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(영문) 서울고등법원 2017.02.07 2016노2928

성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Sexual assault against the defendant for forty hours.

Reasons

The summary of the grounds for appeal is as follows: The statement of the victim on the crime provided for in Article 1 of the facts charged is not reliable in light of the following circumstances with respect to Article 1 of the facts charged:

Nevertheless, the judgment of the court below that found this part of the facts charged guilty based on the victim's statement is erroneous.

F (hereinafter referred to as “the instant Baduk teaching school”) counseling room shall be a place where the head, who is the head, of the Baduk teaching school, is used as the head, his wife G is permanently stationed, and the entrance door is installed at the upper end of the entrance, and the inside of the counseling room may be seen from outside.

In addition, the instant Baduk teaching school consists of classrooms and counseling rooms, each entrance is open at all times, and the subjects and outsides of the Baduk teaching school can freely have access.

In light of such environment and structure, the defendant cannot commit any crime like this part of the facts charged at the counseling office.

The defendant, who is an instructor of Baduk, has to respond appropriately to all kinds of circumstances that occur during the break time as well as to the times when Baduk classes are in progress, such as pologity guidance, piracy education, large-scale organization and national guidance, etc., and therefore, he cannot do so.

Even so, it is difficult to understand that the Defendant left a victim who has a Baduk with other students, and if the victim was unable to find a job, other students who had a Baduk with the victim are in the presence of the other students. As such, it is difficult to understand that the Defendant committed a crime identical to this part of the facts charged at the counseling office where the entrance is open.

In addition, even though there is a sect in the counseling room, it is difficult to understand that the defendant committed a crime by leaving the victim up to the floor of the counseling room.

The defendant has a sexual impulse because he has a sexual functional disorder in his old age.