Indecent Acts such as Adult Fraudulent Means

2017.Scand 3(Consolidated) An order to attach

A

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours. The request for the attachment order of this case shall be dismissed. Of the facts charged in this case, the defendant shall be acquitted in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against E (Indecent conduct, etc.

The defendant is a teacher of G elementary school in Dongjak-gu Seoul Metropolitan Government F, and the victim H (n, I) is the above school student.

1. The Defendant, at around 15:00, was unable to know the date in the second half of the 2015, she was seated on the part of the Defendant’s Habbbbbbbs, which was put on the Defendant’s Habbbbs in the fourth class of the 5th and fourth grade of the 5th and fourth grade of the 2015.

Accordingly, the Defendant committed an indecent act against a minor under the age of 13 by force.

2. On March 15, 2016, the Defendant: (a) around 15:00, at the class of the second and seventh classes of the second grade of the above school, the victim H was seated on the part of the Defendant’s buckbucket; and (b) the victim’s buck and chest was her buck with her hand.

Accordingly, the Defendant committed an indecent act against a minor under the age of 13 by force.

3. On April 15, 2016, the Defendant: (a) around 15:00, at the class of the second grade and seventh grade of the above school, the victim H was seated on the part of the Defendant’s buckbucket; and (b) the victim h was her son and her chestd by hand.

Accordingly, the Defendant committed an indecent act against a minor under the age of 13 by force.

Summary of Evidence

1. Partial statements of the defendant in the sixth protocol of trial;

1. Statement of the witness J and E in the third and fifth trial records;

1. The statement made by the victim H in the video recording record of the victim H;

1. Application of Acts and subordinate statutes to analyze statements on sexual assault against children and persons with disabilities;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 7(5) and (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the occupation of indecent acts against minors under the age of 13 by force and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2 and 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts such as Minor, etc. under thirteen years of age)]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of the following circumstances: (a) proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the defendant has no criminal record in the same kind; (b) the degree of indecent act is relatively minor; (c) the defendant’s personal information registration and sexual assault treatment program can be expected to some extent to prevent recidivism; and (d) there is no other evidence to acknowledge that the defendant has the recidivism of a sexual crime; and (e) other circumstances such as the profits expected by the disclosure order or notification order of this case and the effectiveness of preventing sex crimes, and disadvantages and anticipated side effects therefrom, the determination of the defendant’s personal information as to the defendant and his/her defense counsel’s assertion

1. Summary of the assertion

A. The facts charged are that the Defendant committed an indecent act against the victim H under the age of 13 by force, and the date and method of the crime is not specified.

B. The Defendant did not sit the victim H in kneee with the intention to commit an indecent act at the time and place stated in each of the facts constituting the crime in the judgment, and was merely knee of the Defendant’s knee as the victim H was faced with the Defendant’s knee. The Defendant’s physical contact was incurred in the process of pushing the victim H or exposing over the victim’s knee, and does not commit an indecent act by force, but did not have any intention to commit an indecent act.

2. Judgment on the unspecified assertion of facts charged

A. The purport of the law that allows the court to specify the facts charged by specifying the time, date, place, and method of a crime is to limit the object of a trial to the court and to facilitate the exercise of the defense right by specifying the scope of the defense of the accused. As such, the facts charged is sufficient if it is stated in the indictment to the extent that the facts constituting the elements of a crime can be identified by comprehensively considering these elements, and even if the date and time of a crime are not specified in the indictment, the entry does not go against the above extent, and if the general indication is inevitable in light of the nature of the crime, and it is deemed that there is no difficulty in exercising the defense right of the accused, the contents of the indictment cannot be deemed as not specified (see Supreme Court Decision 2004Do646, Jan. 14, 2005; 2005Do2003, Jul. 29, 2005).

B. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court in light of the aforementioned legal doctrine, the instant facts charged cannot be deemed as having been specified. The Defendant and the defense counsel’s assertion that the instant indictment procedure was unlawful in violation of the legal provisions is not acceptable.

