2020No2172 A. Inducement of indecent act

(b) Indecent acts;

1.(a) A

2.(a) B

Defendants

Yellow lecom (prosecution), Kim Ho-ho (Public trial)

Law Firm Law Firm Rolo, Attorney Jeong-ju, and President Young-gu (for defendant A)

Attorney Kim Yong-soo (the national election for the defendant B)

Seoul Eastern District Court Decision 2020Gohap147 Decided November 19, 2020

on April 6, 2021

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant A

1) misunderstanding of facts, misunderstanding of legal principles, and incomplete hearing concerning inducement of indecent conduct

Defendant A did not have access to the victim for the purpose of indecent act. Defendant A forced the victim to take the victim into force or did not restrict the movement of the victim. The lower court erred by misapprehending the fact.

The victim consented to the proposal and moved the alcohol to the house of Defendant B after the victim gave consent to the proposal through voluntary dialogue with Defendant A. The lower court erred by misapprehending the legal doctrine.

Although the statements made by the victim are inconsistent and are inconsistent with the contents of external CCTV images, the lower court erred by failing to make any judgment.

2) Unreasonable sentencing

The punishment of the lower court (one year of imprisonment, three years of suspended execution, and forty hours of sexual assault treatment course) is too unreasonable.

B. Defendant B

1) misunderstanding of facts and misapprehension of legal principles

The victim agreed to the proposal of the Defendants and moved the alcohol together with the Defendants. The Defendants were not forced to attract the victim against the victim’s will, and there was no purpose to commit an indecent act against the victim at the time of moving the victim to Defendant B’s house. The lower court erred by misapprehending the legal doctrine and misapprehending the legal doctrine.

2) Unreasonable sentencing

The punishment of the lower court (two months of imprisonment, two years of suspended execution, and forty hours of sexual assault treatment course) is too unreasonable.

2. Determination

A. As to the Defendants’ assertion of mistake of facts, misunderstanding of legal principles, and incomplete hearing

1) The judgment of the court below

The Defendants asserted the same purport in the judgment below. In light of Articles 5 through 7 of the judgment below, the court below rejected the Defendants’ assertion and convicted the Defendants on the ground that ① the Defendants did not drink any alcohol even though they had been able to drink it in the Defendant’s house after entering the Defendant’s house, and ② the Defendants did not prepare for drinking, but did not want to drink it. ② The Defendants were able to drink it in the nearby drinking house, etc., if the Defendants merely thought it with the victim. However, the Defendants were able to drink it in the near drinking house, etc., but the Defendants were able to drink the Defendant’s house, and ③ even if the victims were unable to drink it with the Defendant’s house, the Defendants did not drink it, even though they did not drink it, and did not want to drink it, the court below found the Defendants guilty of committing an indecent act by inducing the Defendants.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence, the lower court’s determination is justifiable, and there was no error of misconception of facts, misunderstanding of legal principles, or incomplete deliberation alleged by the Defendants (However, the lower court’s determination as follows is added to the Defendants’ assertion

2) Determination added by this Court

A) First of all, there is no evidence to acknowledge that the Defendants made the victim’s speech to drink the alcohol on the victim’s house “the Defendant’s house”, or that the victim consented the Defendants to drink the alcohol on the Defendant’s house “the Defendant’s house”.

Defendant A made a statement at the police station that “The victim would drink and drink more at her house.” However, Defendant A made a statement that “The victim agreed to drink more before her convenience store (police No. 1, No. 70 of the evidence record),” and “The victim would go back to the end that she would come after her house,” and she made a statement that “The victim would drink more her house, and the victim would drink her house.” The first statement at the police station No. 2, No. 207 through No. 208 of the evidence record, I recommended the victim to make a statement that “The victim would drink her house,” and that “The victim would not drink her house,” and the victim would be more convenient to make a statement that the victim would drink her house.”

나) 피해자가 피고인 A의 가슴을 장난치듯이 툭 치고, 피해자가 웃으면서 손가락으로 특정 방향을 가리키는 장면, 피해자가 피고인 B의 손을 잡고 나란히 걷는 장면만으로는 피해자가 자발적으로 '피고인 B의 집'으로 갔다고 볼 수 없다.

Defendant B made a statement that “the victim was directed to some extent by Defendant B’s office” (police No. 1, Evidence No. 55).

Defendant A also made a statement that he wanted to continue gathering (police No. 1 and evidence No. 73).

Defendant B stated that the “victim’s transfer to Defendant B’s house cannot be seen as a good mind,” and that “the Defendant recommended the Defendant to drink alcohol at any time and at any time, he may have consented to it (police No. 2, Evidence No. 197, Evidence No. 200).”

C) According to each investigation report (related toCCTV investigation), (related to H CCTV perusal), 85 pages of evidence records, 162 pages), and crime prevention and H CCTV (Evidence No. 243 pages of evidence records), each CCTV video is included in each CCTV video.

① The Defendants put the arms of a victim whose body cannot be properly accumulated under the influence of alcohol and going back to or from Defendant B’s house [the CCTV for crime prevention - self-defense - 1-134-02 file (00)]; ② the shape of the victim’s body to not attract the victim by getting the body back; the form of the Defendants’ body cut back the victim’s hand by getting the victim’s hand back; and the form of the Defendants’ body was [the Defendants’ 11, 12, and 15:30 after the time when the CCTV display was displayed; the Defendants’ body 12 - 12 - 10 - 1080 - 4 - 15 - 1010 - 4 - 12 - 15 - 3 - 12 - 15 - 3 - 12 - 12 - 10 - 14 - - 12 - 14 - - 1 - - 3 - - 1 - - 1 - - 1. - - 2 of the victim of the victim.

B. As to the Defendants’ assertion of unfair sentencing

1) In a case where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

2) There is no change in the sentencing conditions compared with the original judgment because this court did not submit a new sentencing data favorable to the Defendants, and the circumstances alleged by the Defendants on the grounds of unfair sentencing are deemed to have already been reflected in the grounds for sentencing in the lower court. In full view of other various circumstances, including the Defendants’ age, character and behavior, environment, motive and background of the crime, means and consequence, and circumstances after the crime, etc., the lower court’s sentencing (including additional disposition) is deemed to be unreasonable because it goes beyond the reasonable scope of discretion. Accordingly, each of the Defendants’ arguments is without merit.

3. Conclusion

Since all appeals filed by the Defendants are without merit, they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

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

The judges of the presiding judge and the Jin

Judges Kim Gin-jin

Judges Choi Jong-hee