Indecent Acts by force, etc.)

2019Report31 (Consolidated Probation Order)

A

Attorney Choi Byung-su, Kim U.S., Cho Min-tae

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours. The defendant shall be subject to the restriction on employment for three years at institutions, etc. related to children and juveniles and welfare facilities for disabled persons.

The request for probation order of this case is dismissed.

The defendant and the person requesting probation order(hereinafter referred to as the "defendant") are the director of the department of dance at the school B, and the victim C (the 19 years of age) was a student attending the same department at the same school and was in the position of being subject to the protection and supervision of the defendant by receiving an individual course of dance and practical training from the defendant.

The Defendant intending to commit an indecent act against the victim by taking advantage of the superior position than the victim, such as having a superior influence on dance by acting as a dance worker, an internal secretary, or an instructor, while driving the dance group, while driving the dance group;

1. On April 2015, 2015, the victim mentioned that the victim was subject to the bean p.m. at the time, and provided meals to the victim with the victim, stating that "Korea-do Audit and Inspection Dob(b)" was "Sab," and then, the victim was inside the personal practice room of the defendant of Yangcheon-gu Seoul Metropolitan Government D 4th floor for about 30 minutes, and refers to the victim's entry and ki in the items of the victim;

2. From April 201 to May 5, 2015, at the practice room described in paragraph 1 of the No.M. 2015, the victim keys over several times when there are other practice students with a job;

3. 2015. 4.경에서 5.경 사이 일자불상 오후경 제1항 기재 연습실 내 탈의실에서 피해자의 뒤에서 피해자를 안고 "옷을 벗기기 힘들다"고 말하면서 피해자의 무용복을 벗긴 다음 손으로 피해자의 가슴을 만지고 혀로 피해자의 몸을 핥고, 계속하여 피해자가 무용복을 입고 탈의실에서 나와 위 연습실 홀에서 발레용 바를 이용하여 몸을 풀자 피해자의 무용복을 벗긴 다음 피해자를 껴안고 혀로 피해자의 몸을 핥고,

4. 2015. 4.경에서 5.경 사이 일자불상 오후경 제1항 기재 연습실에서, 피해자와 같이 연습을 하던 고등학생들이 무용대회 참석을 하기 위해 자리를 비운 사이 그곳에 있는 매트와 이불을 바닥에 깐 후 피해자를 눕히고 피해자에게 키스를 하고, 피해자의 옷을 벗기고 피해자의 몸 전체를 혀로 핥으면서 피해자의 배 위로 올라간 뒤 자신의 바지를 벗고 성기를 꺼내어 "아, 이게 들어가야 되는데..."라고 말하면서 자신의 성기를 피해자의 음부에 삽입하려고 시도하였다.

Accordingly, the Defendant committed an indecent act by force against the victim under his/her protection and supervision due to his/her duties, employment, or other relationship four times.

Summary of Evidence

1. Each legal statement of witness C, E, and F (part);

1. Statement made by C of a witness in the second protocol of the trial of this Court, which is the case before transfer or consolidation, 2019 high-ranking283 cases;

1. A protocol of examination of part of the defendant by prosecution;

1. Statement to C by the police;

1. A report on investigation;

1. One CD of a suspect’s telephone content recording file and a transcript;

1. Preparation, reporting, and application of statutes in writing, one CD of a tape recording file, and a tape recording;

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

Article 10(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 12889, Dec. 30, 2014);

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes as stated in paragraph (4) of the same Article with the largest criminal fact in the judgment of the court below (one of the concurrent crimes with the punishment prescribed

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Exemption from an order for disclosure and notification;

In full view of the following facts: (a) Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; (b) the 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 (where there is no criminal history against the defendant; (c) the defendant’s age, character and conduct, environment, relationship with the victim, etc., it is deemed that the registration of personal information of the defendant against the defendant and the completion of sexual assault treatment programs can only prevent recidivism, the defendant’s personal information may not

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (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); 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 Act on Welfare of Persons with Disabilities

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A. The Defendant and the victim are not vertical or high-tensions, and they do not have authority to a degree that the Defendant has an influence on another person’s career. Unlike the private relationship in a public educational institution, the victim merely received an individual teaching from the Defendant and could have a teaching at any time when they want to do so. Therefore, there is no protection and supervision relationship with the victim.