① In addition to the date and time of the crime, the facts charged in the instant case specify that the Defendant stated the place where the crime was committed, and stated that the Defendant 'the method of committing the crime was laid down on the buckbucks by raising the victim H on the bucks, and that her her her her her her her her her her her her her her her her her her

② The crime indicated in the facts charged was committed in a very intermittent and similar manner over a considerable period of time. It is difficult for the victim H who appears to have not clearly known the meaning of the Defendant’s act, which is the teacher, to require accurate specification of the date and method of the crime beyond the characteristic or outline of each crime. It seems that a somewhat general indication of the date and method of the instant crime is inevitable.

③ In the event that the case occurred, K of professional examiners has a high possibility of causing similar acts in a similar context at least in a few months, and in such a case, adult inquiry also does not make it easy to memory each case separately, and it also presents an opinion that it is very difficult to memory the total frequency and order of the case.

3. Judgment on each of the facts constituting an offense

A. The issues of the instant case and relevant legal principles

The Defendant denies that there was no indecent act against the Victim H by force as indicated in the instant criminal facts since the investigation agency to the point of view. E stated in the court that the Defendant himself/herself does not have any her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her. her her her her her her her her her her her her.

B. The credibility of the victim H’s statement

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, including the above evidence, the victim H’s statement is reliable and the defendant has committed an indecent act against the victim H by force as stated in the judgment.

1) The consistency, accuracy, rationality of the content of the statement itself, and the statements made by the victim H are generally consistent and concrete in major parts, such as the date and time of the crime, the place and circumstances of the crime, and the method of the crime. Among the contents of the victim H’s statement, there is no part that is contradictory or unreasonable in light of the empirical rule, and it is sufficiently reliable to deem it based on the facts directly experienced.

A) Facts constituting the crime Paragraph 1

① As to the period of the crime in this part, the victim H stated that the first sexual assault was conducted at the time of the first sexual assault, 'the fifth year and second year,' 'the fifth year and second year, 'the fifth year and second year,' 'the end of the fifth year and second year, 'the time', 'the time and second year, 'the half year and second year', 'the time and last, 'the half year and second year, 'the half year and the half year, 'the half year', 'the half year and the half year, 'the half year and the half year, 'the half year', 'the half year and the half year, 'the half year and the half year', 'the half year and the half year, 'the half year', 'the half year and the half year, 'the half year and the half year' were specified as the winter, etc., 'the half year and the half year'.

With respect to the place of crime and the background leading up to the place of the crime, the victim H had ‘(al)', the number of 4th 5th 4th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 5th 1st 5th 5th 5th 1st 5th 1st 5th 5th 5th 5th 1st 5th 1st 5th 1st 5th 1st 5th 1st 5th 1st 5th 5th 1st 5th 1st 5th 5th 5th 2nd 4th 5th 1st 5th 2th 2nd 5th 2nd 2nd 3th 2nd 2nd 2nd 2nd 2nd 5th 2nd 2nd 2nd 2nd 3th 2nd 2nd 2nd 2nd 194.

