2019 Jeonno21 (combined) An order to attach an electronic device

Attorney Kang Chang-ok

Judgment

A defendant shall be punished by imprisonment for one year.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

The defendant shall be subject to the restriction on employment for each five years at child and juvenile-related institutions, welfare facilities for disabled persons, etc.

The prosecutor's appeal on the part of the judgment below regarding the case of attachment order is dismissed.

A. Defendant

(1) misunderstanding of facts

A) As to the facts constituting the crime of the lower judgment, each indecent act by compulsion as stated in Articles 1, 2, and 3 of the Criminal Act, the Defendant did not have committed any indecent act by force against the victims as stated in this part of the criminal facts (Provided, That the part of the crime of the lower judgment’s Article 3-A of the Criminal Act provides the method of relaxing the pain by asserting the certificate of the ordinary boom, and there is only the fact that the victim sought prior understanding from the victim and obtained prior consent to the victim in order to eliminate the brus, shoulder, and s

B) As to each indecent act by compulsion listed in the lower judgment’s crime Nos. 4 and 5, the Defendant was unable to put the victims’ her mort or her mort to be laid down at the time, and there was no intention of indecent act by compulsion.

2) Unreasonable sentencing

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

(b) Prosecutors;

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Ex officio determination and examination as to the part of the defendant's case and determination as to the grounds for appeal by the defendant

The main sentence of Article 59-3 (1) of the Act on Welfare of Persons with Disabilities (referring to a sexual crime under Article 2 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or a sex offense against a child or juvenile under subparagraph 2 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse) which was amended by Act No. 15904 on December 11, 201 and enforced from June 12, 2019, provides that "where a court declares a sex crime (referring to a sex crime under Article 2 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or a sex offense against a child or juvenile under subparagraph 2 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse)" provides that "where the court declares a sentence of imprisonment or medical treatment and custody by a sex crime (including a summary order), the execution of all or part of the sentence or medical treatment and custody shall be terminated, suspended or exempted (referring to the date on which the sentence becomes final and conclusive)" shall also apply to a person who has committed a sex offense.

The Defendant’s crime constitutes a sex offense committed before the enforcement of the foregoing Act, and at the same time, there was a need to deliberate and decide whether to simultaneously issue an employment restriction order by setting the employment restriction period pursuant to Article 59-3(1) of the Act on Welfare of Persons with Disabilities. Meanwhile, since the employment restriction order in welfare facilities for persons with disabilities is an incidental disposition that is imposed simultaneously with the judgment of a sex offense case, if the Defendant issues an employment restriction order on welfare facilities for persons with disabilities, it shall be reversed even if there is no illegality in the lower judgment. Therefore, the guilty portion of the Defendant

However, even if there are such reasons for ex officio reversal in the guilty part of the judgment of the court below, the defendant's assertion of misunderstanding of facts as to this part is still subject to the judgment of the court of this court.

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

A. The judgment of the court below

The Defendant also asserted to the same effect as the grounds for appeal in this part of the judgment below, and the court below rejected the Defendant’s assertion in detail, with a detailed statement on whether the Defendant’s statement and physical contact within the permissible range of education or discipline, including the credibility of the victims’ statement in Article 2(2) of the judgment of the court below, including the credibility of victims’ statement.

B. Judgment of the court below

1) In light of the contents of the judgment of the court of first instance and the evidence examined by the court of first instance, if there are extenuating circumstances to deem that the first instance judgment on the credibility of the statement made by a witness of the court of first instance was clearly erroneous, or if it is deemed that maintaining the first instance judgment on the credibility of the statement made by a witness of the court of first instance is significantly unfair considering the results of the first instance examination and the results of additional evidence examination conducted by the time the argument of the court of first instance is concluded, the appellate court shall not reverse without permission the first instance judgment solely on the ground that the first instance judgment on the credibility of the statement made by a witness of the court of first instance is different from the judgment of the appellate court (see, e.g., Supreme Court Decisions 2006Do4994, Nov. 24, 2006; 2018Do1748, Jul. 24, 2019).

2) Examining the facts and judgments specifically stated in the judgment of the court below based on the above legal principles, closely after comparing them with the records, the court below's determination that the victims' statements in investigation agencies and the court of the court below acknowledged credibility, and comprehensively considering the evidence duly adopted and examined by the court below including the victims' statements, the court below's determination that the defendant met or contacted the victims' body as stated in each crime in the judgment of the court below is just and sufficiently acceptable, and it is recognized by the evidence duly adopted and investigated by the court below and the court of the trial.