B. Although the Defendant thought that it is very close to the victim and made physical contact with the victim during the process of expressing patriotism, all of them were conducted in an atmosphere where it was not strong pressure, and there was no means for the Defendant to exercise force. The victim did not refuse or resist the physical contact with the Defendant, and there was no resistance against the Defendant’s physical contact, and the Defendant thought that it would be allowed by the victim.

2. Determination

(a) Facts of recognition;

According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

(1) Status of the defendant

The Defendant received doctor’s degree in the department of dance at G University, and served as an instructor at various universities and art high schools, such as G University, and operated a dance group as a representative of H dance group. In 2017, the Defendant received the first prize in 2018, and the J has been considerably recognized as non-free and anti-free in modern dance fields (Evidence Records 65, 66, 164, transfer and consolidation (hereinafter referred to as “victim’s first record”)).

(2) The reason why the victim got lessons from the defendant

The victim entered the department of dance in B014, and the defendant first known that he was an instructor and student of the above school, and the victim temporarily closed the above school and found the place where he was to take lessons in order to re-enter the department of dance in other universities, while the defendant's spouse was the spouse of the defendant, who was a dance professor and K professor, who was a professor of the above department of dance and a faculty, was able to learn the dance room from around August 2014 to the above personal practice room operated by the defendant (the victim first Recording was 20 pages).

(3) The occurrence of the instant case and the progress of the case before and after it

(A) The victim received almost every day a dance practice from the defendant in the personal practice room of the defendant. The hours of lessons were three hours every day, and in the case of 2-8 group lessons, not individual lessons, but for one person, a concentrated practice was conducted on the morning, etc. on the day of the competition for one person. The lecture amounting to 200,000 won per month (Evidence No. 67 pages, victim No. 1, victim No. 21 pages). The defendant's personal practice room is a square structure, a rubber floor, and a rubber floor is installed on the wall. The defendant's personal practice room was installed in the old seat. The escape room installed in the Gu seat is string, and is used every time it is string. The defendant's inner part shall be used every time it is 3 hours per day. The victim's 68,685, and the victim's 168,685, and the victim's 285, and the victim's 1985.

B) On April 25, 2015, the victim participated in N, organized by M in the vicinity of the Seocho-gu Seoul Metropolitan L Station, and won the results.

C) On May 18, 2015, the Defendant committed an indecent act against the victim four times as stated in the facts of the crime, including that the victim was aware of the victim and kis in the above individual practice room after 2-3 days have passed from the date of the competition. The victim took part in the Swit Day for the Defendant on May 18, 2015, who took part in the Defendant’s shoulder back from the K professor and taken part in the Defendant’s shoulder, and taken part in the Defendant’s shoulder. (E) The victim took part in the Defendant’s shoulder back from the KMI and took part in the other practice together. (E) The victim took part in the Defendant’s shoulder and took part in the Defendant’s shoulder. The victim took part in the Defendant’s personal practice room around 34 times and took part in the FMI, and the victim took part in the Defendant’s personal practice from 20 to 34 times before the Defendant took part in the phone, and the victim took part in the Defendant’s personal practice.

On June 25, 2015, the victim continued to participate in various workshops, beannat, and various public performances planned by the defendant from July 2017 (the victim's attendance at a private practice room). (The defendant knew that he did not know that he was about the victim's participation in the "2017 P, which was held in Cheongju," and that he was about the victim's participation in the "2017 P, which was held in Cheongju," and the victim was about the victim's success in the "200 K University," and that he was about the victim's participation in the "20 years of counseling," and that he was about the victim's participation in the "20 years of counseling," and that he was about the victim's participation in the "20 years of counseling," and that he was about the victim's participation in the "20 years of counseling," and that he did not know that he was about the victim's participation in the "20 days of counseling," and that he was about the victim's behavior.

The victim asked on October 27, 2018 whether the defendant had sexual assaulted by telephone to E while taking lessons from E, which was a defendant's person and H dance member, for the purpose of transferring into the university, and asked on October 27, 2018 whether he had sexual assaulted by the defendant to E (3 pages of the record of the examination of the witness), and that E had three cases of direct sexual assault (153 pages of the record of evidence);

B. Specific determination

(1) Whether the defendant's act was against the victim's will

Since the crime of indecent act by force on duty is a provision to prevent unjust infringement on another person’s sexual self-determination right, the victim’s prior consent is not established. The consent of the victim should be objectively and externally determined. As such, whether the victim is genuine or not, or the victim’s internal intent and psychological experience cannot depend on the victim’s mental vulnerability, and it should not be determined whether the victim’s sexual self-determination is against the victim’s will, taking into account the victim’s unique emotional vulnerability, easy character, etc.