③ 범행 방법과 당시의 느낌 등에 관하여 피해자 H는 '선생님이 그 첫 번째 할 때는 약간 가슴을 닿을락 말락 하다가 약간 닿을, 닿았다 다시 뗀 그 정도여 가지고 선생님 이 실수로, 실수로 나를 닿은 거겠지? 하고 그냥 생각했어요', '저는 선생님 무릎에', '앉아, 그 약간 의자에 앉는 거처럼 그냥 앉아 있었어요', '이렇게 허리 이렇게 뭐라 해야 되지. 이렇게 (오른팔 등 쪽으로 가며) 두르는 거 있잖아요', '이렇게, 이렇게는 아닌 데 (왼팔 구부려서 들며) 이렇게 두르는 거. 이쪽 팔로', '선생님이 저를 안고 있잖아요. 근데 선생님이 저를 이렇게 안고 있는데 선생님이 모르고 (왼손으로 오른쪽 가슴 만지 며) 여기 닿았다고 그냥 저는 그렇게 생각했어요', '선생님이랑 친해지다 보니까 선생님 이 무릎에, 여기 앉으라고 하셔서 그냥 무릎에 앉았어요', '그냥 선생님이랑 얘기하다가 선생님한테 간식 달라고 하니까 무릎, 무릎에 앉아, 그럼 선생님이 줄게, 해서 앉았어 요', '첫 번째부터 다섯 번째까지는 약간 그냥 스치듯이 만졌어요', '만지긴 했는데 만진 다음에 바로 뗐어요', '그니까 제 가슴으로 한다면 (오른손으로 왼쪽 가슴에 살짝 올려 놨다 떼며) 이렇게 닿은 다음에 바로 됐어요. 그니까 손, 떨리는 듯이 하면서 만졌어 요', '첫 번째 들어갈 때는 선생님이 선생님 무릎에 억지로 이렇게 약간 잡아서 앉으라고 해서 앉고, 선생님이 과자 줄 테니까 여기 앉으라고 해서 앉고 했는데 선생님이 약간 가슴에 수전증 있는 사람처럼 벌벌 떨다가 탁 이렇게 닿은 거예요. 다음에 계속 닿아서 선생님이 실수? 실수겠지? 했는데 그냥 과자 이렇게 꺼낼 때 이렇게 해서 숙일 때는 약간 안 보이니까 더 세게 만지고'라고 진술하였다. 이러한 진술은 범행 당시 자세 및 정황(피고인이 피해자 H를 무릎에 앉혔고, 과자를 준다고 했다는 진술 부분), 범행 당시 주관적인 느낌(처음에는 피고인의 실수라고 생각했다고 진술한 부분), 범행 당시 특별하게 기억나는 점(손, 떨리는 듯이 하면서 만졌고, 수전증 있는 사람처럼 벌벌 떨다가 탁 이렇게 닿았다고 진술한 부분)에 대하여 직접 경험한 사람만이 진술할 수 있을 만큼 개별적이고 상세하며, 구체적이고 일관되어 있다.

B) Criminal Paragraph 2

① 피해자 H는 또 다른 성폭행이 언제였냐는 질문에 대하여, '네, 2월에 봄방학이 거든요? 이때가? 그러니까 한 3월쯤인 것 같아요', '근데 제가 그때 선생님 반에 갈 때, 갈 때는 진짜 긴 옷을 입었어요. 약간 제가 3월인가 그때 약간 7부 바지인데 약간 쫄 바지 있잖아요. 그런 쫄바지를 입고 가고 위에는 여기까지 되는 그런 치마인데 여기까지 다 하고 이렇게 하는 치마를 입고 갔는데 근데 너무 추워서 이건 아니다 싶어서 그냥 긴 옷을 입고 갔거든요', '봄이었던 것 같아요, 봄인데 추운 봄 있잖아요. 그게 약간 진짜 추운 뭐, 그냥 봄도 아니고 약간 봄이 오기 전인데 약간 봄인 것 같은 그런 날씨 였어요'라고 진술하여 범행 일시를 2016. 3.로 특정하였다. 그리고 범행 장소는 피고인이 담임을 맡고 있던 2학년 7반이라고 진술하였다.

② With respect to the method of committing the crime and the shotry, etc. at the time, the victim H stated that, as the son was prokne, the son was seated with the son, and the son was kneeed with a little number of breasts, and that the son was feld with the breasts, whether the son was shot, and whether the son was knicking? The son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son? When committing the crime,

③ The statement about this part of the crime committed by the victim H is insufficient to be somewhat detailed and distinctive compared to the statement about the crime at first (Article 1(1) and last (Article 3). However, in light of the fact that the Defendant’s criminal act was repeated by means similar to several times (the victim H stated that the Defendant was damaged 8-9 times in total, including the crime indicated in the crime charged in the judgment in which the prosecution was instituted), it is difficult to expect the victim H, who was a child of 11 years old, to make a statement separately from the details of the remaining crime except for the first and last crime. Therefore, it is difficult to see that the victim H’s statement on this part is false.

