2020No1860 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

A

Defendant and Prosecutor

An on-site (prosecution) and a hand-on (public trial)

Attorney Kim Do-sung (Korean)

Incheon District Court Decision 2019Gohap476 Decided September 25, 2020

December 24, 2020

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts

Although it was true that the Defendant committed an indecent act against the victim as stated in the facts charged in the instant case, at that time, the Defendant was unaware of the fact that the victim was a minor, the lower court erred by mistake of facts or by misapprehending the legal doctrine.

2) Unreasonable sentencing

The sentencing of the court below is too unreasonable.

3) Unfair orders to attend lectures

It is unreasonable that the court below ordered the defendant to take a lecture for sexual assault treatment for 40 hours.

(iv)an unfair employment restriction order;

The court below's order the defendant to be placed on employment for two years at child and juvenile-related institutions, etc. and welfare facilities for the disabled.

(b) Prosecutors;

1) Unreasonable sentencing

The sentencing of the court below is unfair because the sentencing of the court below is too unfortunate.

(ii) exemption from disclosure or notification orders;

Although there is no special reason that the defendant's personal information should not be disclosed or notified, it is improper that the court below failed to issue an order to disclose or notify information to the defendant.

2. Determination

A. Judgment on the defendant's assertion of mistake of facts

In addition, when considering all the circumstances that the defendant and his defense counsel stated before and after the crime of this case, including the victim's age, appearance and clothes, the location and attitude of the defendant and the victim at the time of the crime of this case, and the contents of the defendant's statement in investigation agency as to the crime of this case, which can be recognized by considering the evidence duly adopted and examined by the court below, it is judged that the defendant could have known the fact that he is a child or juvenile even if he is a child or juvenile through the victim's face, etc. at the time of the crime of this case. Accordingly, the judgment of the court below which found the defendant guilty of the charge of this case is just, and the defendant's allegation such as mistake of facts is not justified.

B. Determination on the assertion of unfair sentencing by the defendant and prosecutor

The crime of this case is established that the defendant, after the lapse of the victim who is a child or juvenile, committed an indecent act by force against the victim by extending his/her hands out one time, by forceing the victim's her k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k

However, the factual basis of the instant crime is recognized by the Defendant itself, and it appears that the Defendant had no criminal history that was punished prior to the commission of the instant crime, and other factors such as the Defendant’s age, character and conduct, character and environment, motive, means and consequence of the instant crime, the degree of tangible force used by the Defendant at the time of the instant crime, and the circumstances after the instant crime, etc., even if considering all the circumstances asserted by the Defendant and the Prosecutor in the instant pleadings, it is not recognized that the sentence of the lower court is too heavy or too unreasonable. Accordingly, this part of the Defendant and the Prosecutor’s assertion are without merit.

C. Judgment as to the defendant's improper assertion of the attending order

In light of the Defendant’s age, power, risk of recidivism, the course and method of committing the instant crime, and the preventive effects of the sex offense against children and juveniles, etc., which may be achieved by the order to attend the sexual assault treatment course, which was duly adopted and examined by the lower court, the lower court is unreasonable or unreasonable to order the Defendant to attend the sexual assault treatment course for 40 hours. Therefore, this part of the Defendant’s assertion is without merit.

D. Determination as to the Defendant’s assertion of unfair employment restriction order

In light of the Defendant’s age, power, risk of recidivism, background and method of the instant crime, disadvantage of the Defendant due to the employment restriction order, and preventive effects of the sex offense against children and juveniles that may be achieved therefrom, etc., it is difficult to deem that there are special circumstances that the risk of recidivism by the Defendant is significantly low or that the employment restriction period imposed by the lower court is too unreasonable. Accordingly, the Defendant’s assertion on this part is without merit.

E. Determination on the prosecutor’s improper assertion of exemption from disclosure and notification orders

Based on the circumstances stated in its holding, the lower court did not issue an order to disclose or notify the Defendant’s personal information, and did not issue an order to disclose or notify the Defendant’s information. Examining the judgment of the lower court in light of the records, even if the prosecutor considered all the circumstances asserted in the trial, the lower court’s aforementioned judgment is acceptable, and the lower court did not err as otherwise alleged by the prosecutor. Ultimately, the Prosecutor’s assertion on this part is without merit.

3. Conclusion

Therefore, since the defendant and prosecutor's appeal are without merit, they are all dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, judge and assistant judge;

Judges Cho Young-soo

Judges Credit Guarantee