On the other hand, on the other hand, the victim’s consent or did not reach the exercise of power is not readily concluded solely on the grounds that the victim refused or resisted with the content of the defendant’s defense in this case. Even if the victim appears to have consented, if any circumstance or circumstance exists that makes it difficult for the victim to resist the resistance, it should not be interpreted that there was the consent for the defendant’s act.

In light of this, recognition by the evidence duly adopted and investigated by this Court

In full view of the following circumstances, the victim showed only the appearance that he/she appeared to respond to the defendant's act of recording the criminal facts, and the defendant can be found to have committed the above act against the victim's will. Therefore, the victim's assertion to the effect that the defendant and the defense counsel is against this will not be accepted. In determining the credibility of the victim's statement in support of the facts charged, the court of credibility of the victim's statement shall not only conform to the reasonableness, logic, contradiction, or rule of experience of the contents of the statement itself, but also conforms to the witness's appearance, attitude, penation of the statement, and other circumstances that are difficult to record in the witness examination protocol, including the witness's appearance, appearance, and appearance of the statement, which are open to the public court after being sworn before the judge, shall be evaluated as credibility by directly observing various circumstances that are difficult to record, and where the statements of the victim and the witness are replaced and consistent with the facts charged, it shall not be rejected without permission, unless there is any additional evidence to deem it objectively reliable (see, 2015).

In this case, direct evidence to acknowledge the defendant's crime is practically the victim's statement. In full view of the following facts recognized by the evidence of the judgment, the victim's statement can be trusted.

1) 피해자는 수사기관 및 이 법정(이송 및 병합 전 사건에서의 증인신문절차까지를 포함한다. 이하 피해자의 법정진술에 관해서는 동일하다)에서 '피고인이, ① 피해자가 N에서 수상한 것을 두고 "나한테 감사해라, 밥을 사라"고 하여 피해자가 위 대회일로부터 2~3일이 경과한 날 오전과 오후 사이에 개인연습실 건물 1층에서 밥을 사고 개인연습실에 들어가자마자 약 30분 동안 피해자를 안고 키스를 하였고, ②) 2015. 4.경부터 5.경 사이에 개인연습실에서 피해자와 함께 연습을 하고 있던 연습생이 화장실에 간 사이 피해자에게 키스를 하고 그 연습생이 들어오자 아무 일 없었던 것처럼 행동하였으며, ③ 2015, 4.경부터 5.경 오후 개인연습실 한쪽에 설치되어 있던 좁은 탈의실에서 피해자의 뒤에서 옷을 벗기면서 "옷 벗기기 힘들다"고 말하였고, 피해자의 가슴을 만지고 혀로 핥았으며, 이후 피해자가 발레용 바에서 몸을 풀자 피해자의 상의를 벗기고 몸을 만지며 혀로 핥았고, 피해자가 눈물을 보이며 "그만 좀 하시면 안돼요?" 라고 말하였음에도 피고인은 계속 키스를 하고 몸을 혀로 핥았으며, ④ 2015. 4.경부터 5.경 사이 고등학생 대회일에 피고인이 그날 대회 참가자가 아닌 피해자를 불러내어 08:00경부터 고등학생들의 작품을 봐주도록 하다가 10:00경 대회에 맞춰 고등학생들을 내보낸 후 개인연습실 내에 있는 매트와 이불을 바닥에 깔고 피해자를 눕혀 키스를 하고 혀로 피해자의 몸을 핥으면서 옷을 다 벗겼으며, 피고인이 하의를 풀고 피해자의 배위에 올라타 자신의 성기를 꺼내어 "아, 이게 들어가야 되는데..."라고 하면서 삽입을 몇 번 시도하다가 포기하였다'라고 판시 각 범죄사실에 부합하는 취지의 진술을 하였다.

There is no particular unreasonable or unreasonable part in each of the above statements or statements itself. In addition, in full view of the victim’s statement form, attitude, and penuation of the statements that were confirmed or inferred at the time of the examination of a witness conducted in this court, the victim does not seem to have made a false or exaggerated statement about the damage.

2) The victim stated specifically and consistently the circumstances at the time of each crime, the behavior and the horses of the defendant, the response of the victim, and the testimony of the victim at the time of the crime. Such statements by the victim contain different distinctive contents [at the time the defendant was off from the clothes of the victim at the private practice room, “at the time the defendant was off from the clothes of the victim,” “at the time the defendant was off from the private practice room,” and “at the point where the level of the indecent act is high, the victim gets out of the clothes,” and “at the point where the victim was able to see it?” The defendant committed an indecent act in the body of the victim as above, and then committed an indecent act in the part of the victim, while leaving the victim’s sexual organ alone, it seems difficult to make a concrete and consistent statement as above.”

