2017Ma1280 Quasi-rape

A

The successor (prosecution) and Kim Jong-Un (Trial)

Attorney B (Korean National Assembly)

April 6, 2018

A defendant shall be punished by imprisonment for three years.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Criminal facts

The defendant is a taxi engineer, and the victim C (V, 20 years old) is a passenger who has been aboard a taxi operated by the defendant.

On October 22, 2017, at around 03:37, the Defendant found the victim under the influence of alcohol in front of the “D” alcohol house in Mapo-gu Seoul, while drinking together, brought the victim at the destination to the injured party, and was able to take the victim into the taxi. Thereafter, the Defendant: (a) the victim was able to take the fright in the taxi while driving the cab on the street; (b) the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the fluor of the b

Therefore, at around 05:27 of the same day, the Defendant, in front of Gangnam-gu Seoul, 05:27, she laid down his/her fingers and her chests in the back seat of the victim, laid down his/her fingers, laid down his/her fingers into the sound part of the victim, continued to be off his/her clothes, and inserted the Defendant’s sexual flag into the sound part of the victim.

Accordingly, the Defendant raped the victim who was unable to resist.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness C and F;

1. Each prosecutor's protocol of examination of the accused;

1. Victims' photographs, etc. taken by a police hospital, records of taxi operation, card specifications, settlement receipts, photographs of the payment, investigation reports (the analysis of CCTV for crime prevention, etc.), and closure photographs of each camera;

Application of Statutes

1. Article applicable to criminal facts;

Articles 299 and 297 of the Criminal Act

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. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 Defendant has no record of having been punished for the same sex offense, and the crime in this case alone is difficult to readily conclude that the Defendant has a criminal tendency against an unspecified number of unspecified victims. The registration of personal information of the Defendant and the completion of sexual assault treatment program alone are likely to have the effect of preventing re-offending. In addition, comprehensively taking account of the Defendant’s age, family relationship, social relation, and social relationship, the expected interest and preventive effect expected by an order to disclose or notify the Defendant’s personal information in this case, and any disadvantage and side effect therefrom, it is reasonable to deem that the Defendant’s personal information should not be disclosed or notified) and the

1. Summary of the assertion

Although the defendant acknowledged the fact that he had sexual intercourse with the victim, the victim was not in the state of mental disorder or inability to resist at the time, and when the defendant was found to have been in the back of the taxi, the victim agreed to attract the body of the victim. Thus, the defendant was only sexual intercourse with the victim under the agreement with the victim, not quasi-rapeing the victim by taking advantage of the victim's mental disorder or non-smoking condition.

2. Determination

In light of the following circumstances, the Defendant and the defense counsel’s assertion is rejected, since it can be acknowledged that the victim was unable to make a proper decision or expression of opinion at the time of committing the instant crime, because the victim was in a state of mental disorder or inability to resist.

1) The victim, from the investigative agency to this court, is memory only from DNA alcohol house located in Mapo-gu to the fact of drinking alcohol with the victim F et al. at the victim's sexual organ in Mapo-gu. After that, the victim's friendly F et al. went into the victim's Kaf, and the fact that the victim took the victim's body into the sif, or that the victim took the victim's body in the sif, is not memory. However, the defendant is satisfying the victim's body, and the mother's credit card was lost, and the defendant paid the sif, etc. by using the victim's mother's credit card, and it is hard to say that the defendant paid the sif's fee to the victim's sexual organ, and it is difficult for the defendant to continuously stop sexual intercourse with the victim, and the victim's phone number is necessary, but the victim's statements are made in a consistent manner or consistent with the victim's statements in the part of the sif's phone number.