Comprehensively taking account of the following circumstances, the circumstances presented by the defendant and his defense counsel in the statement of reasons for appeal, etc. are difficult to view as special or reasonable to the extent that the court below directly observe the procedures for the examination of the victims in the course of the examination of the witness, and recognized the credibility and value of evidence of the statement, and thereby, can reverse the judgment by recognizing the credibility and value of evidence of the statement. Furthermore, there is no new objective reason to view that the court below’s determination of evidence was clearly erroneous in the process of the court’s examination or that the argument leading to the fact-finding is considerably unreasonable for reasons that are contrary to logical and empirical rules.

A) At the time of the investigation agency or the police investigation at high school 2 and 3 years, the victims, who were sufficiently capable of making statements, had consistently and specifically stated the main parts related to the facts of the indecent act by force of this case, such as the time and spatial situation at the time of the instant case, their location and state, the Defendant’s behavior and behavior, the specific form of indecent act, and the Defendant’s behavior and behavior, which had been excessive or unnecessary to some female students, including the Defendant, even though there was no particular physical contact, and the Defendant’s aforementioned behavior and behavior, and the victim’s behavior and behavior corresponding to the Defendant’s behavior, and other female students, including other female students, and the conversation related thereto. The contents of the statement contain very specific and non-specific contents that are difficult to describe without direct experience by the victims, and the circumstances and attitude of the statement and attitude are natural, and the victim’s statements cannot be found to be inconsistent with each other’s objective and objective facts.

B) The instant case is a case in which the Defendant made an oral statement on the physical contact behavior as stated in the facts of the crime Nos. 4 and 5 of the lower judgment, which the Defendant had committed against female students during the club activity, on the container divided into the victim F and E stories, and on which the container was provided, and the police investigation was launched following the date following the date of the survey conducted on the relevant students and female students at the school, and ascertaining specific sexual indecent act damage to the relevant female students and notifying the police. The scope of the victims’ damage or the background leading up to the report is very natural, and the victims made a voluntary statement as to the fact of the damage caused by the victims by the container at the risk of causing the burden between them, and there is no special circumstance or motive to suspect that the victims made a false statement on the fact that they did not experience.

C) The Defendant asserts that D’s accusation was made against the Defendant by taking advantage of another student’s report while having a good appraisal due to frequent dispute with the Defendant due to school life. However, it is difficult to deem D to have stated the fact of damage that D was false or exaggerated in light of the fact that D did not have any damage at the time of the survey conducted by the school, and that D was present at the investigative agency after the fact of damage was revealed through another victim’s statement, and that when the Defendant was investigated by the first investigative agency, it stated that D was a more-friendly relationship with D in relation to the relationship with D.

라) 또한 피고인은 당심 증인 Z, AA의 진술에 비추어 피고인이 평소에 여학생들과 대화를 하면서 신체접촉을 주의해 온 사실이 인정되므로 피해자들에게도 추행행위를 하였을 리가 없고, 목격자가 없는 이상 피해자들의 진술을 그대로 믿을 수도 없으며, 피고인의 한쪽 팔이 불편하여 두 손으로 피해자들에게 추행행위를 할 수도 없다고 주장한다. 그러나 피해자들이 수사기관에서부터 '피고인이 자신과 친한 몇몇 학생들에게만 고르듯이 집중적으로 신체접촉을 해 왔고, 대화 도중 순간적으로 신체 접촉을 해 와서 다른 친구들이 목격한 경우가 드물다' 라는 취지로 진술하고 있는 점, 피고인의 이 사건 각 범행은 대체로 기습적으로 행해졌고, 수 초 안에 종료된 순간적인 동작으로 보이는 점, 피고인을 특별히 주의하지 않는 이상 대다수 학생들로서는 평소 학교생활을 하면서 피고인의 행동을 주시하고 있었을 여지도 없는 점, 당심 증인 Z, AA 역시 '피고인이 피해자들을 강제로 추행한 사실이 있었는지' 여부에 대하여는 알지 못한다는 취지로 진술한 점, 이 사건 각 범행이 기습적이어서 큰 유형력의 행사를 필요로 하지 않는 이상 피고인의 한쪽 어깨가 불편하다는 사정만으로 이 사건과 같은 추행행위가 불가능하다고 보이지도 않는 점 등에 비추어 보면, 피고인이 주장하는 사정만으로는 피해자들의 피해 진술의 신빙성에 결정적으로 의문을 갖게 하는 정도에 이르지는 못한다. 마) 원심 판시 범죄사실 제4, 5항 기재 강제추행의 점에 관하여도, 원심이 이미 설시한 바와 같이 피고인에게 추행의 고의를 충분히 인정할 수 있다. 엎드린 자세로 흡을 하고 있는 사람의 허리 부위를 베고 누운 상황임에도 1, 2분 동안 이를 의식하지 못하였다는 피고인의 변소 자체가 상식에 비추어 납득하기 어려울 뿐만 아니라, 앞서 피해자 F의 허리 부위를 베고 누웠다가 F이 일어나는 즉시 피고인으로서는 자신이 여학생의 허리 부위를 베고 누워 있었다는 사실을 알아챌 수밖에 없다고 봄이 상당한데도 얼마 지나지 않아 다른 여학생인 E의 엉덩이에 머리를 대고 누웠으면서도 이를 의식하지 못하였다는 피고인의 진술은 오히려 평소 여학생들에 대한 신체 접촉을 거리낌 없이 하여 온 피고인의 평소 행동을 반증할 뿐이다.