C) Criminal Paragraph 3

① 피해자 H는 마지막 범행 일자에 관하여 '4월 정도 된 것 같아요', '2016년'이라고 대답하여 범행 일자를 2016. 4.이라고 특정하였다. 피해자 H는 범행 방법과 당시의 느낌 등에 관하여 '원래 처음에는, 처음 봤을 때는 약간 그냥 선생님이 그냥 무릎에 앉으라고 해서 앉았는데 선생님이 약간 가슴을 스치듯이? 약간 그래서 그냥 아, 이게 그냥 선생님이 이렇게 약간 뒤로 안아서, 허리를 감싸고 안아서 선생님이 실수구나, 하고 그냥 생각했는데, 마지막에는 진짜 약간 찰흙 만지듯이 세게 만져서 아, 이 선생님이 나를 만지는구나, 이렇게 생각하고 그 뒤로는 안 갔어요', '여덟 번째에 가니까 선생님이 약간 도가 지나치게 만지는 것 같은 것이 느껴지는 거예요. 그래서 선생님이 날 만지는 거구나. 이렇게 생각이 들어서 나오고 나서 E한테 그 일을 설명하고 다음에, 안 갔어요', '들어올 때는 선생님이 제가 무릎에 안 앉으려고 했는데 선생님이 저 손, (오른손 팔목 잡으며) 제 손목을 잡고 앉혔어요. 근데 선생님이 약간 가슴을 만지는 것 같아서 선생님이니까 말은 못 하고, 약간 선생님이 허리나 배를 만질 때가 있거든요. 허리나 배는 저 살쪘으니까 그냥 만지지 말라고, 몸을 만지지 말라고 이렇게 얘기하는데도 만지니까 그냥 선생님이 무서우니까 그냥 가만있었는데 선생님이 마지막에 약간 간식을 주셨어요'라고 진술하였다. 이러한 진술은 이전까지 있었던 추행과의 차이점, 피고인의 행위가 성폭력임을 비로소 명확하게 인식하게 된 계기, 범행 전후 상황(마지막에 약간 간식을 주었다는 부분), 범행 당시 특별하게 기억나는 점(허리나 배는 저 살쪘으니까 그냥 만지지 말라고 말하였다는 부분) 등에 있어서 직접 경험한 사람만이 진술할 수 있을 만큼 개별적이고, 상세하다. ③ 나아가 피해자 H는 범행 이후 느낌에 대하여 '수치스럽고 선생님 약간 손을 꺾어 버리고 싶고', '선생님이 오라고 할 때마다 입을, .…(중략)… 그냥 약간 잔인하긴 한데 찢고 싶었어요'라고 진술하였다. 이러한 피해자의 감정은 '피고인이 오라고 하여 무릎에 앉게 되었다', '피고인이 손으로 가슴과 엉덩이 부위를 만졌다'는 피해의 경위와 내용에 비추어 자연스러운 반응으로 볼 수 있다.

2) The circumstances leading to the filing of the report, whether there was motive for false statements, etc.

