2015No3155 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.)

(ix)a similar rape, or rape;

A

Prosecutor

In the face of a trial, the prosecution and the prosecution;

Law Firm (LLC) B

Attorney C, D

Seoul Western District Court Decision 2015Gohap195 Decided October 21, 2015

January 15, 2016

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. As to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras)

In light of the reliable statement of the victim and the contents of the plastic Stockholm dialogue made between the defendant and the victim, the court below found the defendant not guilty of this part of the facts charged despite the fact that the defendant had taken the victim's body and negative parts against the victim's will at the time.

B. As to similar rape and rape

According to the consistent statement of the victim in the main part and adult goods seized by the Defendant, the Defendant at the time of the instant case, as if he were aware of the images of the body and the parts of the body of the victim, threatened the victim with intimidation, and continued sexual intercourse despite the refusal of the victim, may sufficiently recognize the fact that the victim had been raped in a dynamic or scientific sexual act. Unlike this, the lower court acquitted the Defendant of this part of the facts charged, it erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

2. Determination

A. As to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras)

1) The court below held that the defendant's testimony is difficult to believe and the victim's statement is taken in light of the following circumstances: "3.A. Of the judgment's 'the judgment on the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the use of the camera, etc.)'; "the judgment on the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the identification No. 51)"; the evidence which corresponds to the use of the camera, etc. in the facts charged in this case is hard to recognize as being taken against the victim's will at the time of photographing the parts of the body and body of the victim as stated in the facts charged in this case; and the evidence which the court below duly adopted and investigated by the prosecutor is insufficient to recognize as otherwise in this part of the facts charged.

2) In light of the records, a thorough examination of the evidence duly adopted by the court below in light of the records, the court below's determination that the credibility of the victim's statement is dismissed, and that there is no sufficient evidence to acknowledge this part of the facts charged is just, and there is no error of law by misunderstanding facts or by misunderstanding

Therefore, the prosecutor's allegation of mistake and misapprehension of legal principles is without merit.

(b) The point of similar rape and rape;

1) Under the title of "3.3. judgment", "......... judgment on similar rape and rape" among the facts charged of this case, there are records of seizure of the victim's statement and adult items, and considering the following circumstances acknowledged by evidence duly adopted and examined by the court below, etc., it is difficult to believe that the victim's statement is not reliable, and under such circumstances, the existence of adult items that can be fully used in the course of dynamic sexual acts in accordance with the doctor's concurrence between men and women is insufficient to recognize that the defendant was in dynamic rape and rape by threatening the victim, and the evidence submitted by the prosecutor alone is insufficient to prove that this part of the facts charged is proven without reasonable doubt.

A) The victim made a statement from the investigative agency to the court that he had been urged by the Defendant as if the Defendant were to spread the video or would delete the video image from the perspective of her sexual act. However, even when examining the content of the restored Stockholm dialogue, it does not appear to have any evidence to acknowledge that the Defendant had threatened or reconfisced the victim as above. Furthermore, even if the Defendant had threatened the victim after the termination of the first sex relationship, it is difficult to readily understand that the Defendant provided the victim with money in order to re-confiscate with the victim, if the Defendant threatened the victim, it is difficult to readily understand that he provided the victim with money in order to engage in a sexual intercourse.

B) The victim made a statement to the effect that he was prepared to erase the Defendant’s future videos or photographs. However, there is room to view that the victim’s statement is inconsistent with the victim’s other statements that the victim believed that he would delete the videos or photographs when he/she responded to the Defendant’s request.

C) Before entering the Defendant’s delivery or Maurel, the victim said that “packers to death from now.” However, in light of the Defendant’s cryptive behavior that mainly uses the horses aiming at hinginginginginging or going against women, and the attitude and content of the dynamic sexual act that took place later, it seems to be merely a content suggesting that the victim will engage in dynamic sexual acts rather than having given notice of harm to the victim as it is, rather than having given notice of harm to the victim.

D) Even based on the statement of the victim, since the Defendant did not directly exercise physical force in the course of similar rape or rape in this part, it appears that the Defendant could have sufficiently escaped from the process according to the victim’s intent, and the victim could not complete the act by suffering from her dynamic sexual act, and there seems to be no circumstance that the victim did not have completed the act by suffering from her dynamic sexual act, and there is doubt as to whether the Defendant had raped or raped the victim against the victim’s will. Even if the victim had an internal intent to remove dynamic images or photographs while receiving her dynamic sexual act, it is difficult to recognize the Defendant’s intimidation immediately because it was against such victim’s will, unless there is any material to deem that the Defendant was aware of such act.

E) It is difficult to understand that the victim’s statement about the circumstances in which the complaint was filed is not consistent, and even if examining the contents of the statement, it is difficult for the male-child group to find out that the male-child group had sexual intercourse with the victim, which he did not know of the first day, and was forced to take pictures in the process, and that the male-child group was forced to have sexual intercourse with the victim again without reporting despite the defect of the report on the first day. Rather, it is doubtful whether the victim did not notify the male-child group of the fact first day, but did not necessarily have any choice but have any choice to have a sexual relation with the defendant.

2) The above circumstances, etc. of the court below and the evidence duly adopted and examined by the court below, i.e., when the defendant had sexual intercourse with the victim due to the use of adult goods, etc., even if the victim did not want to have sexual intercourse with the defendant, even if the victim did not want to have sexual intercourse with the defendant, it is difficult to recognize the defendant's intimidation as well as it is difficult to recognize the defendant's criminal intent for rape and similar rape as mentioned above, and further, it is difficult to recognize the defendant's criminal intent, as long as there is no evidence suggesting that the defendant had been aware of sexual intercourse with the defendant, or that the defendant had been aware of his sexual intercourse with another channel. The victim did not appear to have any other damage at the time of entering the investigative agency and court of the court below, and the defendant tried to delete the victim's sexual intercourse with the defendant as soon as possible, or that the victim did not have any error in the law by misunderstanding the legal principles as stated above, since he did not have any influence on the defendant's appearance or omission of the defendant's body.

Therefore, there is no reason for the prosecutor's assertion of mistake and misunderstanding of legal principles.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The judge of the presiding judge shall be mining only

Judges Park Jong-young

Judges Full-time Leave