아동ㆍ청소년의성보호에관한법률위반(강간등)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
However, for five years from the date this judgment becomes final and conclusive.
1. The lower court’s sentencing (five years of suspended sentence for three years of imprisonment, probation, and lecture attendance order for three years of probation, 120 hours of imprisonment) against the Defendant and the person subject to a request to attach an attachment order (hereinafter “Defendant”) is deemed unfair and unfair, and it is also unreasonable for the lower court to dismiss the prosecutor’s request to attach an attachment order.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for appeal by the ex officio judgment prosecutor.
Of the facts charged in the instant case, the summary of the violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, Etc. among the facts charged is that “the Defendant repeatedly reached the victim D (the age of 16) with a text message creating fear or apprehensions, such as the statement in the attached list of crimes, from August 10, 2013 to August 15:14, 2013.”
The above facts charged are crimes falling under Articles 74(1)3 and 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and cannot be prosecuted against the victim’s intent specifically manifested pursuant to Article 74(2) of the above Act. According to the records, the victim can have withdrawn his/her wish to punish the defendant on January 16, 2014, which is after the prosecution of this case. Thus, this part of the indictment should be dismissed pursuant to Article 327 subparag. 6 of the Criminal Procedure Act.
Nevertheless, the judgment of the court below which convicted this part of the facts charged is erroneous in misconception of facts or misapprehension of legal principles.
B. As the scope of reversal and the remaining criminal facts constitute concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below shall be reversed ex officio in its entirety.
3. In conclusion, the judgment of the court below has a ground for reversal ex officio. Thus, Article 364 (2) of the Criminal Procedure Act is applied without examining the prosecutor's grounds for appeal.