2017Gohap69 Violation of the Act on the Punishment, Protection, etc. of Sexual Crimes (13)

Minor Rape, etc.)

A

Park Jong-hee (Court of Prosecution), Park Il-hee (Court of Justice)

Law Firm B

Attorney C, D, and E

July 27, 2017

A defendant shall be punished by imprisonment for eight years.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

Criminal facts

around 2004, the Defendant worked as a driver of FF Co., Ltd. (hereinafter referred to as “F”), and was in a relationship with I with the mother of the Victim G (F) who became aware of while working as a driver.

1. In 2004, the Defendant promised the victim (at that time, 10 years of age) who was in line with the promise site in the passenger room on the lake 'Kel located at Sinm Y at Sinm Y at Sinm M. S. 2004, and when I went to the above motherel, I would like to rape the victim, and then I would like to have sexual intercourse with the victim's body located above the body of the victim, who forced the victim to be placed on the floor and forced on the floor, forced the victim to fright up, and forced the victim to fright his body and resisted his body, and forced him to do so.

Accordingly, the defendant raped a female victim under 13 years of age.

2. The Defendant, at the same time and place as set forth in Paragraph 1, entered a bath, carried his body, and knife the victim who was seated in the front seat, and forced the victim to enter the victim under this part of the boom, which covers his bridge, and forced the victim to take the head of the victim by hand, and immediately put him into the victim’s sexual flag in the victim’s drafting, and forced the victim to do so. Accordingly, the Defendant committed indecent act by force on the victim who is a person under 13 years of age.

3. In 2004, the Defendant, at the stairs of “M building near the LM building at the time of Boming,” had been talked with the victim in order to force indecent acts by force, and the victim was able to have his own dancing with the victim, and the victim was able to place the victim in the drafting of the victim, and the victim was able to talk with the victim in his hand.

Accordingly, the defendant committed indecent acts by force against the victim who is under 13 years of age.

4. In 2004, the Defendant: (a) in the stairs connected to the second floor bowling of LA building at the time of Eul-si 2004, the Defendant told the victim to force indecent acts by compulsion of the victim who was next to I; (b) followed the victim by his own own hand, etc.; (c) followed the victim by his own hand, etc.; (d) followed the victim by the victim, etc., and (e) brought the victim into the drafting.

Accordingly, the defendant committed indecent acts by force against the victim who is under 13 years of age.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness G and N;

1. Partial statement of the witness 0;

1. A protocol of examination of part of the defendant by prosecution;

1. The prosecutor's office and the police statement concerning G;

1. Report on internal investigation (attached to a victim's family relation certificate, etc.), investigation report (E-Mail survey), requests for delivery, accompanying documents, such as vehicle register, investigation report (hereinafter referred to as "P vehicle verification report");

1. F’s inquiry reply;

Application of Statutes

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

Article 4 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010; hereinafter the same shall apply), Article 8-2 (1) of the former Act on the Punishment, Protection, etc. of Sexual Crimes (amended by Act No. 7413, Mar. 24, 2005; hereinafter the same shall apply), Article 297 of the Criminal Act [the point of rape of minors under the age of 13: Provided, That the upper limit of the punishment shall be governed by the main sentence of Article 8 and Article 1 (1) of the Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply], Article 4 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 8-2 (2) of the former Act on the Punishment, Protection, etc. of Sexual Crimes, Article 298 of the Criminal Act (Appointment of each sentence).

1. Aggravation for concurrent crimes;

Punishment of sexual crimes due to rape with the largest penalty provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act, and the aggravated punishment of concurrent crimes against violations of the Protection, etc. of Victims (Minor Rape, etc. under thirteen years of age)

1. Order to complete programs;

Article 21(2) main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 4 of Addenda (Act No. 11572, Dec. 18, 2012) is omitted to issue an order to disclose or notify and to have no obligation to register personal information

Since each crime in the judgment is a sex offense against a child or juvenile before June 30, 2006, it does not constitute an offense subject to disclosure and notification (see, e.g., Supreme Court Decision 2013Do14349, Feb. 13, 2014; 2013Do275, Feb. 13, 2014). No personal information is subject to the legal registration at the time of the instant crime. Moreover, the provisions on disclosure order, notification order, and personal information registration under the current Act on the Protection of Children and Juveniles against Sexual Abuse and the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes do not apply retroactively to each of the instant crimes. Accordingly, the Defendant is not subject to disclosure order and notification order, and the Defendant has no obligation to

The defendant and defense counsel's assertion

1. Summary of the assertion

The Defendant did not commit rape or indecent act by compulsion as stated in the facts charged. The Defendant did not have any relationship with I as well as the mother of the victim, and did not have any relationship with I and the victim, and there was only the fact that I and the victim met from the stairs connected to the second floor bowling of LA building and the "M building" stairs connected to the second floor bowling of LA building, but there was only a fact that I and the victim met with the victim by dividing them.