3) In this court, the victim stated that the victim would be at a disadvantage if the defendant did not appear in kisa or physical body, or that the victim did not use a strong force or complete force (34 pages of the victim’s first record) and made a statement to the effect that he/she could be deemed disadvantageous to himself/herself.

4) 피해자는 이 사건 각 범행 당시나 이후 자신이 느꼈던 감정이나 심리상태에 관하여, 첫 번째 추행 당시 '피고인이 피해자에게 그럴 것이라고 생각을 했던 적이 단한 번도 없었기 때문에 당황하고 몸이 얼어버렸다'(증거기록 14쪽, 피해자 제1녹취서 5쪽), 세 번째 추행 당시 '옷을 벗기는 동안 계속 무서웠지만 제 꿈이 너무 간절했고, 피고인은 제가 꿈꿔온 무용단의 대표였고, 무용계에서도 입지가 있는 사람이었기 때문에 아무것도 하지 못하였다'(증거기록 15쪽), '피고인이 성기 삽입을 시도한 네 번째 추행 이후 개인연습실에 둘만 있을 때에는 정말로 강간을 당할 것 같아 무서웠다'(증거기록 17쪽, 피해자 제1녹취서 13쪽)는 취지로 생생하게 진술하였다.

5) The defendant and his defense counsel asserted that the victim's statement is difficult to believe because the victim's date and time of each of the crimes in this case or before and after it was unable to properly memory the situation. However, as seen earlier, the victim's statement about the contents of each of the crimes in this case is specific and consistent, and the victim's statement about the date and time of each of the crimes in this case is not clearly made. The victim's statement about the date and time of each of the crimes in this case has passed a considerable time since the victim was damaged. From April to May 2015, it seems that the victim was committed an indecent act several times from the defendant during the period from April to May 201, and the time and time of each crime cannot be memory in detail. The victim's statement is relatively specific. However, it is based on the information after confirming the details of the credit card settlement at the time of the crime, and it cannot be said that the victim's statement clearly became clear compared to the investigation agency without any specific reason. Thus, the credibility of the victim's statement cannot be rejected.

Various circumstances supporting the credibility of the victim's statement in the

1) When the Defendant repeatedly commits an indecent act against the Defendant, the victim appears to have requested assistance by having the Defendant know of his or her indecent act against himself or herself (34 pages of the victim’s reading reading). “The victim forcedly kiss down, kis off his or her chest, kis off his or her clothes, and committed an indecent act by committing an indecent act by committing an act.” (Evidence Record 98 pages) is consistent with the victim’s investigative agency and this court’s statement. Since the Defendant again found the Defendant’s personal practice room, it appears that the Defendant did not commit any indecent act against him or her (the victim’s reading record No. 16, the record No. 17, the witness interrogation page), and that the Defendant’s stopping was aware of the fact other than the victim’s own criminal act.”

In addition, the fact that the victim took a personal practice room of the defendant and took the victim's sexual assault to E while taking lessons from E in order to be incorporated into the university is as mentioned in the above (b) (3) and the purport of the above (h) is that E means that "the person who told the victim to have suffered damage from the defendant while speaking to the victim at this time is the third (the fourth)" is "The fact that the victim made a telephone call with E, such as the above (b) (3) of the evidence record 153 pages, is to prepare evidence by recording the content that he had previously taken.

2) Telephone call of the victim and the defendant

On March 8, 2018, the injured party included Q2 camp in Q2018, and on his phone, the accused made an objection against the Defendant regarding the past indecent act such as "I am son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son'.

After the victim mentioned above to the defendant, the victim was found to find a G University Counseling Center in 2018 and consulted about his indecent act from the defendant in the past and the defendant, who is the perpetrator, as an instructor, and the school took measures to prevent the defendant from entering the school on the grounds that the victim's statement was credibility on the grounds that the victim's statement was specific (as stated in the record 91 pages). The victim sought psychological counseling from the hospital around September 2018 and filed a complaint with the investigative agency. According to the above circumstances, the victim's complaint after the lapse of a certain time is natural, and there is no doubt about the circumstance that the victim filed the complaint against the defendant. The details of the statement made by the defendant cannot be found.