① 이 사건 범행을 신고하게 된 경위와 관련하여 피해자 H는 '밤은 아니고 한 6시쯤에 E랑 애기를 하면서 놀았는데 제가 먼저 E한테 E야, 나 선생님이 약간 내 가슴이랑 엉덩이를 만지는 것 같아. 이랬더니 E도 나도 선생님이 내 엉덩이 만져, 이렇게 말해서 그럼 우리 가지 말자 이제부터. 근데 엄마한테는 그 선생님이 약간 보복할 수도 있으니까, 제가 말하면, 엄마한테는 말하지 말기로 하고 다음에 그냥 끝났는데', '제가 L한테 피고인 그 사람 때문에 내 인생이 망가졌다고 그 사람이 실제로 나를 죽이지는 않았지만 내 마음 속에서는 그 사람이 나를 몇 번이고 죽였고 내 마음 속에서도 나도 그 선생님을 몇 번이고도 더 죽였다고 약간 이렇게 말했더니. …(중략)… L랑 E가 너 너무 심각하다고 이거 진짜 네 엄마한테 말해야 된다고 그래서 제가, 제가 약간 그래도 그 사람이 약간 저한테 잘해줘서 그래도 그 사람 약간 불쌍하고 나한테 보복할까 봐 두려운, 두렵고 그런데 선생님이 만약에 막 어른 됐을 때도 나 괴롭히면 어떻게 하냐고 그랬더니 그래도 이런 거는 말해야 된다고 했는데 저는 애들한테 약간 놀림거리 될까 무섭고 애들이 약간 저보고 피고인이 쟤 만졌대, 막 이러고 약간 그렇게 놀릴까 봐 무섭고 그래서 그냥, 그런 소문이 날까 봐도 무섭고 학교에 제가 좋아하는 애가 있는데 그 좋아하는 애 귀에 들어갈까 무섭고 그래서 엄마한테 안 말하고 그냥 조용히 입을 안 열고 그랬는데 …(중략)… 애들이 저한테 안 보복한다고, 내가 그러면 지켜준다고 그런 식으로 말해서 그냥 말했어요, 엄마한테'라고 진술하였다.

② At this time, E was aware of only one of the other pets in this Court. However, at that time, the low-fluent dance institute was terminated and was about to play in the H’s house, and at that time, the fluent horse was talking in the ward, and the h’s mother was playing in the room, and the h’s child was playing in the room. The h’s own talk. The h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’s h’.

③ The details of the report made by the victim H are consistent with the statement of the victim E, and it seems sufficiently persuasive in light of the age of the victim H. In addition, as seen earlier, the victim H would have recognized and considered practical problems such as the risk of retaliation resulting from reporting sexual assault damage at the future child level, the risk of retaliation, play forests in the vicinity, and the relationship with the opposite sexual intercourse, which is good. In light of the above, it is difficult to see that the victim H reported the Defendant to an investigative agency on false facts. In particular, the victim H stated that the Defendant’s behavior was perceived as “the first and the last crime was committed.” If the victim made a false statement with his intention, the victim H did not have any awareness that it was an indecent act at the first time in the use of the expression “actual number” and did not have any awareness that it was an indecent act. In addition, it appears that the victim H did not have any influence on all other external materials in this case.

(iii) Other circumstances;

① At the first time, the victim H stated that he was able to see the Defendant’s her life. The her life had a enormous impact on the learning and life in the social space of the school. In particular, the victim H formed a friendly relationship beyond the relationship between the general teacher and the student, such as playing in the classroom of the Defendant several times, and thus, it seems that the interests, patriotism and confidence in the Defendant were more likely to have been perceived compared to the act conducted by the adult who did not know about the physical contact of the Defendant. In light of the above, the victim H believeded that the act of the Defendant was “in fact,” and in fact, the victim H believed that the act of the Defendant was “in fact,” and therefore, the victim H was perceived as a 'indecent act committed by the Defendant’, and even if the victim was aware as a 'indecent act committed by the Defendant’, the victim H appears to have been aware of the credibility of the victim’s statement in light of various surrounding circumstances.

② 피고인은 이 사건 범행이 일어난 장소가 공개된 교실인 점을 고려할 때, 피해자 H이 주장하는 추행이 이루어질 수는 없었다는 취지로 주장한다. 그러나 피고인의 범행은 교사와 제자 사이의 '일반적인 장난'을 가장한 것으로 볼 수 있으므로 공개된 장소라고 하여 범죄사실과 같은 행위가 이루어지기 어렵다고 볼 수는 없다. 판시 각 범죄사실의 구체적인 행위는 피고인이 피해자 H를 무릎에 앉히고 그 밑으로 엉덩이를 만지거나 스치듯이 또는 과자를 꺼내면서 가슴 부분을 만졌다는 것이어서 제3자가 쉽사리 추행 범행을 눈치 챌 수 있다고 보이지도 않는다. 피해자 H 또한 처음에는 피고인의 행위를 단순한 실수라고 인식하기도 하였다. 따라서 범행 장소가 공개된 교실이라는 사정을 이유로 범죄사실과 같은 추행행위가 이루어지기 어렵다고 볼 수는 없다.

