such as the written facts in the facts charged.

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(2) Next, in light of the statement of Kim Jong-hee, the owner of the beneficiary growth zone, which is the place where the instant crime was committed, there is no content in the facts charged. Rather, the Defendant did not have any content in the facts charged until the Defendant gets out of accommodation expenses and entered the 201 room immediately adjacent to the Kashter, or did not have any lusium, and when the Defendant brought the order beer and tobacco, then the Defendant was pushed in as a way to go out the body of the Defendant under the influence of alcohol and received money, and was unable to hear the sound of the Defendant, such as the lusium or the rus, during the course of being bread, and did not hear the sound of the Defendant. At around 23:00, the Defendant got back to the victim and the Defendant got away and reported the her her brus (the number of 19,23,80 pages).

When the defendant and the victim first come to go to the court, the statement of Kim Jong-hee's best heading is replaced by the same purpose (number 84,85,86 pages).

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

The victim is operating a restaurant 9 at the entrance of the Gwanak-gu, Seoul Metropolitan City, 10-dong, and the defendant has a restaurant as a guest and is known to him/her on a multiple occasion (the number of pages 12, 14 and the trial records 65 pages, hereinafter referred to as "public several pages").

With respect to the process of making a sexual intercourse between the defendant and the victim at the entrance of a mountain village, the police station opened a sexual intercourse with him/her, and her was under the influence of drinking with him/her, leaving the defendant's house in front of the ticket office, leaving him/her in the house, leading him/her to the house, leaving him/her in the house, leaving him/her in the house, leaving him/her off his/her house, leaving him/her off his/her house with his/her mouth, leaving him/her down, leaving him/her down his/her house, leaving him/her down his/her buckbucks and head, leaving him/her down, leaving him/her on his/her house, and she was able to get out of his/her house, and she was raped by the defendant (at the time of leaving his/her house, the victim was able to leave his/her house and her house, and the victim was able to have been able to escape from the defendant's body, and the victim was able to leave his/ her clothes or her house.

The prosecutor also stated the same content as to the circumstances of rape (7 pages), and the defendant was frightened in a chiller by forcing the victim to enter the room (78 pages), and obstructed him/her from being locked (the number of 78 pages). He/she was 2 Hobscen in a small amount of 2 children, but he/she was frighter in an open space, so he/she did not want to assist her so, she was unable to do so together with the defendant. After sexual intercourse, the defendant was frighter in his/her body, and the victim was frighten in his/her mouth or her body (78,81 pages), and the defendant was frighten in his/her own body and was frighten in his/her own body and was frighten in his/her own body and was frighten in his/her own body and was frighter in his/her own body and was frighter in his/her own body, and the defendant was frighter in his/ 84.

C. However, the victim’s statement is not consistent, or is difficult to be deemed to be an act of raped victim, and it is difficult to believe that it is inconsistent with objective facts and even if it is contrary to objective facts.

(1) First of all, the part of the statement that the defendant forced the victim to her to her arm's length, forced the victim to 201 room, forced the victim to her to 201 room, or entered the her arm's length room, and threatened him to her with the door of the her arm's length, Kim Jong-hee. Unlike the victim's assertion, the part of the statement was contrary to the statement and the statement that the defendant was forced to her to her arm's length, and her head to her to her to her to her to her to her head and head, or to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her head and her to her to her to her to her to her to her to her to her to her to her to her head and her to her to her to her to her.

(2) In addition, the Defendant asserts that, after having established a sexual relation, the victim was able to go ahead of the beer and tobacco which the Defendant ordered after having taken and visited the beer and tobacco, and the victim was able to go to go to the beer and tobacco, and that there was no money to go to the court of first instance since the police, and that the victim did not have to go to the court of first instance. However, in light of the consistent statement of Kim Jong-hee, the victim's statement about this part is obvious that the victim's behavior or attitude was made after rape, and if the victim was locked, and the defendant was raped and raped, as argued by the victim, then the victim did not have any opportunity to visit the beer and tobacco, the victim could not help the middleer even if she was able to escape, or the victim did not have any way to escape the situation.

(3) 물론 피해자가 자신이 여관에 끌려 들어간 사실이나 강간당하는 것도 알지 못할 정도로 술에 만취한 탓으로 엉겁결에 강간을 당하고 여관 여주인이 맥주와 담배를 가져 온 사실도 기억하지 못한 것으로 볼 여지도 없지 않으나, 피고인과 여관 여주인 김정희 및 그 아들 최민호의 진술에 의하여 인정되는 피해자의 전후 행적에 비추어 볼 때 정신을 잃을 정도로 술에 취하였다고는 보이지 아니한다.

(4) After the Defendant entered a sex relationship, the Defendant left the room first, and the Defendant left the room later, and the victim was found in the speed of the road, and no money was found, and he returned to the doer and returned to the doer, and returned to the doer, and returned to the doer, 201 because he went again to the doer, and returned to the doer, and returned to the house, and changed the money again (number of 82,83 pages). On the other hand, the victim returned to the doer, went back to the house, followed the Defendant, and followed the Defendant again, without entering the house (number 38,83,84 pages). However, in the first instance court, the Defendant went back to the 6th court of first instance only because he saw and she went back to the house (number 82,83 pages).

As such, it is difficult to view that the victim’s statement that he/she was raped against the Defendant was proven beyond reasonable doubt, and there is no evidence to prove otherwise.

Therefore, the court below should have deliberated the circumstances before and after the establishment of a sexual relation with the victim in detail and make it impossible or considerably difficult for the defendant to resist against the victim or make it difficult for the defendant to resist, and even though the defendant and the victim at that time should have been aware of the credibility of the defendant's statements, it is not sufficient to conduct a trial or to determine the defendant guilty of the facts charged in this case by accepting only the victim's statement and violating the rules of evidence, which clearly affected the conclusion of the judgment.

The part of the grounds of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)