(영문) 서울중앙지방법원 2018.2.9. 선고 2017고합1278 판결

Defendant shall be punished by a fine of KRW 5,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Reasons

Criminal facts

On June 29, 2017, at around 20:40, the Defendant: (a) 20:40, around the D convenience store located in Gwanak-gu in Seoul Special Metropolitan City, the Defendant saw the beer that she was satis and she was satisfe at a convenience store to the victim E (at 16 years of age) who she was satisfe and she was sated in the table, and understood that the Defendant she was "at the time when she was a high school, tobacco, etc.", and the Defendant she sawd his hand on the buckbucks of the victim, and rhumd the Defendant’s hand on the bucks of the victim again.

Summary of Evidence

1. Partial statement of the defendant;

1. Each police statement of E and F;

1. A list of 112 reported cases, a photograph of the suspect directly taken by the victim,CC-TV images, and an abstract CD;

Application of Statutes

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and Article 298 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure 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. Registration of personal information of the accused, in full view of the fact that the registration of personal information of the accused and the completion of sexual assault treatment programs can have the effect of preventing recidivism, in light of the age, environment, criminal record, risk of recidivism, family environment, social relationship, etc. of the accused, children exempted from disclosure order and notification order, and the proviso to Article 49 (1) and the proviso to Article 50 (1) of the Act on the Protection of Juveniles against Sexual Abuse (it is deemed that there are special circumstances in which disclosure of personal information of the accused is prohibited);

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 pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Although the defendant was aware of the victim's horses, there was no indecent act such as deceiving the victim's buckbucks.

2. Determination, based on the evidence duly adopted and examined by this Court, the defendant sufficiently recognized that the victim caused buckbucks to commit indecent acts by force in light of the following facts and circumstances.

① 피해자는 경찰에서 친구와 편의점 앞의 테이블에 앉아있는데, 피고인이 와서 편의점에서 물건을 고르라고 사주겠다고 하여 거절하였고, 피고인이 편의점에서 맥주를 큰 거 하나 사오더니 같이 먹자고 하여 친구가 술을 안 먹는다고 했는데도 옆에 앉아 이야기를 하면서 바지위로 허벅지를 아래위로 만져서 만지지 못하게 손을 쳐내자 다시 손을 올려 아래위로 만져 취했으니 집에 가라고 2~3번 이야기를 하니 어깨를 2번 특툭 치고 간다고 하고 일어서서 갔다는 취지로 진술하였다. 피해자의 친구인 F는 경찰에서 피고인이 자신의 어깨를 만져 짜증이 나서 편의점 직원에게 바로 이야기 하여 신고를 하였고, 이후 같이 있기 싫어서 돌아다녔는데 뒤를 돌아보자 피고인이 피해자 옆에 앉아서 왼쪽 허벅지를 쓰다듬는 것을 보았고, 피해자가 손을 밀어내자 다시 쓰다듬는 것을 목격하였으며, 손이 살짝 겹쳐 있는 것을 본 거 같다는 취지로 진술하였다. 피해자와 F의 위와 같은 진술은 구체적이어서 신빙성이 있고, 허위로 진술할 별다른 이유도 없어 보인다. 한편 F은 진술서에 피고인이 자신의 허벅지를 만진 것을 피해자가 목격하였다는 취지로 기재하기도 하였으나, 피해자의 피해사실을 잘못 들었다고 이를 정정한 점에 비추어 볼 때 F의 경찰에서의 진술이 신빙성 없다고 할 수는 없다.

② According to CCTV images installed at the convenience store at the time, the following can be confirmed: (a) if the Defendant: (b) left the victim and F, she sits in front of the convenience store; (c) left the convenience store; and (d) left the front of the victim and F, sits in front of the convenience store; and (e) asked the victim and F to report it to the convenience store; (d) if the Defendant later moved the front of the victim’s side to the convenience store and asked the employees of the convenience store to report it, then the Defendant continues to sit on the victim’s side; and (e) is consistent with the circumstances leading up to the indecent act committed by the Defendant stated by the victim and F.

③ The Defendant did not argue to the effect that the Defendant only told the victim at the time. However, in light of the act of the Defendant and the victim from CCTV images, F’s request for police reports, the victim and F’s statements made by each police, etc., the Defendant cannot be deemed as merely the Defendant merely told the victim, etc. to drink the alcohol.

1. Reasons for sentencing: Fine of 5 million won to 15 million won

2. Determination of sentence: In full view of the fact that a fine of KRW 5 million is deemed to have suffered mental impulses due to the instant crime, the Defendant did not make any effort to recover damage to the victim, and the victim wanted to be punished, the Defendant needs to be punished corresponding to the liability for the relevant crime.

However, the degree of indecent act is not much severe, and the defendant's primary offender who has no record of punishment is considered as favorable circumstances. In addition, the defendant's age, character and conduct, environment, health conditions, motive and circumstance of the crime, and circumstances after the crime, etc. shall be comprehensively taken into account, and all of the sentencing factors specified in the arguments in this case shall be determined as ordered.