2012 High 308 Violation of the Act against the Protection of Children and Juveniles against Sexual Abuse, Indecent Acts by compulsion, Injury

A.

Kim Jong-Un (Court of Prosecution) and the transmission file (Court of Justice)

Law Firm B

Attorney BA,B

September 27, 2013

Defendant shall be punished by a fine of KRW 10,000,000.

Defendant who converted 50,000 won into one day when the above fine has not been paid;

shall be confined in a workhouse.

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

Criminal facts

1. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

On August 13, 2012, at around 21:25, the Defendant: (a) called “D” in the main road of Chuncheon City, around 21:25, the Defendant: (b) called “D” in front of the main road of the Victim E (W, 15 years of age) with his father F, Nice, and divided personnel, and (c) led the Defendant to F and Sin, the Defendant avoided the Defendant into the first floor of the said “D”. The Defendant, who was demanded from the victim who driven the Defendant, was able to do so, sent back his hand to the victim, and committed an indecent act by force by forceing the victim by moving the victim’s left chest part of the victim’s clothes one to two times above.

2. Injury;

The Defendant, at the 1st floor of the above "D," as described in paragraph (1), made a sexual speech to E, as described in paragraph (1), and put the victim F (the father) who was his father, and the victim F (the 46 years of age) who was in the city, caused the victim's ice so that the victim's ice sofacing part of the ice so that the victim could not know the number of days of treatment.

Summary of Evidence

1. The defendant's partial statement in the first trial record;

1. Each legal statement of witness F, E, and G;

1. Each police statement to F and E;

1. G statements;

1. Photographs, written diagnosis of injury, and investigation report (the confirmation, etc. of the fact of damage to the victim, etc.);

Application of Statutes

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

Article 7(3) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012; hereinafter the same shall apply), Article 298 of the Criminal Act (the occupation of indecent acts by compulsion, the choice of fines), Article 257(1) of the Criminal Act (the occupation of injury and the selection of fines)

1. Aggravation for concurrent crimes;

The former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Gender Equality of Children and Juveniles who are heavier than punishment]

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order to complete programs;

Article 13(1) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse

Judgment on the argument of the defendant and his defense counsel

1. Part on indecent act by compulsion

A. The assertion

In the process of the defendant's escape from the place where the victim was committed and the victim was placed, it is not possible for the defendant to contact the chest part of the victim, but there is no fact that the defendant spreaded to the chest part of the victim.

The only evidence to acknowledge the crime of indecent act by compulsion is the victim's statement, and the victim's statement is not reliable in light of the following circumstances.

(1) The victim initially testified to the effect that the police did not mention about the indecent act when the police was called, and that the Defendant was sexually indecent act by hearing the explanation that the I Center of H Hospital could not be punished as sexual harassment on Nice.

(2) The entrance of the entrance, which is a damaged place, was very narrow space where the victim “if the victim had satisfyed his body,” but did not have any hearing at the time when the victim had satisfyed “if satched his body within the body.”

(3) On the issue of whether the victim witnessed the victim's surface, the victim did not appear to have the victim's words and omissions, but the victim's words and omissions stated as if they were directly viewed.

(4) The fact that there are many people in the state of vision and indecent acts by compulsion is an emergency.

Therefore, the crime of indecent act by compulsion against the defendant is not established.

B. Determination

According to the evidence duly adopted and examined by the court, in front of the building located at DI (2nd floor) the victim's speech, the defendant had a trial room between the defendant and the victim on the ground that he stated that "I would go to a short speed only". G in the surrounding area had a F, the father of the victim who attempted to fight, and the defendant had entered the first floor of the above building, who attempted to go to go to the D branch where she would go to go to the victim's speech, and the victim's speech and the victim's speech were first entered to the above front of the building. The victim and the victim's speech and the victim's speech were made to the victim's speech and the victim's speech and the victim's speech were made to the victim's speech and the victim's speech and the victim's speech were made to the victim's speech and the victim's speech and the victim's speech were made to the police officer's speech and the victim's speech were made to the victim's speech and the victim's speech were made to the police officer's.

In light of the above evidence and the following circumstances revealed by the above facts of recognition, the defendant's statement that the defendant committed an indecent act against the victim as stated in its holding is reliable. Thus, the above assertion by the defendant and the defense counsel is not accepted.

(1) ① Since the victim stated that he was indecent act by the Defendant at H University I Center on the day of the instant case, the victim demanded the Defendant to go her speech from the Defendant until this Court until this Court, and the Defendant got out of the body to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her to her.

1. ② The police officer M explained at the above I Center that it was possible for the victim who asserts sexual harassment to be punished for the victim who asserts sexual harassment, and provided a written complaint to the victim and prepared a written statement to the victim. In light of this, the victim did not state sexual harassment damage in the above I Center, but rather stated sexual harassment damage in the above I Center. It seems that the victim was provided with a guidance after he stated the damage with the thickness. Furthermore, the victim under the age of 15 did not call to the male police officer that the defendant was aware that he was his chest because the victim was aware of the victim's chest because he was sexual harassment, and the victim could not speak with the I Center about the victim's sexual harassment damage.

