The Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act such as Fraudulent Means);

The Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

[Defendant-Appellee] Plaintiff 1 and 3 others

A defendant shall be punished by imprisonment for six years.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Disclosure and notification of information on the accused for five years.

The defendant shall be placed on employment for five years in the institutions related to children and juveniles, etc.

The summary of the judgment on the acquittal shall be publicly announced.

A. Error of mistake

The defendant did not have any similar or indecent act against the victims. Although each statement made by the victims is not reliable, the court below found the victims guilty of the facts charged in this case based only on them, there is an error of misunderstanding of facts.

B. Unreasonable sentencing

The punishment of the court below (five years of imprisonment, etc.) is too unreasonable.

2. Judgment on the defendant's assertion of mistake of facts

A. The part concerning the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts such as Fraudulent Means, etc.) against the victim N (the part concerning the crime No. 2-Ga of the

1) Summary of this part of the facts charged

From March 2013 to February 2015, the Defendant: (a) had B enter a high school; (b) had B enter the Defendant’s residence in Germany; (c) had B enter the Defendant’s residence in Germany; and (d) managed B’s schedule of performance, its profits, prize money, support money, etc.; and (c) protected, supervised, and rear B; and (d) had sexual intercourse with B; (b) the victim (the 15 years old and age 10 at the time of the instant case) was in Seoul; and (c) had the victim (the 15 years old and age 10 at the time of the instant case were in the high school located in Seoul; and (d) had the victim leave the Defendant’s residence in Germany for about one year from March 2014 to February 2015

On March 1, 2014, between 23:00 to 24:00 on the mid-yearly day, the Defendant stated that “the victim’s sexual organ is able to take care of the victim’s sexual organ by hand and tightly, she is able to use the victim’s buckbucks,” and “the victim’s bucks are good.”

2) The judgment of the court below

The court below found the defendant guilty of this part of the facts charged on the ground that the defendant could have committed an indecent act against the victim by force, such as this part of the facts charged, in full view of the facts and circumstances acknowledged by the evidence adopted and examined.

3) Determination of the immediate deliberation

A) Among the evidence regarding this part of the facts charged, the remaining evidence except the victim’s police and the statement in the court of the court below at the trial court at the court below is insufficient to view this part of the facts charged as the evidence supporting the victim’s statement or by itself as the independent probative value. Thus, the victim’s statement is the only direct evidence concerning this part of the facts charged. However, in light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below, it is difficult to recognize the credibility of the victim’s statement concerning this part of the facts charged

(1) 추행의 내용은 피해자 진술의 주요한 부분에 해당하는 것임이 분명한데, 이에 관한 피해자의 진술은 일관성이 없다.가 피해자는 2017. 10, 6. 경찰에서 제1회 조사를 받으면서, 이 부분 사건 당시 피고인이 약 10분 동안 피해자의 성기를 만졌는데, 처음에는 팬티 위로 만지다가 나중에는 팬티 속으로 손을 넣어 만졌고, 처음에는 주물럭거리다가 나중에는 잡고 위아래로 흔들어댔으며, 피해자가 살짝 몸을 돌렸지만 피고인의 손이 떨어지지 않았고, 발기된 성기를 계속 만지다가 어느 순간 손을 떼고는 피해자의 허벅지를 만지면서 "오~ 몸 좋다"라고 말하였다고 진술하였다(증거기록 1권 46, 47쪽). 피해자는 2017. 12. 12. 경찰에서 제3회 조사를 받으면서도, 이 부분 사건 당시 피고인이 피해자의 성기와 허벅지를 주물럭 거렸다고 진술하였다(증거기록 2권 790쪽). 내 그런데 피해자는 원심 법정에서는, 이 부분 사건 당시 피고인이 피해자의 허벅지를 만지면서 "몸 좋네"라고 말한 후, 피해자의 성기 쪽으로 피고인의 손이 올라왔는데, 옷 안으로 손을 넣지는 않았고, 피해자가 손으로 피고인의 손을 쳐내거나 밀자, 피고인이 피해자의 허벅지를 다시 만지다가 잠시 후 나갔다고 진술하였으며(공판기록 1권 162, 163쪽), 다시 경찰 제1회 조사 시의 진술 내용이 사실이고, 피해자가 몸을 뒤 칙여도 피고인의 손이 계속 따라왔다고 진술하였다가, 10분 동안 피고인이 피해자의 성기를 만지다가 나갔는지는 자세히 기억나지 않는다고 진술하였다(공판기록 1권 174, 175쪽).