1) The statements made by the police and the prosecutor’s office on April 25, 2015 with regard to the fact that the Defendant had made physical contact with the victim since N that was hosted by M on April 25, 2015, are consistent, but the police and the prosecutor’s office with regard to the frequency of physical contact with the victim, circumstances, and contents are not consistent (Evidence Records 69 through 70 pages, 168 through 169 pages). Meanwhile, the victim clearly stated that there was no enemy who had committed an indecent act by the Defendant prior to the said competition (the victim’s first record 31 pages).

2) The Defendant also does not completely deny the fact that he made the physical contact with the victim. However, there are parts different from the victim’s statement in the time of physical contact, circumstances, and contents, and the victim also has the same four times as the criminal facts in the judgment that he/she accurately memorys the victim’s indecent act by the Defendant, and the victim’s failure to properly memory is more likely (Evidence No. 13 and Reading No. 14). In light of the fact that the case of physical contact that the Defendant stated differently from the victim is likely to fall under the case where the victim is unable to properly memory, and that the Defendant also could not properly memory the case with the lapse of time, even if the physical contact as stated by the Defendant was actually made, it is incompatible with the victim’s statement or difficult to believe the victim’s statement.

(E) Determination on the psychological condition and response of the victim

① At the time of each of the instant crimes, the victim stated that, as seen above (A) 4, the victim made a biological statement about the emotional or psychological condition that she was sworn after the commission of each of the instant crimes, and that at the time of the third indecent act, the victim made a statement to the Defendant that “after her time, she was flick?” The victim stated that at the time of the instant indecent act, the victim made it difficult to resist or resist the Defendant more actively during a repeated indecent act by the victim, such as the strike caused by his position in modern dance and the concern that the victim’s family shock would be shock. However, if the victim was aware of the occurrence of the instant crime, it appears that he did not return to the victim’s injury, and that he could continue dance (8 through 9 pages of the first reading of the victim, and the victim’s second recorded 15 pages). Therefore, it would not have been easy for the victim to resist or resist more actively during his indecent act.

② The victims of sexual assault are bound to appear differently depending on the victim’s sexual intercourse, relationship with the perpetrator, and specific circumstances. Even if the victims participated in the strike after the instant case and take the pictures of the Defendant or participated in various performances, etc. planned by the Defendant, this can be seen as acting on the surface in order to prevent sexual assault damage and continue to enjoy dancing with the Defendant’s act, and it was difficult to easily refuse the Defendant’s request for participation in the public performance (35 pages of victim 1 record). Meanwhile, although the victim took the Defendant’s personal practice room by December 2, 2016, the number of times was significantly decreased compared to that of the crime, and the victim appeared to have been near the Defendant, such as the victim’s practice, and the victim appeared to have been aware through the victim’s personal appraisal (37).

③ The victim, even before her indecent act was committed by the Defendant, wanting to be the same as that of the Defendant’s husband and wife (the victim’s first record and 23 pages). Even after her indecent act, it appears that there was no change in respect to K professor’s respect (the victim’s first record and 36 pages). However, around July 2017, the victim knew of damage to K professor under the same circumstances as the above (b)(3)(g). However, although K professor knew of the fact that she did not know about her death or her degree of harm, he thought that she did not go beyond her right of influence (the victim’s second record and 16 pages), he did not participate in the public performance planned by the Defendant and did not appear to have been exempted from the Defendant’s influence by entering his school Qirus in the middle of her entrance, and even before her graduation, she seems to have been able to be able to have actively her out the record of his indecent act as stated in the above paragraph 1).

④ On the other hand, F appeared as a witness in this court and heard from the victim about the indecent act, and asked the victim that he would no longer go to the Defendant’s personal practice room, and asked him about that day. The Defendant received text messages, such as “Neman’s Love” sent by the victim from the Defendant’s side, and it was difficult for the victim to cause confusion as it was not unilaterally received from the Defendant. For long time, F stated to the effect that “I would like to know that the victim would have come back to the Defendant’s personal practice room,” and that “I would like to think the victim that I would be fine.”