(2) The victim consistently made a statement that "if the victim was satisfying the body of the victim (at the time when the defendant delivered the chest), why he was satisfying." The police and the prosecution made a statement that "the defendant also was satisfying on the road where one of the women's patriotism was satisfying and going to the road." While F and G made a statement that they did not have the above sound of the victim at the time, F were satisfying on the idea that they were sexual harassment (the victim's speech was satisfying, G et al. was fying on the part of the victim, and G et al. was satfying on the part of the victim, and thus, they did not hear this (the victim's sound was satisfying on the part of the victim's statement, but in light of the overall contents of the victim's statement, it appears that they were satisfying on the victim's statement.

(3) On the day of the instant case, F did not make a statement about the victim’s indecent act damage in the police investigation, and thereafter, in the police investigation of the Defendant and the police, the Defendant made a statement as if he had directly seen the commission of indecent act, and the Defendant reversed the front-way statement by being subject to the investigation by the prosecution, and the Defendant made a statement that he had taken the front-way statement (if he had a big father back to the center, he had the center make the same and consistent statement from the above prosecutor’s statement to this court, and was unable to make such statement due to the lack of knowledge of the damage at the time of the instant case, and in light of the overall content of the protocol, it appears that the Defendant made a false statement by exaggeration in the process of making a statement in confrontation with the Defendant at the time of the police investigation.

(4) In full view of the fact that the defendant committed an indecent act against the victim in the course of avoiding the victim's behaviors and vision, the defendant was under the influence of alcohol at the time. However, the defendant was under the influence of alcohol, the defendant was at a short distance of 2 meters with the victim who obstructed his frontway, and the indecent act was committed in a short period of time, which is less than a few seconds, and G and F could not be seen as being in the form of the victim together with the defendant before entering the above gate because the defendant was driving away from the defendant and the victim, and G could not be seen as being in the form of the victim before entering the above gate, and even after entering the above gate, G could not be said to be an emergency that is contrary to the empirical rule.

2. Injury portion

A. The assertion

The Defendant did not drinking the victim: Provided, That during the process of being sealed by the Defendant and the victim, the Defendant was out of the victim’s safety, and the flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick flick fl

(b) judgment;

위 각 증거들에 의하면, 피해자는 오른 팔에 편마비가 있어서 왼손으로 피고인의 먹 살을 잡았는데 주변에서 싸움을 말리던 G 등이 피해자의 덩치가 더 크고 피해자가 더 공격적이라고 판단하여 피해자의 두 팔을 뒤에서 잡고 말렸고, 이 때 피고인이 주먹으 로 증인의 얼굴을 때린 사실, 사건 당일 찍은 피해자의 사진을 보면 눈 아래 부분에 빨갛게 패인 부분이 있는 사실, 피해자는 사건 다음날 N정형외과에서 코의 표재성 손 상 타박상, 턱의 표재성 손상 타박상, 목뼈의 염좌 및 긴장 등의 병명으로 치료를 받고 향후 3주 치료가 예상된다는 진단을 받은 사실 등을 인정할 수 있고, 위 인정사실에 의하면 피고인이 피해자의 얼굴 부위를 때려 판시와 같은 상해를 가하였음을 넉넉히 인정할 수 있고, 이 사건 범행의 경위, 상해 정도 등 여러 사정에 비추어 볼 때 피고인 의 위와 같은 행위가 정당방위 또는 정당행위에 해당한다고 보기도 어려우므로, 피고 인 및 변호인의 위 주장을 받아들이지 아니한다.

Sentencing 1)

1. The scope of punishment by law: Fines of not less than 5 million won but not more than 30 million won;

2. Determination of sentence;

The defendant, under the influence of his status as a public official, commits an indecent act against a victim, and committed an injury to his father. The nature of the crime is not that of the defendant. However, the defendant has no record of having been sentenced to the same criminal record or a sentence of heavier punishment, the degree of indecent act is relatively minor, the victim of the crime of indecent act has agreed with the victim, and the victim of the crime of indecent act by compulsion submitted a written agreement at the stage of investigation (the above victim submitted a written agreement at the recommendation of his father but then voluntarily attended at the police station along with his mother and withdrawn his intention of not to be punished), and the defendant's age, character and conduct, environment, and sentencing conditions stated in the records, shall be determined as per the order.

Registration of Personal Information

Where a conviction becomes final and conclusive on the instant criminal facts, and a criminal facts are finalized, the Defendant constitutes a person subject to registration of personal information under Article 33(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse. Therefore, pursuant to Article 5(1) of the Addenda of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes ( December 18, 2012) and Article 43 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the Defendant shall submit personal information to the competent agency.

Determination as to whether to issue disclosure and notification orders;

Since the defendant is sentenced to a fine, the court shall not issue an order to disclose or notify the defendant pursuant to the proviso to Article 38 (1) and the proviso to Article 38-2 (1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse.

Periodical (Presiding Judge)

Long-term Private Telecommunication

Freeboard Kim

1) As a result, the sentencing criteria set by the Supreme Court’s Sentencing Committee are not applicable.