성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)등
Of the judgment of the court below, the guilty part against Defendant A is reversed.
Defendant
A shall be punished by imprisonment with prison labor for three years.
1. Summary of grounds for appeal;
가. 피고 사건 부분 1) 피고인들 가) 피고인 겸 피부착명령 청구자 A의 사실 오인 및 법리 오해 주장 (1) 원심 판시 범죄사실 제 1의 가. 항 및 제 1의 나의 (1), (2) 항 피고인 겸 피부착명령 청구자 A( 이하 ‘ 피고인 A’ 이라 한다) 은 유방암 체크를 한다는 핑계로 피해자의 옷 속으로 손을 넣어 가슴을 만진 적이 없고 입으로 피해자의 가슴을 빤 적도 없다.
Nevertheless, the court below erred by misunderstanding the fact that all of the facts charged are found guilty and thereby affecting the conclusion of the judgment.
(2) Articles 1-B(3) and 1-3 of the facts constituting the crime in the judgment below.
Defendant A, through Defendant B, sufficiently explained the purpose of the victim’s observation and the necessity of treatment of disease, and observed and disinfected the part of the victim with prior consent of the victim.
또 한, 피고인 A은 위 질병 치료 과정에서 피해자의 침을 면봉에 묻혀 화농을 제거하였을 뿐이고 입으로 피해자의 음부를 빤 적은 없다.
Defendant A, even after the lapse of a disease, has observed the victim’s negative details to ascertain the progress of the disease, but such negative observation frequency is considerably limited to three times in total. In full view of the background of treating the victim’s disease, the method of observing and disinfecting the records, and the frequency of observing the records, etc., Defendant A’s act cannot be deemed to constitute “sexual abuse”, which is the element of the crime of violating the Act on the Protection of Children from Sexual Abuse (e.g., indecent act such as deceptive scheme) or the violation of the Child Reinstatement Act (e., sexual harassment against habitually a child).
At the time of 2016, as a high school student of 15 years of age, the victim had sexual values and judgment ability to the extent that he/she can exercise his/her right to sexual self-determination, and Defendant A’s act of observation and disinfection was confirmed.