아동ㆍ청소년의성보호에관한법률위반(준강간등)
Defendant
All A and prosecutor appeals are dismissed.
1. Summary of grounds for appeal;
A. Defendant A (1) Recognizing the fact that the Defendant committed an indecent act against the victim I, but there was no intention to rape the said victim.
(2) Taking into account the circumstances on the accused of unreasonable sentencing, the sentence imposed by the lower court (one year and four months of imprisonment) is too unreasonable.
B. In light of the circumstances of the prosecutor (defendant B) against the defendant, the punishment imposed by the court below (4 million won of a fine) is too uneased and unreasonable.
2. Determination
A. (1) In determining the assertion of mistake of facts by Defendant A, the intention of the relevant legal doctrine refers to “the perception and intent of the victim on the fact that the victim is in a state of disability or impossibility to resist and is sexual intercourse or indecent act by taking advantage of such state.” In a case where the Defendant denies the intent of rape while recognizing objective facts that had sexual contact with the victim, the fact constituting such subjective element is bound to prove by indirect facts that are relevant to the criminal intent in view of the nature of the object.
What is the indirect facts of considerable relevance should be reasonably determined by the detailed observation or analysis history based on normal empirical rule.
(See Supreme Court Decisions 2001Do2064 Decided March 12, 2002, and 2004Do8780 Decided June 24, 2005, etc.). Meanwhile, the starting time of the crime of quasi-rape refers to the time when the defendant started to engage in conduct to engage in sexual intercourse by taking advantage of the state of mental or physical disorder or the state of failing to resist. Thus, in a case where the defendant, who was divingd, went out of his clothes and tried to put his sexual organ into the part of the victim, but the victim's body was behind his body and the victim seems to have refused to take the part of his sexual organ into the part of the victim, and in a case where he waived to proceed to sexual intercourse any longer, it is already possible to do so.