그러나 이는 F가 피고인의 피해자에 대한 추행 범행을 직접 목격한 것이 아니고, 피고인과 피해자 둘 사이의 관계, 피해자가 당시 처해 있던 상황, 위 문자메시지의 맥락, 의미 등에 관하여 자세히 알지 못하는 상태에서 피해자의 폭로 내용과 표현상 상반되는 듯한 "선생님 사랑해요♡" 등과 같은 피해자의 문자메시지(그러나 사실 이와 같은 문자메시지는 피고인이 추행 이후 피해자에게 "너도 사랑한다고 말해", "너도 하트를 붙여"라고 요구하여 피해자가 어쩔 수 없이 이를 보낸 것으로 보일 뿐이다(증거기록 17 내지 18쪽, 피해자 제1독취서 26쪽, 피해자 제2녹취서 13쪽)와, 피해자가 피해 사실을 털어놓은 지 얼마 지나지 않아 피고인의 개인연습실에 다시 나간 것과 같은 표면적인 사정만을 보고 한 진술로 보이므로, 그것만으로 이 사건 범행이 없었다거나 피해자 진술의 신빙성이 탄핵된다고 볼 수 없다.

⑤ Although the Defendant and his defense counsel asserted that they met the physical contact of the Defendant, such as allowing the victim to have a part of the Defendant’s body or be exempted from clothes, the Defendant and his defense counsel stated that they met the Defendant’s body at the time of the telephone call with the Defendant on March 8, 2018, that “I am son? I am son?? I am am son??? I am am her son?? I am her so far? I am her son? I am her so far? I am her son? I am her son? I am? I am her her son? I am her her son? I am her son? without mentioning all the circumstances consistent with the above purport of the above argument at the time of the above telephone, the Defendant stated that the victim was not actively responding to the Defendant’s body at the time of the instant case, and the victim did not consistently respond to the victim’s physical contact with the Defendant’s act.

(2) Whether the Defendant was in the position of a person protecting or supervising the victim, or not violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the crime of indecent act committed in the occupational position, etc. is committed by deceptive means or by force against a person under his/her protection or supervision due to business, employment or other relationship, and the scope of "person under his/her protection or supervision" is also deemed to include "a person under a situation in which he/she is under his/her protection or supervision" in light of social norms and circumstances, and the spirit of the law to protect the victim from unfairly infringing upon his/her sexual freedom under such circumstances (see, e.g., Supreme Court Decision 74Do1519, Feb. 10, 1976).

In light of the above legal principles, the above facts are deemed to be recognized, and the following circumstances acknowledged by the evidence duly adopted and investigated by this court are considered to be a person in the position of protecting or supervising the victim. Accordingly, this part of the assertion by the defendant and the defense counsel is not acceptable.

① From August 2014, the victim received dances from the Defendant in the personal practice room from the Defendant to enter another school. The victim paid 200,000 won per month in return. Through this, the victim may be deemed to have a de facto teaching contract for dances.

Therefore, the Defendant is obligated to guide, protect, or supervise the victims who are students based on the above relationship, while the victims are subject to protection or supervision by the Defendant (see Supreme Court Decision 2007Da40437, Jan. 17, 2008, which held that the founder and operator of a private teaching institute or the operator of a private teaching institute in charge of private education, like teachers in charge of public education, are obligated to protect and supervise the students who take lessons at the private teaching institute concerned).

Although the Defendant asserts that there exists no supervisory relationship because the victim was able to take lessons at any time, as long as the aforementioned relationship has been maintained at the time of the instant case, the victim was able to terminate the relationship at any time, the mere fact that the victim was able to terminate the relationship does not interfere with the above determination as to the protection and supervisory relation, which serves as the premise of force, and the following circumstances are taken into account: (a) the victim’s situation at the time; (b) the victim’s trust to the Defendant; (c) the atmosphere of dance where a deceptive order exists; and (d) the victim was able to return to the Defendant’s personal practice room after being subjected to indecent act, it cannot be said that the victim was able to take lessons from the Defendant at any time; and (c

2. The Defendant, who had been aware of the victim’s personal history from G University Nos. 1 and had been working for the victim’s school Nos. 2 and 5 times before the victim’s entrance to the University Nos. 1 and 5 times before the victim’s entrance to the University No. 2000. The Defendant had been aware of the victim’s personal history and had no effect on the victim’s life. On the other hand, the Defendant had been working for his own school Nos. 1 and 5 times before the victim’s entrance to the University No. 2005. The Defendant had no record of the victim’s personal history and had no record of his life on the part of the Defendant’s 5th entrance to the University No. 2015. The Defendant had no record of the victim’s personal history and had no record of his life on the part of the Defendant’s 5th entrance to the University No. 2015.