(C) At the time of this case, the victim made a statement to the court of the trial that the defendant talked with the victim's body while communicating with the victim's body, including bucks and bucks, and that the victim's sexual intercourse did not appear (2, 4, 5, 12 pages of the examination record of the victim's sexual intercourse). At the time of the completion of the examination, the full bench asked the victim's buckbbbbbbbs, and how the defendant got out of the defendant's hand, how the defendant was asked, how the defendant was asked, how the victim was her knick, how the defendant was her knick, how the victim got out of the victim's sexual knick, how the defendant got out of the victim's sexual knick. The victim's kbbbbbbbs did not support the victim's sexual knick, and the victim's sexual knick and the victim's sexual k (17).

(2) When the first investigation is conducted by the police, the victim described the situation at the time of the instant case as shown in Attachment 1 (Evidence No. 63 pages), and described the case as shown in Attachment No. 2 (Evidence No. 2: 801 pages) at the time of the third investigation by the police (Evidence No. 2; Evidence No. 801 pages). The victim’s statement as to the location and attitude of the defendant and the victim is not consistent with the victim’s statement as to what he would be at the time of the instant investigation. The victim made at the time of the first investigation by the police, the victim made at the time of the instant investigation (Evidence No. 1: 45 pages of the Evidence No. 45), and at the time of the police 3rd investigation, the victim made at the time of the first investigation, the victim’s statement that he was 1, BB or C, and the victim’s right to memory (Evidence No. 2792 of the Evidence No. 1, 792 of the lower trial).

(3) At the time of the instant case, there is no consistency in the statements made by the victim on the victim’s uniforms. At the time of the first investigation by the police, the victim stated that he she was suffering from Titius’s own panty panty (Evidence No. 1:46 pages). However, in the lower court’s court, she stated that she was suffering from his/her arms against his/her mouths (No. 162 pages of the trial record).

(4) 피해자가 B 등에게 피해사실을 알렸는지에 관한 피해자의 진술도 일관성이 없거나 0의 진술과 불일치한다. 피해자는 경찰 제1회 조사 시, "처음에는 (B가) 이어폰을 끼고 있어서 몰랐을 수도 있는데 그 후에는 제가 피해사실을 말해 형(문맥상 B를 말하는 것임이 분명하다)도 알았을 겁니다."(증거기록 1권 48쪽), "저희 3명(피해자, B, 0) 이 함께 있을 때마다 교수님에게 당한 피해사례를 서로 이야기하면서 욕도 하고 했습 니다."(증거기록 1권 56쪽)라고 진술하였다가, 원심 법정에서는, B에게 피해사실을 이야기하지 않았다거나 B에게 피해사실을 말했는지 기억나지 않는다고 진술하였다(공판기록 1권 164, 173, 176쪽). 그리고 피해자는 경찰에서부터 당심 법정에 이르기까지, 자신이 이 부분 사건 발생 다음 날 광양에 있던 이에게 전화하여 피해사실을 이야기하였다고 진술하였으나[특히 경찰 제1회 조사 시에는, 자신이 위와 같이 0에게 전화하여 "게이 새끼 때문에 이 집을 빨리 떠나야겠다.", "어젯밤에 자려고 누웠는데 성기를 만졌다.", "이거 경찰을 불러야 되는 게 아닌가."라는 말을 하였다고 진술하였다(증거기록 1권 48, 49쪽)], 이는 원심 및 당심 법정에서, 위와 같은 전화를 받은 사실이 기억나지 않는다고 진술하였다(공판기록 1권 193쪽, 당심의 0에 대한 증인신문 녹취서 11쪽). 나) B는 원심 법정에서, 자신이 2014. 3. 밤에는 피고인이 피해자 쪽으로 몸을 돌려누워있는 것만 보았는데, 평소에도 피고인이 들어와 자신과 피해자 사이에 눕고는 하여, 당시에도 별다르게 생각하지 않았다고 진술하는 등, 2014. 3.경에는 피고인이 피해자를 추행하는 것을 보지 못하였다고 진술하였고, 또한 2017. 8. 전에는 피해자로부터 피고인에게 추행 당하였다는 이야기를 듣지 못하였다고 진술하였다(공판기록 1권 116, 117, 134, 146쪽). 이러한 B의 진술을 비롯하여 검사가 제출한 다른 증거들을 살펴보 아도, 이 부분 공소사실이 합리적인 의심의 여지가 없을 정도로 증명되었다고 보기 어렵다. 그런데도 이 부분 공소사실을 유죄로 인정한 원심판결에는 사실을 오인하여 판결에 영향을 미친 위법이 있다. 피고인의 이 부분 사실오인 주장은 이유 있다.

