성폭력범죄의처벌등에관한특례법위반(강간등치상)등
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal are examined.
1. As to the attempted indecent act by fraudulent means or by force (as to the facts charged, Nos. 1, 3, 4, 5, 8 of the crime sight table in paragraph (2)
A. According to the reasoning of the judgment below, the court below held that when the defendant committed an indecent act against the victims by deceiving them as police at the time of the crime in the above crime No. 1, 3, 4, 5, and 8, the court below held that when the defendant committed an indecent act against the victims by deceiving them as police at the time of committing an indecent act against the victims at the time of the crime, it was already commencement of the commission of indecent act by deceptive means or force. Accordingly, the court below found that the above facts charged in each of the above subparagraphs constitute a crime under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter "Sexual Crimes Punishment Act") and the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter "Child and Juveniles Protection Act") due to attempted indecent act by deceptive means or force against the victims.
B. However, the above determination by the court below is difficult to accept for the following reasons.
(1) In the crime of indecent act by a deceptive scheme under the Sexual Violence Punishment Act and the Child and Juvenile Sex Protection Act, the term “defensive act” refers to the act in which an actor misleads the other party with his intent to commit an indecent act, causes the other party to mistake, perceive, or cause the land, and achieves the objective of indecent act by taking advantage of the other party’s physical condition. Here, the term “defensive act” refers to misconceptions, perceptions, and sites of indecent act itself as in the case of an indecent act by taking advantage of treatment or religious consciousness, or in the case of an indecent act by taking advantage of the other party’s awareness, it refers to misconceptions, perception, and sites of other conditions that are not indivisible with