2014Gohap261 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age)

Adult indecent act by compulsion)

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Gangwon* (Public Prosecutions). (Public Prosecutions)** (Public Trial)

Head of Attorney Park* (Korean National Assembly Line)

September 29, 2014

Defendant shall be punished by a fine of KRW 15,00,00.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

To order the defendant to complete the sexual assault treatment program for 40 hours.

To order the defendant to pay an amount equivalent to the above fine.

Criminal facts

On May 20, 2014: around 20: around 20, the Defendant committed an indecent act, such as discovering a victim who was in front of the cooling house in order to purchase a ice cream at the place of a cream in Gangnam-gu, Seoul. * In order to purchase a cream at the place of a crypt, the Defendant committed an indecent act, such as discovering the victim ( South and eight years of age), using the victim’s own cryp, making the victim cryp with his own cryp, and taking the victim’s cryp, and

Accordingly, the defendant committed an indecent act against the victim under 13 years of age.

Summary of Evidence

1. Partial statement of the defendant;

1. Video recorded in police video statements or video CDs;

1. Voluntary report;

1. Images recorded in CD (ctv);

1. Forestation;

Application of Statutes

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

Article 7 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 298 (Selection of Fines)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following extenuating circumstances in favor of the reasons for sentencing)

1. Invitation of a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

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. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. In full view of the following: (a) the proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; and (b) the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the degree of indecent act in this case does not focus on the degree of indecent act; and (c) it is difficult to readily conclude that there is a risk of recommitting a sexual crime against the Defendant on the grounds that there is no same criminal record; and (d) the disadvantage and anticipated side effect of the Defendant on the disclosure and notification of information on

Judgment on the argument of the defendant and defense counsel

1. Summary of the defendant's assertion

A. Although the defendant had spared the victim in order to wear the victim at the time and place of the ruling, there is no fact that the victim would be spared with the view of the victim.

B. The Defendant’s act does not constitute an indecent act, nor did the Defendant commit an indecent act.

2. Determination

A. Whether there exists a fact that he/she has been faced with the victim's view

In light of the following circumstances, which can be recognized by comprehensively taking account of the above evidence, such as the statement to the effect that the victim has been kisked due to the police investigation, etc., the defendant clearly stated that he/she has been kisked to his/her own view, such as the victim's statement to the effect that he/she has been kisked to the police station, the overall circumstance and detailed circumstances are very specific and inconsistent, and the victim's statement is consistent with CCTV images in the field of the case, and it is difficult to see that the victim merely 8 years old did not experience, and there is no motive or reason to make a false statement, and it is sufficiently recognized that the victim's statement has credibility in the victim's statement, and that the defendant has been kisked to the victim's view by each of the above evidence, including the victim'

“Indecent act” means an act that causes a sense of sexual humiliation or aversion to the public objectively and contrary to good sexual morality, which infringes on the victim’s sexual freedom. Accordingly, the determination should be made carefully by taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim before, circumstances leading to the act, specific manner of act, and the surrounding objective situation and the sexual moral sense of that age, etc. Furthermore, the subjective motive or objective is not required to stimulate, arouse, and satisfy sexual desire as a subjective constituent element necessary for the establishment of the crime of indecent act by compulsion (see Supreme Court Decision 2013Do5856, Sept. 26, 2013).

앞서 본 증거들을 종합하여 인정할 수 있는 다음과 같은 사정 즉, 피고인이 갑자기 피해자의 뒤에서 꽉 껴안으면서 얼굴을 앞으로 돌려 볼에 입을 맞추기까지 한 점 , 피고인과 피해자가 아무런 친분관계도 없고 당시 처음 본 사이인 점, 피고인의 행위에 대하여 피해자가 기분이 나빴다고 진술하고 있고 당시 고개를 돌리며 빠져나오려고 애쓰는 명백한 거부행위를 한 점, 당시 현장에 있던 * * 마트 주인은 피고인의 등을 때리며 피고인을 만류하였고, 피해자의 누나는 울음을 터뜨리기까지 한 점 등을 종합하여 볼 때, 피해자가 8세의 남아라는 점을 고려하더라도 피고인의 행위는 객관적으로 일반인에게 성적 수치심이나 혐오감을 일으키게 하고 선량한 성적 도덕관념에 반하는 행위로서 피해자의 성적 자유를 침해하는 것으로 추행에 해당한다고 봄이 상당하고, 피고인에게 추행의 고의도 인정된다 .

The reasons for sentencing)

Considering the fact that the defendant committed an indecent act against a female victim under 8 years of age who has no common sense, and that he did not make efforts to recover from damage, and that the victim seems to have suffered mental shock due to the instant case, the criminal liability of the defendant is not light. However, considering the fact that the degree of indecent act by compulsion of this case is not severe, that the defendant committed the instant crime by compulsion of this case in a state of drinking, that the defendant seems to have committed the instant crime by contingency in a state of drinking, and that the defendant has no criminal record of the same kind of crime, the punishment shall be determined as ordered by taking into account the various sentencing factors shown in the instant argument, such as the defendant's age, environment, character and conduct, and conditions before and after the instant crime. Personal information registered.

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information under the main sentence of Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and is obligated to submit personal information to the competent agency pursuant to Article 43

1. Grounds for sentencing a judgment different from the jury verdict and the jury verdict;

- Three jurors: guilty

- Six jurors: Not guilty

2. 배심원 평결과 다른 판결을 선고하는 이유 이 사건 배심원들은 위와 같이 다수결에 의하여 무죄로 평결하였다. 다만 배심원들은 피고인이 피해자의 볼에 입을 맞춘 사실까지는 인정하기 어렵다고 사실인정을 한 다음 이를 전제로 위와 같이 평결하였다. 그러나 피고인 및 변호인의 주장에 대한 판단 2. 가. 항과 같이 피고인이 피해자의 볼에 입을 맞춘 사실까지 인정할 수 있고, 그와 같은 사실관계를 전제로 앞서 본 바와 같이 판단하는 바이므로, 배심원들의 의견과는 다른 판결을 선고한다2 ) .

It is so decided as per Disposition for the above reasons.

Judges Oil-hee

Judges Kim Tae-tae

Judges Kim Gin-woo

1) 벌금형을 선택하였으므로 양형기준이 적용되지 않는다.

A person shall be appointed.