B. The remainder

1) The judgment of the court below

In full view of the facts and circumstances acknowledged by the evidence adopted and examined, the court below found the victims' credibility of each statement, and found the defendant guilty of this part of the facts charged on the ground that according to the evidence submitted by the prosecutor, including the statements, the defendant could have committed three similar acts by force as stated in the judgment of the court below, committed indecent acts against the victims by using the victim's N's mental disorder or failure to resist, and by force committed indecent acts.

2) Determination of the immediate deliberation

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, the court below's decision on this part is just and acceptable, and there is no error of law of misunderstanding of facts as alleged by the defendant. Accordingly, the defendant's allegation on this part is not acceptable. It is not acceptable to reverse facts. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for a case where the defendant's error of facts is justified. It is so decided as per Disposition by the assent of all participating Justices.

A) As to this part, the victim N andO made a consistent statement with the major parts of the statement in the trial court.

B) Even when considering the materials submitted by the defense counsel of the defendant at the trial, it is difficult to view that the defendant did not have the relevant victim, or that the victims did not receive money from the defendant or made a false statement against the defendant.

C) As to the part of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (defluence, deception, etc.) on October 28, 2014 (the part of the crime No. 1 of the first instance judgment), particularly with respect to the victim B,

(1) Even if the Defendant contributed to a public performance held in BF from 20:00 on the same day, and then returned from 'BD D' camera near the residence in Yongsan-gu, such as the victim's statement, not from 'AE' in 'AE' in Seocho-gu, it is difficult to deem that the Defendant was unable to commit a crime returning home at that time, as long as around 23:30 to 24:00, which is the time the victim stated, is the time of committing the crime. Furthermore, even if the place is indicated by the Defendant, it is difficult to dismiss the credibility of the victim's damage statement by such circumstance alone. The police police and the court of the court of the court below mentioned that the above public performance was terminated, and that the Defendant went to 'BD' camera, such as the victim's statement (Evidence evidence right 25, 425, 134, 337, 334, 334, 34, 334, 34, etc.). of the police record.

(2) From the police consistently, the victim stated that R went to the Incheon House because he left the school (Evidence Nos. 1, 171 et al.), and according to the evidence Nos. 22 (Inquiry of the fact about BE high schools in the deliberation of the party), it is confirmed that R was voluntarily withdrawn on October 28, 2014, which is the date of the case.

(3) The victim consistently stated from the police station that he was only the Defendant and the victim at the time of the instant case. However, according to the records, around October 2014, V resided in the lower court’s residence, and B, N, and R residing in the inside bank, and on October 29, 2014, the following day of the instant case, at B, and N attended the school (Evidence No. 22). However, V stated at the court of the lower court that, although not scam in the court of the lower court, he was able to work outside of this day (No. 1st page 298 of the trial record), N made a statement that he had been scambling at the court of the lower court (no. 10 pages of the record of the examination of the witness) and in light of these circumstances, it is difficult to reject the credibility of the victim’s statement solely based on the aforementioned residential and school attendance situation.