2. In light of the following circumstances acknowledged by the evidence duly admitted and investigated by this Court, the credibility of the victim’s statement may be sufficiently recognized, and the facts charged by the Defendant, such as rape and indecent act by compulsion, may be acknowledged.

Therefore, the defendant and his defense counsel cannot be accepted.

A. The content of the victim’s statement. The victim consistently made the following statements from the investigative agency to this court. The victim’s statement contains a number of specific and detailed contents to the extent that it is difficult to describe if the victim did not actually experience, in light of the rule of experience, there is no unreasonable or contradictory part in light of the rule of experience, and the detailed parts are consistent.

■ 피해자의 주요 진술내용(수사기록 제15면 이하, 수사기록 제242면 이하 등)「피해자가 4학년이던 2004년경 피고인과 피해자의 어머니 는 내연관계였고, 는 피고인을 만나는 곳에 피해자를 자주 데리고 갔다. 2004년 여름경 피고인, , 피해자는 함께 모텔에 갔는데 피고인이 에게 무언가를 시켜 가 모텔에서 나간 후 피고인이 돌변하여 피해자를 잡으려 했고, 피해자는 계속 방안을 빙빙 돌며 도망다니다가 피고인에게 잡혔다. 그 후피고인은 피해자의 옷을 모두 벗기고 강제로 피고인의 성기를 피해자의 성기에 삽입하였고,약 2~3분 가량 지난 후 성관계가 끝나 피해자는 화장실에 가서 몸을 씻었고 그 과정에서피해자의 성기에서 피가 나는 것을 보았지만 당시에는 왜 피가 나는지 몰랐다. 피해자가 화장실에서 나오자 피고인은 하반신에 이불을 덮은 상태로 누군가와 통화를 하고 있었는데피해자에게 손짓으로 '이불 속으로 들어가 피고인의 성기를 빨라'고 요구한 다음 피해자가피고인의 성기를 빨기 시작하자 손으로 피해자의 머리를 눌러 약 30분간 강제적으로 피고인의 성기를 빨게 하였다.」「같은 해 가을경 | 와 피해자가 M빌딩 계단에서 피고인을 기다리고 있었는데, 몇 분 뒤피고인이 와서 빌딩 계단 위에 서 있던 피해자에게 입을 맞추면서 피해자의 입 안에 혀를집어넣었다. 그 다음 피해자가 서 있던 계단으로 올라온 피고인은 피해자의 성기를 만졌다.」

In the same year, the defendant, I, and the victim met only with the stairs connected to the second floor bowling of the L building. The defendant in dialogueed with the victim, and the victim was "one-half minutes of business," and the victim was only a person in charge of the victim's sexual organ with approximately one-half minutes of business, and then the victim was able to see the victim's sexual organ with approximately one-half minutes of business. The next victim was set up on the floor, the victim was faced with the victim's sexual organ, and was laid up inside the victim's entrance."

B. The objective circumstances consistent with the victim’s statement revealed that each of the instant crimes was committed during a considerable period of time, around 2004, when the victim was at the age of 10. However, the victim was very shocked to the victim at the time, and subsequently, made efforts to not be forgotten with the Defendant’s face, name, and the back page of the registration number of the motor vehicle. The victim’s following statements include a majority of the contents that are not known if they were not directly experienced, and are consistent with the Defendant’s partial statement and objective evidence and circumstances, and are considerably unreasonable or contradictory in light of the empirical rule, and thus, the credibility of each of the instant crimes is high.

① The Defendant stated that the Defendant’s mother was unable to walk on the phone on his own due to intellectual disability, and that he was unable to receive money at the cash withdrawal, and that he was in possession of the Defendant, and that I was able to talk with the Defendant from around 2004 to Ga even at the time of delivery of the Defendant.

