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(영문) 서울고등법원 2015.02.04 2014노2688

아동복지법위반등

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Reasons

1. Summary of grounds for appeal;

A. In light of the rules of evidence, “The police statement of H” in violation of the rules of evidence does not consent to the defendant as evidence, and even though H did not have admitted the authenticity in the court, the court below erred by finding the above police statement as evidence of guilt without admissibility.

B. The Defendant did not instruct the victims of mistake of facts to have sexual intercourse as stated in paragraph (2) of the facts charged in the instant case.

C. In light of the legal principle, even though the Defendant instructed the victims to leave the scene of sexual intercourse, but the victims have retired from the position of the victims, there is no commencement of the commission, and thus no indecent act by compulsion is established. 2) The act of causing the F to prompt the chest of E cannot be deemed as indecent act by compulsion against the F, and this constitutes double indictment of indecent act by compulsion against E.

Although the victims of unfair sentencing express their intention not to want punishment of the defendant, the court below did not recognize it and the sentence imposed on the defendant is too unreasonable.

2. Determination

A. Prior to the judgment on the grounds for appeal ex officio, the case is examined ex officio prior to the judgment on the grounds for appeal, and the public prosecutor reaches the trial. ① Of the facts charged in the instant case, Article 2-A

Of the facts charged for the crime against the victim E, the phrase “a person who prompts the victim’s sucks” is to change the phrase “a person who forced the victim under the age of 13 by making the victim’s suck fast with his breasts, thereby committing an indecent act against the victim under the age of 13” into the phrase “a person who commits emotional abuse that may injure the mental health and development of the victim, by setting up a punishment by going outside the door into the door.” The phrase “a person who commits emotional abuse that may injure the mental health and development of the victim,” respectively, and the phrase “the last sentence” is deleted, and the applicable provisions of Article 71(1)1 and Article 17 subparag. 2 of the former Child Welfare Act (Amended by Act No. 11520, Oct. 22, 2012) is to read the phrase “former Child Welfare Act” as “Article 71(1)2 and Article 17 subparag. 2 of the Child Welfare Act. 2 of the Child Welfare Act”