③ Even if the victim received personal contacts, such as text messages, that are close to the Defendant, such as the victim’s reputation issues, housework issues, and personal concerns such as text messages, the victim was 45 years old and 19 years old and 26 years old at the time of the instant case, and the victim thought that he/she did not think that he/she did not have any personal relationship with the Defendant, but did not think that he/she thought that he/she did not have any personal relationship with the Defendant. Moreover, there was no circumstance that the victim thought that he/she did not have any personal identification to the extent that he/she permits the Defendant’s physical contact, such as each criminal fact as indicated in the judgment, even if he/she did not have any relation between the Defendant and the victim’s love relationship at the time of the prosecutor’s investigation, and that the victim did not have any personal identification relationship with the Defendant, i.e., the victim’s testimony that he/she would have any relation with the Defendant, i.e., sexual intercourse with the Defendant.

(3) Whether the defendant committed an indecent act against the victim by force

In the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act on the Abuse of Occupational Authority, etc.), power refers to a force sufficient to suppress the victim's free will. Since it is not tangible or intangible, it is possible to use the social, economic, political status or authority as well as assault and intimidation, and it is also possible to use the social, economic and political status or authority. In this case, the force in question includes cases where the act of force itself is recognized as an indecent act. It is not necessary not to require that the victim's free will will be practically threatened (see, e.g., Supreme Court Decision 97Do2506, Jan. 23, 1998)

In addition, whether the perpetrator committed an indecent act by force should be determined by comprehensively taking into account various circumstances, such as the place where the crime was committed, the circumstances at the time of the crime, the specific process and mode of the act committed against the victim, the degree of repetition and aggressiveness of the act, the changes following the passage of time, the age of the victim, the relationship between the perpetrator and the victim prior to the act and the changes in the relationship occurring during the period in which the act continues (see, e.g., Supreme Court Decision 2011Do7164, 2011Do124, Jan. 16, 2013). Where the perpetrator’s act does not occur in the victim’s private area (n-off-off-off-off, private sector, private sector), rather than in the victim’s private area (n-off-off, private sector, private sector) where the offender’s right to protect or supervise the victim was created, or where the perpetrator’s act does not appear to have been committed during the time or at a certain place where the perpetrator was led by another person.

위 법리에 비추어 보건대, 이 법원이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 범행 당시의 구체적인 상황 등 제반 사정을 종합하여 보면, 피고인은 피해자가 피고인의 현대무용계에서의 지위 등으로 인하여 적극적으로 저항하지 못하는 상태에 있음을 알고도 이를 이용해 애정 표현을 빙자하여 피해자를 추행하였다.고 할 것이다. 따라서 피고인 및 변호인의 이 부분 관련 주장 역시 받아들일 수 없다. ① 피해자가 피고인으로부터 추행을 당하는 도중에 "선생님 그만 좀 하시면 안돼 요?"라고 거부 의사를 밝힌 적이 있어 당시 피해자의 자유의사가 완전히 제압된 것은 아니라고 볼 만한 사정이 일부 존재한다고 하더라도, '위력'은 피해자의 자유의사가 현실적으로 제압될 것까지를 요하지는 않으므로 위와 같은 사정은 이 사건 범행의 성립에 영향을 미치지 않고, 피고인이 N 이후 피해자의 수상을 빌미로 함께 식사를 마친 후 피해자가 피고인의 개인연습실에 들어오자마자 피고인과 피해자 둘만 있는 상황에서 갑작스럽게 피해자를 안고 키스를 하거나, 역시 피고인과 둘만 있어 피해자가 주위에 도움을 요청할 수 없는 상황에서 피해자의 옷을 벗기고 몸을 핥거나, 성기 삽입을 시도하는 등의 행위는 그 자체가 위력에 의한 추행행위에 해당한다고 할 것이다.

The defendant's act is not an indecent act in a situation where the victim could have predicted his body contact by creating an atmosphere for skin with the victim, but rather a situation where only the victim has been placed with the victim without any prior notice. The place is also that the defendant's personal practice director was in the area of authority where the defendant's protection against the victim and the status of supervisor was formed. If we look at this point, it can be sufficiently recognized that the above act of the defendant is by force.

② It seems that the Defendant did not seem to have exercised direct assault or intimidation against the victim, or had expressed any disadvantage if the victim does not have to do so.

