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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. There is no fact that the Defendant did not wrap the victim D’s timber.
In addition, the first access to the victim was due to the fact that the victim was dismissed by the victim himself/herself, and after being aware of the fact, if the victim was imprisoned, he/she tried to express his/her friendship with the victim in order to see how the victim, who is a security guard, would cope with the attack. Therefore, there is no intention to commit an indecent act.
B. The lower court’s sentence of unreasonable sentencing (fine 5 million won) is too unreasonable.
2. Determination
A. According to the judgment of the court below and the evidence duly admitted and examined by the court below as to the assertion of mistake of facts, it is recognized that the defendant forced the victim to commit an indecent act by saving the left shoulder and neck of the victim as stated in the facts constituting the crime in the judgment of the court below.
In addition, in light of the following circumstances, which can be comprehensively determined by comprehensively taking account of each of the above evidence, i.e., ① the Defendant had been aware of the fact that he was aware of the fact that he was aware of the fact that he was aware of another person, ② the Defendant and the victim had committed an indecent act against the Defendant, inasmuch as the Defendant and the victim were different from each other, and were the first day of the instant case, and thus, the Defendant’s above behavior cannot be deemed as “accident”, and there was no relationship to allow the Defendant’s physical contact with the Defendant, and ③ there was no circumstance to deem that the Defendant could have mislead the Defendant by consenting to the above physical contact.
Therefore, the defendant's assertion of mistake is without merit.
B. Compared to the first instance court’s judgment on the assertion of unfair sentencing, there is no change in the conditions of sentencing, and where the first instance court’s sentencing does not exceed the reasonable scope of discretion, it is reasonable to respect
Supreme Court Decision 2015Do3260 Decided July 23, 2015