Ulsan Attorney Referral Case | Client Who Received an Ulsan Attorney Referral Obtained a Reduction From Imprisonment to a Fine

The client, who came to a Daeryun attorney through an Ulsan attorney referral, had been sentenced at the first instance to one year of imprisonment on charges of 🔗rape and special aggravated assault.

Believing there were aspects of the case that were unjust, the client felt the term of imprisonment was unwarranted and decided to appeal.

Having received an attorney referral for the appeal, the client came to the Ulsan office of Daeryun Law Firm.

We undertook to assist the client, who came to Daeryun through an Ulsan attorney referral.

Citing the precedents below as support, Daeryun's Ulsan attorney argued that the sentence was unduly heavy in light of the inconsistencies in the victim's statements.

■ Criminal Act Article 297 (Rape)

A person who, through violence or intimidation, rapes another shall be punished by imprisonment for a definite term of at least three years.

▶ In a criminal trial, the burden of proving the charged criminal facts rests with the prosecutor, and a finding of guilt must be based on evidence with probative force sufficient to give the judge a conviction that the charged facts are true beyond a reasonable doubt. Therefore, in the absence of such evidence, even if there is suspicion of the defendant's guilt, the matter must be decided in the defendant's favor. (See Supreme Court Judgment of April 27, 2006, Docket No. 2006Do735, among others.)

▶ Where the defendant consistently and strongly denies the charged facts and the only direct evidence supporting the charges is, in practical terms, the victim's statement, in order to find the charges guilty based solely on the victim's statement, the truthfulness and accuracy of that statement must carry probative force so high as to leave virtually no room for doubt. (See Supreme Court Judgment of May 10, 2012, Docket No. 2011Do16413.)

▶ In the crime of rape, the violence or intimidation must be of a degree that renders the victim's resistance impossible or markedly difficult, and whether the violence or intimidation was of such a degree must be determined by considering all of the circumstances, including not only the content and degree of the violence and intimidation through which physical force was exercised, but also the circumstances leading to the exercise of that force, the relationship with the victim, and the situation at the time of the offense. (See Supreme Court Judgment of June 9, 2000, Docket No. 2000Do1253, among others.)

The client, who received assistance from Daeryun through an Ulsan attorney referral, obtained a reduction to a fine on appeal.

Stating that “it is difficult to prove that the client rendered the victim's resistance impossible by applying force and thereby engaged in the sexual intercourse at issue, and that, where the only direct evidence is the victim's statement and that statement is itself inconsistent and thus lacks credibility,” the court reversed the lower court's sentence of imprisonment and imposed a fine.