However, even if the circumstances leading up to the Defendant’s indecent act are identical, the requirements for the establishment of a crime are more relaxed than the crime of indecent act by force since the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the crime of indecent act committed in the occupational position, etc. is likely to be protected, supervised by a ward in a supervisory relationship, or by a supervisor’s exercise of force or force at a low level. In other words, if the Defendant committed an indecent act by using his/her status or authority against a victim in a supervisory relationship with the victim, by recognizing the situation in which his/her demand cannot be readily refused due to the Defendant’s status, etc. using trust relationship with the victim, and by committing an indecent act against the victim, it constitutes the exercise of force determined by the above crime by infringing the victim’s sexual freedom.

Even though the Defendant did not explicitly or explicitly state that he would use or threaten the victim to exercise his social, economic status or right, the control and control over the victim formed by authority due to the protection and supervisory relations is always and also threatening the victim. If the Defendant and the victim were not in the relationship, the act such as the statement of the criminal facts against the Defendant’s victim would not have been entirely possible. The Defendant is deemed to have violated the victim’s private sector beyond the remainder of the abuse of the occupational authority against the victim given in the position of modern dance line, dance group operator, instructor, or teaching instructor.

1. The grounds for sentencing: Imprisonment with prison labor for one month to three years;

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

The sentencing criteria are not set.

3. Determination of sentence;

[In light of the circumstances and contents of the crime, relationship with the victim, etc., the crime of this case was committed four times in the course of teaching the victim, who is one’s own person and is one’s own person and is one’s own person and is one’s own person and one’s own person and other person’s personal practice, and the nature of the crime is bad in light of the circumstances and contents of the crime, and the relationship with the victim. The victim appears to have been exposed to considerable sexual humiliation and mental impulse. Ultimately, the victim was faced with his blue with respect to dance activities. The victim was under the blue punishment against the Defendant. Nevertheless, the Defendant was denied his own crime by placing the instant case as a blue problem. The Defendant did not take any specific measures against the victim or for the recovery of damage

[I] Part of the crimes committed by the Defendant is relatively strong to the extent of indecent conduct. There is no record of criminal punishment against the Defendant. Family members of the Defendant want to have the Defendant’s preference.

In addition, the defendant's age, character and conduct, environment, family relationship, motive and circumstances of each of the crimes of this case, circumstances after the crime, etc. shall be comprehensively considered and the punishment shall be determined as ordered by the order.

Registration and submission of personal information;

Where a conviction becomes final and conclusive on each crime in the judgment, the Defendant constitutes a person subject to registration of personal information pursuant to Article 3 of the Addenda to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Act No. 14412, Dec. 20, 2016) and 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

Judgment on the Request for Probation Order

1. Summary of request;

In light of the fact that a person who committed a sexual crime as stated in the judgment of the Defendant is at risk of recommitting a sexual crime in light of the status of the Defendant in his modern dance system and adult awareness, etc.

2. Determination

A. “The risk of recommitting a sexual crime” under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely with the possibility of recommitting a sexual crime, and that there is a considerable probability that the person subject to the request for an attachment order may injure the legal peace by committing a sexual crime again in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, including the occupation and environment of the person subject to the request for the attachment order, the criminal conduct prior to the crime, the motive, means, the circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment, since it is a assumptive judgment for the future (see, e.g., Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 201). Such

B. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, such as the statement of a request for a prior investigation and a response to a request, as well as the Defendant’s occupation, character and conduct, environment, means and method of crime, and the circumstances after the crime, it is difficult to readily conclude that the evidence presented by the prosecutor alone is highly probable to injure the Defendant’s legal peace by committing a sexual crime

(1) The defendant has no record of criminal punishment.

② The Defendant committed the instant crime against a specific victim who committed dance for a considerable period, and there is no evidence to acknowledge that the Defendant committed the instant crime against an unspecified number of women.

③ As a result of the evaluation of the degree of rape coverage for the defendant, the average of 2.30 points for male undergraduates (average of 2.39 points) was judged lower than that of male undergraduates (average of 2.39 points). The defendant's risk of recidivism in relation to sex offenses was found to fall under the total of 6 points, and the result of the evaluation of the degree of recidivism risk of Korean sex offenders (K-SORS) was found to fall under the total of 6 points, and the result of the evaluation of the selection of mentally ill persons (PCL-R) was deemed to fall under the intermediate level, and the comprehensive analysis was found to fall under the total of 11 points.

3. Conclusion

Thus, the request for the probation order of this case is dismissed in accordance with Articles 21-8 and 9 (4) 1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

Judge Lee Sung-sung

Judges Lee private-young

Education shall be conducted, and the practical ability shall be improved to enter or transfer to another university (Evidence Record 163 pages).

2) However, each of the statements made by the Defendant and the victim is different during the specific period.