이에 관하여 피고인은 2004년경 거제시 Q에 있는 R아파트 107동에 있는 F의 숙소에 거주하였고, I도 위 R아파트 101동에 거주하여 피고인이 위 숙소를 오가는 길에 I와 자주 마주치게 되면서 I를 알게 되었으며, 와 서로 연락처를 주고받은 후 L 주변에서 몇 차례 만났고, 가 피고인과 만날 때 피해자와 피해자의 동생을 자주 데리고 나왔으며, I의 지인이 피고인에게 가 피고인을 너무 좋아하니 하룻밤 자고 가면 안 되겠냐고 말하는 것을 들은 적이 있다는 사실을 인정하고 있다.

② At the time of 2004, the Defendant stated that: (a) the bus operated by the Defendant was formally departing from S and go to Seoul, and that there was a case between S in a non-official way to repair the vehicle (Article 279 of the Investigation Records).

③ After the completion of bus operation, the victim stated that the name of the bus company operated by the defendant at the time is Fhigh speed, the number of the bus registration number of the bus is 'U', and the operation section is Seoul-T section because there are many cases where the defendant moves I and the victim to S, etc. on the bus.

In fact, the defendant, as a driver of the "F" around 2004, operated the "Seoul-T Section" bus, and the "F" owned the "P bus registration number" bus around 2004.

Around 2004, the defendant asserts that the victim's statement is false because the back of the vehicle registration number of the bus operated by the defendant is "V". Around June 20, 2017, F sent a inquiry inquiry reply to the purport that the defendant's back of the vehicle registration number of the bus operated by the defendant around 2004, as the defendant alleged above, is "V". However, as the investigative agency demanded F's order to work for the defendant, and around 2004, F sent a fact-finding reply that it is impossible for the victim to know that it was all destroyed the 204-year vehicle registration number of the bus operated by the defendant, and considering that the fact-finding of F's general official in charge was insufficient to recognize that the defendant was not aware of the 204-year vehicle registration number of the investigator's additional phone, the fact-finding of the defendant's 204-year vehicle's late bus registration number of the above 200-year vehicle.

Considering the fact that it was difficult to identify a similar motor vehicle registration number as above, the victim’s statement cannot be readily concluded solely on the ground that there is a difference between the back of the actual motor vehicle registration number of the bus operated by the defendant and the back of the motor vehicle registration number the victim stated. (The victim stated that: (a) the victim was willing to bring about money to the defendant; (b) the victim forced the defendant to bring about money to the defendant; and (c) the victim committed assaulting I while forcing the defendant to bring money to the victim; and (d) the victim was able to find money at the time of cash payment at the time of cash payment; and accordingly, (b) the victim was able to find money at the time of cash payment; and (c) the victim was able to obtain money from the cash payment.

In fact, there is a circumstance that is consistent with the above statements of the victim, such as the fact that the defendant took over the I's money between the bus officers around 2004, and due to the fact that the defendant received a new bus whose back page of the registration number is a "X" and later he left the bus only for about a week after he received a new bus, and that the person I called I's O's O's O's O's 10 million won was called the defendant by telephone, and requested the defendant to return 10 million won.

⑤ The victim stated that the Defendant’s sexual flag was five shapes of match and that there was no other characteristic.

In this regard, the defendant asserts to the effect that two plastic slots are stuffed in his or her sexual flag, and that since the victim was unaware of the size of his or her sexual organ, the victim's statement cannot be believed.

However, in full view of the following facts: (a) the victim was a woman who was only ten years of age with no experience in sexual intercourse at the time of the crime of rape in this case; (b) the victim was rape and similar rape from the Defendant; and (c) at the time of the crime of rape in this case, the victim made the above statements at the time of the crime of rape in this case for about 12 years after the crime of rape in this case; (d) even if the victim was unable to accurately know or memory the characteristics and size of the Defendant’s sexual organ, such circumstance alone

C. The grounds for filing a complaint by the victim around May 2016

The victim did not file a complaint against the defendant around May 2004 and stated to the following purport as to the circumstances in which the defendant filed a complaint.

피해자는 2004년경 이 사건 각 범행을 당한 직후에는 성경험이 없는 만 10세의 소녀에 불과하여 이 사건 각 범행으로 입은 피해와 그 의미를 제대로 알지 못하였고, 지적장애가 있는 어머니와 교통사고로 뇌를 다친 아버지에게 이 사건 각 범행을 당한 사실을 말하더라도별다른 도움을 기대할 수 없었으며, 2004년 말경 아버지와 어머니가 이혼을 한 후 Y에 있는 할머니 댁으로 보내져서 2004년경 피고인을 고소하지 못하였다.피해자는 중학교 3학년이 될 무렵에서야 피고인이 벌을 받아야 한다고 생각을 하게 되었으나, 피고인을 찾을 수도 없었고, 가족 또는 친구에게 도움을 구하지도 못하였다.그런데 피해자는 이 사건 각 범행 후 약 12년이 지난 2016. 3. 27.경 대구 Z정류장에 피해자의 아버지를 배웅하러 나갔다가 그 곳 대합실을 가로질러 화장실을 가는 피고인을 우연히 보게 되었고, 피고인이 12년 전 피해자를 강간 및 강제추행한 사람이라는 것을 바로알아볼 수 있었다.피해자는 2016. 4.경 함께 거주하는 피해자의 고모인 N에게 처음으로 피해사실을 고백하였고, N의 도움을 받아 2016. 5.경에야 피고인을 고소하게 되었다.

