미성년자의제강간등
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal: The court below's imprisonment (two years and six months of imprisonment) is too heavy.
2. Determination
A. Article 2 subparag. 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse defines “children and juveniles” as “persons under the age of 19 (Provided, That a person who faces with January 1 of the year in which he/she reaches the age of 19 is excluded)” and particularly intends to protect children and juveniles, the reason why the aforementioned Act is difficult to exercise the right of full-time self-determination of children and juveniles due to social and cultural constraints, etc., not only is it difficult for children and juveniles to exercise the right of full-time self-determination, but also is difficult to defend themselves from sexual infringement or exploitation due to lack of cognitive, psychological and related resources.
In addition, given that children and juveniles form sexual values and complete sex health, sexual impairment or exploitation of children and juveniles can seriously and continuously affect the pursuit of their mental and physical health and the formation and development of autonomous personality in relation to their performance.
(See Supreme Court en banc Decision 2015Do9436 Decided August 27, 2020). In the case of a minor under the age of 13 who lacks the ability to normally exercise the right to sexual self-determination due to the greater level of mental aesthetic failure, there is no room for the need to protect the minor so as not to be adversely affected in creating and developing the self-regulatory personality related to the outcome due to the distort sexual humiliation or distortness of such minor.
B. In the instant case, the lower court, based on the circumstances favorable to the unfavorable circumstances (such as the harmful effects of each of the instant crimes and the poor quality of the crime) as indicated in its reasoning (the Defendant appears to have committed a crime, and the Defendant appears to have expressed an attitude against himself/herself, and it does not seem to have sexual intercourse with the victim by using active means).