2017Do1793 Quasi-rape (a recognized crime: Attempted quasi-rape)

A

Defendant

Attorney X (Korean Office Line)

Attorney N

Seoul High Court Decision 2016No3166 Decided January 13, 2017

May 11, 2017:

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

The grounds of appeal (the supplemental appellate brief not timely filed) are not timely filed.

The grounds of appeal are examined to the extent of supplement in case of statements in the grounds of appeal.

1. The summary of the facts charged in this case against the defendant is as follows.

The Defendant, at around 23:00 on April 17, 2014, the Victim C (M, 18 years of age) and A, a part-time student, at around 23:00.

After completing part-time teaching, the victim, while drinking alcohol together, had the victim enjoy a large amount of alcohol, on April 2014.

18. At around 01:00, 010 the breath of the Defendant’s own exploitation in Dongjak-gu Seoul Metropolitan Government D, resulting in the victim’s breath;

the victim's body, who is in a state without consciousness, is off from the clothes of the victim and is on the part of the victim.

By inserting the sexual organ into the part of the victim, the victim had sexual intercourse with the victim by using the state of impossibility to resist.

(c)

2. On the grounds indicated in its reasoning, the lower court: (a) on the grounds indicated in its reasoning, the victim who lost the mental health of the Defendant.

The defendant tried to have sexual intercourse with the victim by knowing the state of impossibility to resist, but the victim

An offense against the fact that the crime of quasi-rape has been committed by inserting his or her sexual organ into the state;

The first instance judgment convicting the Defendant of the instant facts charged is reversed, deeming that there is no proof of such proof.

Recognizing the guilty of the attempted quasi-rape against the deceased and for the charge of quasi-rape

The lower court acquitted the Defendant.

3. However, the lower court’s conviction is difficult to accept for the following reasons.

(1) Article 299 of the Criminal Act provides that a person shall have sexual intercourse with another person by taking advantage of his or her mental or impossible condition

Rape, similar rape, or indecent act by compulsion of another person who commits an indecent act under Articles 297, 297-2, and 298 of the Criminal Act;

The Criminal Code provides that the state of impossibility to resist shall be punished for the same offense.

297, 297-2, or 298 on a psychological or physical basis due to reasons other than mental or physical injury, in balance with those of the above Articles.

It means cases in which, as a matter of course, it is absolutely impossible or substantially difficult to reflect (Supreme Court)

See Supreme Court Decision 2012Do2631 Decided June 28, 2012

On the other hand, there is no room for a judge to make a reasonable doubt about conviction in a criminal trial.

evidence of probative value that leads to the conviction that the facts charged are true;

As such, even if there is no such evidence, the suspect is suspected to be guilty.

Do Supreme Court Decision 2005Do8675 Decided March 9, 2006 (Supreme Court Decision 2005Do8675 Decided March 9, 2006)

[Reference]

(2) According to the evidence duly adopted and examined by the lower court and the first instance court, the following facts are revealed.

the corporation.

(1) The Defendant, from an investigative agency to the court below, was the victim at the time of the instant case.

The victim was aware that he/she had a food, and he/she is aware that he/she wishes to have a sex relationship.

A statement was made to the effect that the victim was in contact with his body, and in an investigative agency the victim was on the day.

A statement was made that it was the same as an intermediate memory without completely memory.

In the police, seamen shall drink two scamblings from the table of the defendant and the head of the drinking house with two scamblings.

It may be possible to find out how he or she had been in the drinking house without memory from mathn and a few maths.

and after that, the face of the defendant's signal waiting in the crosswalk shall be memory and shall not be memory.

In addition, I stated that the negative part is memory from the following day after the east of the Ampha wave.

② On April 18, 2014, the day of the instant case, the Defendant drinks with the victim on April 18, 2014.

and 02:27:05 on the same day and 02:28:13 on the same day at a convenience store near the drinking house, respectively.

After small settlement was made, the defendant was moved to his own room with the victim. The defendant is from the police station to the police station.

The victim stated that the time of the victim's self-defense was 03:00 around 03:0. The police also stated that the victim was also the victim.

in this chapter, however, it may not be specifically known that the time from the defendant's own exploitation was not confirmed.

03:00 At the time of the statement to the effect that the statement would have been made.

(3) The Defendant, at the time of the instant case, she immediately go from the alcohol house by the investigative agency.

In the situation where the victim was in the convenience store and was in the convenience store, and the victim was in the defendant's own room; and the victim was in the defendant's own room.

The actions of the victim, such as cutting a siren left in a toilet later after subtracting him/her from his/her own, and her circumstances;

Specifically, the defendant's statements are false or false.

Other confirmation procedures have not been conducted.

④ Damage between April 19, 2014 and May 26, 2014 after the occurrence of the instant case

In case of text messages sent to the sender, the intention of the defendant that the defendant is unwritten for the victim is unwritten.

Although the victim is expressed repeatedly at the time of the instant case, there is no awareness of the victim under the influence of alcohol.

It is difficult to find any content directly mentioned as to whether or not.

(5) On April 14, 2014 and the 16th day of the same month, the victim shall drink with the defendant and drink each other on the following day.

At the new wall time, the defendant sleep as the defendant's sleep, and the victim sleep from the police to the 2014.

4.14. In the case of a defendant's self-accompetence under the influence of alcohol while the defendant is in an intermediate memory:

The circumstances of this case are considerably specific memory and statements, and drinking after April 16, 2014.