In full view of the following circumstances: (a) the victim could not have known the victim’s age, degree of intellectual disability, etc. on the ground that the parent of the victim was unable to obtain help from the victim; (b) the victim could sufficiently understand the circumstances in which the victim filed a complaint with the Defendant with the victim’s mother’s help in 2016; and (c) the victim could sufficiently understand the circumstances in which the victim filed the complaint after about 12 years passed since the occurrence of each of the instant crimes.

(d) The process to specify the damaged place;

The victim, who was raped by the defendant, was unable to memory the accurate name of the building where the victim was sexually raped by the defendant, but the location of the building was accurately memoryd, and was specified through the Internet guidance, etc. during the investigation process, stairs of ‘Kel', ‘M building', and the second floor bowling of the L building.

In light of the fact that the Defendant’s wife and children in this court claim that the Defendant’s wife and children are the motherel frequently used by the Defendant when they come to L in order to meet the Defendant, and that the Defendant recognized the fact that the Defendant met with I and the victim, from the stairs going to the second floor bowling of the M building or the second floor bowling of the L building, it is difficult to view that the victim was falsely identified the place where the damage occurred.

E. The victim has no motive to mislead the defendant

In addition to the defendant, her mother recognized that her mother had two or more internal sons, and her mother left the victim in the place where her internal son was living together, but among them, her mother stated that the defendant was rape and indecent act by compulsion by force by specifying the defendant.

In light of these circumstances, it is difficult to view that the victim was frightening to the defendant solely on the ground that the defendant was in an internal relationship with I.

In addition, it is difficult to view that the victim thought that her parents were divorced due to the defendant, and that the victim her parents were either tending or exaggerationd the fact of sexual assault damage in order to raise about 12 years old, the victim's child was likely to have been divorced by her parents.

F. Contrary to the Defendant’s statement

The defendant asserts that there is no fact between I and the victim, and in particular, "Kel" in this law is a place where the defendant's wife and children are accommodated together in the case where the defendant's wife and children find the defendant, so it is no longer a place where the victim and the victim do not move together.

However, at the time of the protocol of interrogation prepared by the prosecution on February 2, 2017, the prosecutor asked the defendant that "it is necessary for the prosecutor to ask the defendant that the place of rape and similar rape in K building is called "I do not have any bits between them", and the defendant gives the answer that "I do not have any bits among them." (Evidence No. 284) In this court, the victim's second mother's statement is contradictory to the above argument in this court, and the victim's second mother's statement that "I are fit between the victim and the defendant and the victim's family living in the house where the victim's family was living in the victim's family at around 2004 and the victim's family." In light of the fact that the victim's statement that "I are fit between the victim and the victim's mother and the victim's family living in the mother's family," it is difficult to accurately believe that the above defendant's statement is 'the defendant'.

The scope of applicable sentences under the law of the grounds for sentencing: The scope of recommended sentences from five years to June 22: The sentencing guidelines are not set with respect to violations of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof.

The actual circumstances which are unfavorable to the determination of sentence.

The Defendant denied each of the instant crimes, and did not comply with any measure to recover damage to the victim, etc.

The victims suffered from severe sexual humiliation and mental impulses even until about 12 years have passed since rape and indecent act by force from the Defendant on the age of 10, the victims suffered from severe sexual humiliation and mental impulses, have experienced difficulties in forming sound sexual values, and wanting to have severe punishment against the Defendant.

◎ 유리한 정상

The Defendant, who had no record of criminal punishment for sexual assault crimes, shall comprehensively take into account all the sentencing factors expressed in the trial process of the instant case, including the Defendant’s age, character and conduct, motive and means of the crime, and circumstances after the crime, as ordered.

The presiding judge, judge and chief offender;

Judges Kim Gin-soo

Judges flooded Jins