③ When the victim H and E were found, the Defendant was frightened by stress and kid away from stress. The Defendant made a false statement solely on the circumstance that the Defendant was frighted and driven away (the circumstance that the Defendant was rejected by the Defendant) that the victim H was sexually aware of his refusal, and that the Defendant’s sexual indecent act against another student was sexually committed by a third party, and the Defendant’s statement was made by exaggeration that it was sexual indecent act against another student. However, in light of the aforementioned circumstances leading up to the report and its process, it appears that the victim H was considered to have been frighted during the report process, and the relationship between the Defendant and the victim H (the class of the Defendant of the species) (the circumstance that the Defendant was frighted by the Defendant’s refusal from the Defendant) cannot be viewed as making a false statement in view of the circumstances that the victim’s sexual indecent act, etc. was affected by the victim H’s report, etc., and the circumstances leading up to such indecent act, etc. in light of the background leading up to the victim H’s report.

(iv)experts’ opinions;

A) At the investigation stage, the expert J analyzed the victim H’s statement in a relatively consistent manner. The time information, spatial information, suspect information and case contents are described in detail to the extent possible, “victim H’s statement refers to the time features causing the case and how there was any day at the time of the occurrence of the case.” At first, there was a subjective or circumstantial reference in the state of the victim H’s statement that he thought the indecent act was the defendant’s actual life, or there was a reference in the situation of the statement, “the victim H was partly expressed that he was unable to accurately memory the situation at the time of the case,” and there was no evidence that appears to be inappropriate in response to the language, knowledge, and emotional distress during the statement. It appears that time information, space information, suspect information and case contents were made based on the investigation manual, and it appears that the victim’s statement was made based on the child’s ability to answer sexual assault, or that there was no doubt that there was a false motive in the investigation process, or that there was no possibility that the victim’s statement was distorted or distorted in the past report.”

B) On the request for the opinion of the court, K used the CBCA to analyze the victim H's statement in relation to the crime paragraph 1. As a result, at least no logical error or an emergency element was found in the statement that is deemed not contaminated by the investigator's guidance, and detailed information and context information was found to the extent that there was no difficulty in understanding how the case commenced. Furthermore, there was also a discovery of detailed information about unique detailed information and content, subjective mental state, and offender's mental condition. Although some of the victim's statements are unlikely to be contaminated by the investigator, the possibility of the victim's actual experience was suggested, even though some of the victim's statements were not discovered, the victim's statement was not found with serious logical contradiction or emergency elements in relation to the crime paragraph 2, and it was not found that the detailed information and context information was frequently discovered in the victim's statement, but it was also necessary to understand that there was a lack of consistency in the victim's statement within the CA based on the specific nature of the case.

4. On the intent of an indecent act

A. The crime of indecent act against a minor under the age of 13 under Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is the legal interest protected by the law in which a child under the age of 13 is "the right to form sexual identity and values without any psychological disability in the absence of any improper sexual stimulation or physical influence from outside." It does not require a subjective motive or objective to stimulate, stimulate, and satisfy sexual desire as a subjective element necessary for the establishment thereof. In addition, the term "act committed in the above crime" is objectively an act contrary to the victim's sexual freedom, which causes the general and average person in the same place as the other party to feel sexual humiliation or aversion, and thus infringes upon the victim's sexual moral sense. Whether it constitutes such a crime shall be determined with careful consideration of the victim's intent, gender, age, relationship before the offender and the victim, circumstances leading to such act, specific behavior, objective circumstances in the surrounding area, and sexual morality in the age (see, e.g., Supreme Court Decision 209Do5794, Feb. 269, 209).

