성폭력범죄의처벌등에관한특례법위반(친족관계에의한강제추행)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
However, for a period of four years from the date this judgment becomes final and conclusive.
Summary of Grounds for Appeal
A quasi-incompetent defendant was in a state of weak ability to discern things or make decisions by being drunk at the time of committing each crime under Article 1-2 (b) and (c) of the facts of the judgment of the court below.
With respect to the crime described in paragraph (2) of the crime of mistake of facts in the judgment of the court below, the defendant was aware that the victim's her her her her her her her her her her her her herb who reported a her her her her her her her her her her her her her bb
The punishment imposed by the court below on the defendant (two years and six months of imprisonment) is too unreasonable.
Judgment
According to the evidence duly admitted and examined by the court below as to the claim of mental disability, it is recognized that the defendant was in a state of drinking at the time of committing each of the crimes in paragraphs 1-b and 3 among the crimes in the judgment below.
However, in full view of the circumstances leading up to the instant crime, the means and method of the crime, and the Defendant’s behavior committed before and after the crime, etc., which are acknowledged by each of the above evidence, it is not deemed that the Defendant had the ability to discern things or make decisions under the influence of alcohol at the time of the crime
This part of the defendant's argument of mental disability is without merit.
In regard to the assertion of mistake of facts, an indecent act causes sexual humiliation or aversion to the general public and infringes on the victim’s sexual freedom as an act contrary to good sexual morality. Whether it constitutes such an act shall be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the offender and the victim, circumstances leading to such act, specific circumstances leading to such act, surrounding objective situation, sexual morality, etc.
(see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002). And the establishment of the crime of indecent act by compulsion is established.