2) 증인 F는 이 법정에서, 위 술집에서 나올 당시 피해자가 혼자서는 제대로 걷지도 못하고 휴대폰을 잃어버린 것도 알지 못할 정도로 만취한 상태였고, 피해자를 잠시 카페에 데리고 갔을 때에도 혼자서는 의자에 제대로 앉아 있지도 못할 정도였으므로, 자신이 택시를 잡아주면서 피해자에게 어떤 신용카드를 꺼내야 하느냐고 물어 피해자가 말해준 피해자 어머니 명의의 신용카드를 피해자의 지갑에서 꺼내 택시 기사인 피고인에게 직접 건넸다고 진술하였는데, 이러한 당시 피해자의 주취 상태에 관한 F의 진술이 피해자의 진술과도 부합한다. 또한 피해자는 이 사건 범행 당일 13:30경 서울동부 해바라기센터를 방문하여 피해 사실을 신고하였는데, 그 당시까지도 구토를 계속하였다(수사기록 12쪽).

3) The Defendant, in relation to the circumstances after leaving the victim to the taxi, discussed two times at the time of two interrogations of the prosecution. The Defendant, alone, tried the victim to remove earth and sand in a state in which the body cannot be accumulated without gathering earth and sand, and sprinked so that the victim could break away soil and sand, and even if the Defendant did so on one occasion, he did not lower the victim’s bags and their contents on the floor, the Defendant stated to the effect that “the victim would have come to the front 7th place on behalf of the Defendant.” Moreover, the Defendant did not appear to have been aware of the fact that the Defendant would not have arrived at the Defendant’s charges until 05:40,04, by using the credit card in the name of her mother on board the taxi, and did not appear to have arrived at the Defendant’s charges until 7:504,00,000 won. The Defendant did not appear to have arrived at the Defendant’s answer to the above reasons.

4) As above, the Defendant was able to pay the taxi fee to the victim once 20 minutes after the payment of the taxi fee, and claimed that the victim had expressed his/her consent by stopping the body. However, as seen earlier, the victim was under the influence of alcohol from the time he/she gets on a taxi to pay the taxi fee until the payment of the taxi fee was made, and it is reasonable to view that the Defendant had sufficiently recognized that the victim was under the influence of alcohol to make a proper decision or unable to express his/her opinion at the time of committing the instant crime. The Defendant also believed that the consent was given by the victim in the second interrogation of the prosecution by the second prosecutor was dismissed, and that the statement was reversed (284 pages of the investigation record).

5) In light of the fact that the victim was asked at the time of the victim's boarding the taxi, the defendant and his defense counsel did not have taken the victim's right to walk at the time of the victim's boarding the taxi to the extent that the victim was unable to resist, and there was a resistance against the fact that the mother of the victim made a telephone call to the taxi company where the defendant works for the defendant, and paid excessive amount of the taxi fare, but there was no resistance as to the crime of this case, and therefore, the victim's statement is difficult to believe. However, even if the victim tolded at the time of the defendant boarding the taxi, there is time interval between the time of the crime of this case and the time of the crime of this case, and in the case of the fact of quasi-rape damage, such as the crime of this case, it is general that the victim was aware of the damage. Thus, it is insufficient to acknowledge the above facts alone

1. Reasons for sentencing: Imprisonment with prison labor for up to 30 years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] General Criteria for Sex Offenses and the Nos. 1 (General Rape) (Special Rape)

[Scope of Recommendation] Basic Field, Imprisonment for 2 years to 5 years

[Scope of the revised sentencing] Three to Five years of imprisonment (the lowest limit of the applicable sentencing in law is higher than the minimum limit of the recommended sentencing)

3. Determination of sentence: The crime of the case of the case of the case of three years in prison is under the influence of alcohol and the defendant, who is a taxi engineer, has a duty to safely transport the victim's boarding the taxi to the destination, and the nature of the crime is very poor, and the victim seems to have suffered considerable sexual humiliation and mental suffering due to the crime of the case of the case. Nevertheless, the defendant did not make any effort to recover the damage of the victim while denying the crime of the case of the case of the case, and the victim is punished against the defendant.

However, considering the fact that the defendant has no criminal record for the same kind of crime in favor of the defendant, the punishment shall be determined like the order, comprehensively taking into account the following factors: the defendant's age, character and conduct, environment, family relationship, motive, means and consequence of the crime, and the circumstances after the crime are considered.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant 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 is obligated to submit personal information to the competent authority pursuant to

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu