성폭력범죄의처벌등에관한특례법위반(공중밀집장소에서의추행)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of two million won.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s sentence (3 million won in penalty, and 40 hours in order to complete a sexual assault treatment program) is too uneased and unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal by the ex officio judgment.
The appellate court shall judge on the grounds included in the grounds for appeal, but it may decide ex officio on the grounds that adversely affected the judgment (Article 364(1) and (2) of the Criminal Procedure Act). Meanwhile, the grounds for appeal include “when there is any reason to recognize the amount of punishment unreasonable” (Article 361-5 subparag. 15 of the same Act), and the grounds that affect the judgment are not included in the grounds for appeal, but are subject to the appellate court’s trial even if they are not included in the grounds for appeal, and it is not limited that the appellate court may not determine the sentence more favorable to the defendant than the first deliberation sentencing if only the prosecutor appealed.
Therefore, prior to the prosecutor’s judgment on the grounds for appeal that the sentence of the first instance is unfair because the sentence of the first instance is excessive so that it is unfair, the court of appeals may ex officio determine whether there exists any reason to acknowledge that the sentencing is unfair. In the event of such reason, the court of appeals may reverse the first instance judgment and determine and sentence a minor sentence rather than the sentencing of the first instance judgment (Supreme Court Decision 2008Do1092 Decided December 9, 2010). In light of the above legal principles, in this case, health class, Defendant’s mistake is recognized and contradictory, the degree of indecent act in this case is not excessive, the degree of the indecent act in this case is not excessive, the Defendant agreed with the victim at the first instance trial, the Defendant is the first offender, and all the sentencing conditions in the pleading, including the Defendant’s age, sexual behavior, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., the judgment of the court below is too unfair and thus, it cannot be maintained.
3. Conclusion.