In relation to the situation, the Defendant was under the influence of alcohol, but stated that all of them are memory.

On April 16, 2014, after drinking the victim and alcohol, the victim settled KRW 40,000 on April 17, 2014.

6. The victim is quasi-rape, etc. (Seoul High Court Law) that occurred on June 2013 before the occurrence of the instant case (Seoul High Court Law)

Won 2014No2880 also became a victim, and the charge of quasi-rape in the above case

The facts charged pertaining to the facts charged between October 6, 2013 and 04:03 by the Defendant of the pertinent case.

The state that the victim is not aware of being drunk and that he/she is unable to resist substantially difficult to resist;

The court, however, made sexual intercourse with the victim once by using those in the above. The above court made sexual intercourse with the victim once.

4. 2. The above defendant was found not guilty, and "victim" was one of the grounds for the judgment of not guilty.

A. The state at the time of alcohol before and after the sex relationship with the defendant does not part of the memory.

Even if the defendant's act of sexual intercourse, etc. was committed when the victim was aware of;

In order to be unable to memory later, a temporary memory witness with his/her taking advantage of his/her taking advantage of his/her taking advantage of his/her taking advantage of

(b) entry of information by lowering the activities of sea cells whose alcohol or alcohol is a temporary memory repository.

The possibility of symptoms is that there is an adverse impact on the interpretation, but the other parts of the brain are normal activities).

The Supreme Court Decision 2015Do5610 ruled that the above decision cannot be ruled out.

On June 24, 2015, the prosecutor's appeal was dismissed and finalized.

7. The victim filed a complaint against the defendant three months after the date of the occurrence of the instant case, and two months from the police station.

After a series of investigations, the victim left the United States. The victim did not undergo an investigation in the prosecution, and the victim did not undergo an investigation:

In the course of investigation, the Defendant and the victim did not undergo a cross-examination. The victim was in the first instance trial.

on February 26, 2015, the victim was adopted as a witness. On February 3, 2015, the victim was immediately after the third preparatory hearing of the first instance court.

entry into the Republic of Korea in 2016 between the agent and the victim

on November 2015, even though the witness had been present as a witness and has promised to communicate again around 2015;

Then, the e-mail sent by the victim's agent after cancelling the existing Handphone number and withdrawing from T;

In the end, the victim did not receive any contact with his agent, and the victim did not receive the case No. 1.

The court and the court below did not attend as a witness.

(3) Comprehensively taking account of the above facts, ① the Defendant was under the influence of alcohol at the time of the instant case.

specifically asserts the actions of the victims who are difficult to be deemed to have been in a state without consciousness;

and among them, the details that can be confirmed through the victim, such as the victim's act of exploitation, etc.

(1) The defendant's assertion is also included in this chapter, and there is a particular ground to believe that such assertion is false.

2. Whether the victim was in a state of no consciousness under the influence of alcohol;

In the instant case where there is insufficient evidence to prove the above circumstances, the Defendant against the victim

In the course of investigation, the accused and the respondent need to be given the opportunity of cross-examination.

In the absence of a piracy, the victim was aware of the fact that he was adopted as a witness.

It causes any contact with the victim's agent without any explanation of any reason.

of the first instance court's refusal to attend the court of first instance, and the defendant's objection against the victim

The opportunity to be examined was lost, ③ the victim was able to drink with the Defendant on April 14, 2014 and April 16, 2014

Then, the circumstances of the defendant's self-defense shall be considerably specific memory and the statement of the defendant

In light of the circumstances, on April 18, 2014, the victim’s consciousness was rendered, barring any special circumstance at the time of the instant case.

Seoul High Court 2014No. 2014No.

In light of the progress of the case No. 2880, the behavior of the defendant in this case is the victim's consciousness.

(2) If the victim was found to have suffered from the loss of his/her temporary memory due to his/her taking

of this case, it is difficult to find out the circumstances such as the possibility of being unable to memory later.

section 1.

(4) Examining these circumstances in light of the aforementioned legal principles, as alleged by the Defendant, the instant case

It can be ruled out that the possibility that the victim could drink to a certain degree, but could have been aware of;

The court below did not have any circumstance or evidence submitted by the prosecutor, and the victim was drunk at the time of the instant case

The fact that there was no consciousness, and the defendant was unable to resist such victim.

With the knowledge of this, it was proved without any reasonable doubt that the victim intended to have sexual intercourse.

shall not be deemed to have been dismissed.

(5) Nevertheless, the lower court did not err by misapprehending the legal doctrine on the Defendant’s ground solely based on its stated reasoning.

The lower court determined that the crime of attempted quasi-rape was recognized. The lower court erred and empirical rules

In violation of the principle of free evaluation of evidence, or failing to resist in the crime of quasi-rape, and criminal materials

The court below erred in the misapprehension of legal principles as to the degree of probative value of evidence for conviction

error affecting the conclusion of the judgment.

(6) Therefore, the guilty part of the judgment of the court below should be reversed, and there is a relation of such a crime.

Since the acquittal portion of reasons also should be reversed, the judgment of the court below should be reversed in its entirety.

4. Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded.

In other words, it is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided by the assent of all participating Justices.

It is so decided as per Disposition.

Justices Park Sang-ok

Justices Kim Jae-tae

Chief Justice Cho Jae-hee