성폭력범죄의처벌등에관한특례법위반(공중밀집장소에서의추행)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. The main point of the grounds for appeal is that the lower court’s punishment (fines 7,00,000) is too unhued and unreasonable.
2. We examine ex officio prior to the judgment on the grounds for appeal ex officio.
According to Article 11 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the statutory penalty for the crime of indecent act in a densely concentrated place is imprisonment for not more than one year or a fine not exceeding three million won, but a fine for the crime of indecent act under Article 298 of the Criminal Act is a fine not exceeding 10 years or a fine not exceeding 15 million won.
Therefore, in this case where a public prosecution was instituted due to an indecent act at the place of public secrecy, the court's recognition of indecent act without any changes in the indictment is likely to substantially disadvantage the defendant's exercise of defense right.
(See Supreme Court Decision 2008Do2409 Decided September 11, 2008). Therefore, it is unlawful for the lower court to have found the Defendant guilty of indecent acts by force on its own without modification of an indictment. In this respect, the lower court’s judgment was no longer maintained.
3. Accordingly, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor's allegation of unfair sentencing, and the judgment below is again decided as follows through pleading.
[Discied Judgment] The summary of facts constituting an offense and evidence recognized by the court is identical to the description of each corresponding column of the judgment of the court below, thereby citing it as it is in accordance with Article 369 of the Criminal Procedure Act.
Application of Statutes
1. Article 11 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Selection of Fines for Crimes;
1. Articles 70 (1) and 69 (2) of the Criminal Act for the detention of a workhouse;
1. The defendant under the proviso to Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from Order to complete education may expect that an alien of Egypt's nationality will be subject to the effect of preventing recidivism by his/her order to complete education