3) Therefore, the Defendant’s assertion of mistake is without merit.

4. Determination on the appeal on the part not guilty among the defendant's case

Although the prosecutor stated the scope of appeal in the petition of appeal as the whole of the lower judgment, in the grounds of appeal, he did not submit any grounds for appeal as to the acquittal portion among the accused case, and even if ex officio, there is no ground for reversal of the acquittal portion. Therefore, the prosecutor’s appeal as to the acquittal portion among the accused case is without merit.

5. Judgment on the appeal regarding the part for which a request for attachment order is filed

Meanwhile, as long as a prosecutor filed an appeal against a prosecuted case, the prosecutor is deemed to have filed an appeal regarding the request for attachment order pursuant to Articles 21-8 and 9(8) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Devices Attachment Act”). However, the prosecutor did not submit legitimate grounds for appeal as to the dismissal part of the request for attachment order against the accused among the judgment below, and even on its own initiative, there is no ground to reverse the part of the judgment below regarding the request for attachment order among the judgment below. Therefore, the appeal against the prosecutor’s request for attachment order is groundless.

6. Conclusion

Therefore, the guilty part of the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, since there are grounds for ex officio reversal as seen in paragraph (3). Since the part of acquittal on the grounds related to a single crime cannot be separately determined, the part of the judgment of the court below concerning the defendant's and prosecutor's allegation of unfair sentencing is reversed, and the whole part of the judgment of the court below is reversed, and the prosecutor's appeal as to the part concerning the request for attachment order among the judgment of the court below is without merit, and it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act and Article 35 of the Electronic Device Installation Act

[Discied Reasons for the Judgment: Defendant case part)

Criminal facts and summary of evidence

The criminal facts against the defendant recognized by the court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act (the occupation of indecent acts by children and juveniles, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered favorable to the defendant among the reasons for sentencing);

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

1. Exemption from an order for disclosure and notification;

In full view of the following circumstances: (a) proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the Defendant committed a sexual assault against many victims due to the instant crime; (b) it is difficult to readily conclude that the Defendant has a risk of recidivism due to the absence of the same kind of criminal records prior to the instant crime; (c) the Defendant’s imprisonment with prison labor for the Defendant; (d) personal information registration; and (e) sexual assault treatment protocol; and (e) the Defendant’s age, family environment, social relationship; and (e) other circumstances, such as the Defendant’s age, social benefits that can be achieved by the order of disclosure or notification compared to the disadvantages and anticipated side effects that the Defendant suffers, and the effect of the prevention of sexual assault crimes, etc., it is deemed that there is a special circumstance that the disclosure or notification of the Defendant’s personal information may not be disclosed or notified. Therefore, the Defendant is not ordered to disclose or notify the Defendant’s personal information.