B. As stated in the facts of each crime in the judgment, the Defendant, as stated in the judgment, laid the floor of the victim H on the buckbbbbbbs, caused the victim H to sit on the her top, and caused the victim her her her her her her her her her her her her her her her her chest and chest. In other words, the Defendant appears to have forced the victim her her her her her her her her her her her her her her her her b her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

Reasons for sentencing

1. The scope of punishment by law;

From June to June 22

2. Scope of recommended sentences according to the sentencing criteria;

(a) Basic crimes and concurrent crimes: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts such as deceptions against the minor under thirteen years of age);

[Determination of Type 3] A sex offense subject to the age of 13 as a general standard.

[Special Persons] Crimes in Special Protection Places, Persons Obligated to Report, or Persons Engaged in Protection Facilities

[Special Mitigation] Where the degree of indecent conduct is weak;

[Scope of Recommendation] Aggravation: Imprisonment for 6 years to 9 years

B. Determination of sentence: 6 years to 16 years according to the final sentence standards for multiple crimes (the upper limit of basic crime + the upper limit of 2 crime + 1/2 + 1/3 of the upper limit of 3 crime) 3.

The Defendant, as an elementary school teacher, directed students to form a sound sense of value of sex, and committed an indecent act by taking advantage of his/her position in a position to protect his/her sexual self-determination, with the victim H, who is minor under the age of 13. The Defendant appears to have suffered considerable mental impulse due to the instant crime.

However, the extent of the indecent act committed by the defendant is relatively weak, and there is no record of criminal punishment.

These various circumstances and other factors, comprehensively taking into account the defendant's age, character and conduct, environment, method and circumstances after the crime, and various sentencing conditions shown in the records and pleadings of this case, the punishment shall be determined like the order, by lowering the lower limit of the recommended sentencing criteria.

Judgment on the request for attachment order

1. A summary of the cause of claim;

A person subject to a request for attachment order (hereinafter referred to as the "defendant") has committed a sexual crime against a person under the age of 19 as stated in the judgment of the court, and is likely to recommit a sexual crime, so the person subject to a request for attachment order (hereinafter referred to as the "defendant") is subject to attachment of an electronic tracking device in accordance with Article 5 (1) 3 and 4 of the Act on Probation and Electronic Monitoring

2. Determination

A. Relevant legal principles

The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely on the basis of the possibility of recidivism, and that there is a considerable probability that the person who requested the attachment order may injure the legal peace and peace by committing a sexual crime again in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person who requested the attachment order, the conduct before and after the crime, the motive, means, circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of judgment in the future (see, e.g., Supreme Court Decision 2012Do337, Apr. 26, 2012).

B. In the instant case, comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to readily conclude that the evidence submitted by the prosecutor alone is highly probable to commit a sex crime again beyond the possibility of re-offending.

① As a result of the investigation before the Defendant’s claim, the risk assessment level of a sex offender in Korea (KSORAS) was assessed respectively at the level of 12 points as the total point of 12 points and 11 points of the total point of PC-R as the result of the assessment of the risk of a sex offender in Korea (PCL-R).

(2) The Defendant is an initial offender who has no record of the same kind of crime.

(3) Only a sentence of imprisonment with labor for three years, the registration of personal information, and the completion of a program for treatment of sexual assault for 80 hours against the defendant may expect that the defendant will be effective in preventing recidivism, promoting rehabilitation into society, and correcting his/her character and conduct.

(4) No evidence that may be assessed by the defendant as having high risk of preventing sexual assault against unspecified persons in the future may be verified in the course of recording.

3. Conclusion

Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

Where a conviction becomes final and conclusive on each crime on the judgment that is a sex offense subject to registration and submission of personal information, the accused is a person subject to registration of personal information in accordance with Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and he/she shall submit personal information to the competent agency

The acquittal portion

1. Summary of the facts charged

On April 15, 2016, the Defendant, at around 15:00, was unable to know the date on April 2, 2016, she was seated on the hand floor that the victim E puts on the Defendant’s bucks. The Defendant committed an indecent act against the victim under 13 years of age by force.