D) With respect to the part on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (the part on the crime No. 2-b of the original judgment) against the victim N,

(1) According to the evidence No. 22, it is confirmed that the victim was absent from school on November 5, 2014 on the day of the instant case, such as the statement.

(2) Meanwhile, according to the evidence Nos. 21-1, 2, and evidence Nos. 23 (the result of an order to submit medical information on the AMF) of the victim, the victim was diagnosed and prescribed as a hepatitis in the AMF at the distance of about 17 minutes from the Defendant’s residence on the day of the instant case at around 09:42. Although the sick person was found to have been infected not by the victim’s personal name, but by the diagnosis, the time of returning to the country after the diagnosis is delayed more than 10:0,00, it is difficult to dismiss the credibility of the victim’s entire statement on the sole basis. Since the victim stated the damaged fact more than 3 years after the occurrence of the instant case, it is likely that the victim might be confused with the name or symptoms of the victim. Moreover, the victim appears to have made a statement at the police around 10:10 p.m., the victim’s right of 100 p.

3. Conclusion

Of the lower judgment, the Defendant’s assertion of mistake on the part concerning the violation of the Act on the Protection of Children and Juveniles against Victims against Sexual Abuse has merit, and the lower court rendered a single sentence by treating this part of the facts charged and the remaining crimes in the lower judgment as concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the lower court’s judgment should be reversed

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again decided as follows after pleading.

[Along with the reasoning of the judgment of the court below, the facts constituting a crime and the summary of the evidence. The facts constituting a crime recognized by this court and the summary of the evidence are as follows: (a) and (2) of the facts constituting a crime in the judgment of the court below, unless the facts constituting a crime in the judgment of the court below are deleted, and the age of the victim N at the time of the case is "15 years of age", and therefore, it is identical to each corresponding column of the court below

Application of Statutes

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

Articles 7(5) and (2)1 (a) of the Act on the Protection of Children and Juveniles against Sexual Abuse) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 7(4) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 299 of the Criminal Act; Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 298 of the Criminal Act on the Protection of Children and Juveniles against Sexual Abuse; and Article 298 of the Criminal Act on the Protection of

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes resulting from the violation of the Act on the Protection of Children and Juveniles from Sexual Abuse (competence of Fraudulent Means, etc.)]

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order for disclosure and notification;

Articles 49(1)1 and 50(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. The reason for sentencing under Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018) lies with the victim B (the male, 17 years old at the time of the instant case) who is a juvenile with sexual intercourse, and led the above victim to sexual intercourse, using these relationships, the above victim N. (the age of 15 at the time of the instant case) was committed by the victim N. (the victim N. (the age of 15 at the time of the instant case), and the victim N. (the victim's mental disorder at the time of the instant crime) committed an indecent act against the victim by taking advantage of the mental disorder or resisting condition, and the victim's physical suffering or indecent act committed by the victim is very unfavorable to the defendant.

In addition to the above circumstances, all the sentencing conditions shown in the arguments of this case, including the defendant's age, character and conduct, environment, family relationship, motive, background, means and consequence of the crime, and the scope of recommended sentencing guidelines according to the sentencing guidelines established by the Supreme Court sentencing committee shall be determined as per the order.

Where a conviction becomes final and conclusive on each crime in the judgment that is a sex offense subject to the registration of personal information, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency pursuant to Article 4

The acquittal portion

The summary of this part of the facts charged is as indicated in Article 2-A(1) and Article 2-2-A(3) of the Criminal Procedure Act, on the same ground as indicated in Article 325 of the Criminal Procedure Act, since this part of the facts charged falls under the case where there is no proof of crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary

Judge Laos' rules

Judges Sung-ju

2) The lower court considered the Defendant’s unfavorable sentencing conditions even when the Defendant embezzled B’s performance revenue, etc.

The circumstances are being investigated separately from the instant case, and thus, are not reflected in the sentencing of the instant case.