1. The proviso to Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15452, Mar. 13, 2018); the main sentence of 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); Article 2 of the Addenda to the Welfare of Disabled Persons Act (Act No. 15904, Dec. 11, 2018); Article 59-3 (1) main sentence of Article 59-3 (1) of the Welfare of Disabled Persons Act (the content and result of the instant crime; the circumstance before and after the instant crime; the defendant's occupation and environment; the degree of disadvantage and anticipated side effects of the defendant's entry by the employment restriction order; the prevention of sexual assault crimes that may be achieved by the employment restriction order; and the effect of protecting the victims

1. Reasons for sentencing: Imprisonment with prison labor for a period of one year to 22 years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] The general standard of the crime of indecent act by compulsion (subject to the age of 13 or more) on sexual crimes (type 2) by blood relatives / Special indecent act by indecent act by indecent act by compulsion.

[Special Emotional Persons] - Mitigation elements: Where the exercise of tangible power is considerably weak and the degree of indecent act is weak;

- Aggravations: continuous and repeated crimes against multiple victims, crimes committed by persons obligated to report, or employees of protective facilities, etc.

[Recommendation and Scope of Recommendation] Reduction Field, Imprisonment from one year to two years [including indecent acts by deceptive means and force against juveniles (including indecent acts by indecent means and force against juveniles) are included in Category 2, but the upper and lower limit of the scope of sentence shall be reduced to 2/3];

3. Determination of sentence: The crime of the first-year imprisonment is committed by a high school teacher by force the victims by means of using his/her body, such as taking lessons and life guidance opportunities, etc. while the Defendant, as a high school teacher, has a responsibility to safely protect and guide students, and even if his/her body was separated, and thus, is committed. The details and methods, frequency, place, age of the victims, and relationship between the Defendant and the victims;

In light of the above, the Defendant’s crime constitutes a case where a school teacher, who is a person obligated to report a sex offense, commits a sex offense against a juvenile under his/her protection and supervision. In particular, the Defendant committed a crime using personal trust during class hours or hours and time in the school, which is a special protection place, using the personal trust relationship between him/her. In addition, the Defendant appears to have committed a crime ordinarily and repeatedly without having any particular awareness, and the Defendant appears to have committed a crime against his/her own reputation, sense of learning, and sense of sexual shame that he/she would have suffered from the victims due to the Defendant’s crime committed by his/her born, who was believed to have been believed. Nevertheless, the Defendant denied the crime up to the trial, while gathering an application for a sexual assault from the students around the victims openly, or by having the victims attend the court to give testimony of the damage, shows that the Defendant does not entirely violate his/her own criminal act, such as causing secondary damage. In light of the aforementioned circumstances disadvantageous to him/her.

However, the Defendant did not focus on the type of force or indecent act committed by the Defendant in the course of committing the crime of indecent act by compulsion, but the Defendant denies the intent of indecent act, etc., but made a statement that it is against the depth of the part which caused the abduction to some victims. Prior to the instant case, the Defendant did not have any history of punishment for sexual crime, and seems to have accumulated trust relationship with other students except the victim students while living in school for a considerable period of time. It seems that social ties between the Defendant’s family members and the same teachers are good, such as the Defendant’s preference.

Other conditions of sentencing, such as the defendant's age, character and conduct, occupation, family relationship, means and result of the crime, etc., shall be determined as per the order in consideration of various conditions of sentencing.

Registration of Personal Information

If a judgment of conviction becomes final and conclusive on the facts constituting a crime in the judgment, 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 thus is obligated to submit personal information to the competent agency

Parts of innocence

1. Summary of this part of the facts charged

The Defendant, as stated in the facts of the crime No. 3 (B) of the judgment, committed an indecent act against the victim D by force, had the victim’s chestd as her hand.

2. Determination

피해자 D의 진술에 의하더라도 '피고인이 피해자의 배를 쿡쿡 찌르니까 움츠리거나 피하면서 피해자의 가슴이 피고인의 손에 닿았다'라는 것으로서, 그러한 피해자의 진술만으로 피고인이 피해자를 추행하려는 의도로 피해자의 가슴을 만졌다는 점이 합리적인 의심의 여지없이 증명되었다고 보기 어렵고, 달리 이를 인정할 증거가 없다.

3. Conclusion

Therefore, this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it falls under a case where there is no proof of criminal facts, but the facts charged in relation to such a crime are specified in Article 3-f of the Criminal Procedure Act. As long as it is found guilty of a crime in violation of the Act on the Protection

Judge Sok-hee

Judges Kim Young-chul