2. Determination

A. The facts constituting the elements of a crime prosecuted in a criminal trial are the prosecutor’s burden of proof, and the establishment of facts constituting a crime must be based on strict evidence with probative value, which makes a judge not likely to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to fully reach the extent that such conviction would lead to such conviction, even if the defendant’s assertion or defense is inconsistent or unreasonable, it should be determined in the interests of the defendant. In a case where the victim’s statement that corresponds to the facts charged is practically the sole statement of the victim, in order to find the defendant guilty of the facts charged, the high probative value is required to have sufficient probative value to the extent that there is no room for doubt as to the authenticity and accuracy of the victim’s statement, and when determining whether there is such probative value, the reasonableness, consistency, objective reasonableness, etc. of the victim’s statement should be comprehensively taken into account (see Supreme Court Decision 2011Do16413, May 10, 2012).

B. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court in light of the aforementioned legal doctrine, it is difficult to believe that E’s statement that corresponds to the facts charged in the instant case is difficult, and the evidence presented by the prosecutor alone is insufficient to deem that the above facts charged are proven beyond reasonable doubt

① In the investigative agency, the victim H asked questions about whether the Defendant was witnessed to commit an indecent act in sex, and the victim H askeded to see whether he was able to see the “(spooned in spores).” It is necessary to see that E is only her but her, and this speaks. The evidence corresponding to the facts charged in this case where the Defendant committed an indecent act in sex by force is actually concerned with E’s statement.

② E in this court, considering that H's idea was the same as that of the Defendant's own, and it was so h that Had', 'Had', 'Had', and Had', Had', Had', Had', Had', Had', Had', Had' and Had'd', Had'd', Had'd' and Had'd'd', Had'd'd', Had'd', Had'd', Had'd', Had'd', Had'd', Had'd', Had'd', Had'd', Had'd', Had'd', Had'd's testimony that the Defendant's Had's Had's Had's Had's Had's Had's Had'd'h'h'd'.

③ E does not have a specific, individual, and detailed statement as to the facts of damage in the court. In detail, there is no description other than “knee knee knee kne kne kne kne kne kne kne,” and there is no information more than the case standardized in the statement. In order to find guilty of the facts charged on the basis of the victim’s statement, there is a high probative value required to be sufficient to doubt the authenticity and accuracy of the statement, but E’s statement is limited to what is about the facts of the damage of H rather than the facts of the victim’s damage, and thus, it does not lead to a misunderstanding of the fact that E’s statement was actually experienced, whether physical contact that cannot be evaluated as an indecent act by accepting the statement of the damage of H was committed by sexual indecent act, or whether there was a crime as described in the actual facts charged. Where the prosecutor’s reasonable doubt is sufficiently removed, even if it is acknowledged that the defendant’s appearance of fe kne kn also did not reach a reasonable doubt.

(1) At the investigation stage, the expert J, who analyzed the statements of the victim H, stated in this court that "it is not possible to evaluate credibility of the statements of the victim H", "child was more talked about the experience of her own experience rather than her experience," "it was not able to accurately tell about the experience of her own experience," "no more than 2 and 3 situations were found to have any unique content, and it was not found to have any content." In addition, in the analysis of the statements of sexual assault against children and persons with disabilities, the J did not clearly distinguish the H's experience, which is the child suspected of other victims, and it did not sufficiently indicate that the contents of the case and the contents of her direct witness, the contents of her experience, and the contents of her experience, etc., were not clearly distinguished, so that it could not evaluate consistency, and it could not be evaluated that it was able to have presented some opinions because it did not have any influence on the credibility of the statements."

3. Conclusion

Thus, this part of the facts charged is judged not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime.

Judges Kim Gin-soo

Judges Kim Gin-young