2019No321 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a place of public gathering)

Indecent Acts in this section)

A

Defendant

He/she shall file a prosecution and conduct a trial on the paper of his/her own.

Attorney Doh-ho (Korean)

Seoul Central District Court Decision 2019Da4971 Decided October 4, 2019

2020,10

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles

1) The Defendant was only her son, etc., but there was no fact that the Defendant her son was her her but her son.

2) At the time of taking over the defendant arrested as a flagrant offender, the police did not notify the defendant of the principle of dissipation.

B. Unreasonable sentencing

The punishment sentenced by the court below (one year and two months of imprisonment, 80 hours of order to complete a sexual assault treatment program, 3 years of disclosure and dismissal order, 3 years of employment restriction order) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

(a) The defendant's indecent conduct;

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by the court below, the fact that the defendant committed an indecent act by deceiving the victim's sound records by his hand is sufficiently recognized. The defendant's assertion of mistake of facts is without merit.

① At the time of the police investigation, the victim got her her her son and her her son and her son. (Evidence Records No. 63-69)

② 피고인은 경찰 조사 당시 손등뿐만 아니라 '손날'로도 피해자 엉덩이 가운데를 댔다 떨어졌다 했고 지하철이 흔들리면서 몸이 앞으로 기울 때를 기회삼아 꾹 누르기도 하였다고 진술하였는데(증거 기록 제41쪽, 제100쪽), 손날로 엉덩이 가운데를 앞쪽으로 지긋하게 누를 경우 피해자의 음부에 닿을 가능성이 충분하다.

3) In the previous criminal acts of the same kind punished in the past, the Defendant stated that her son and son in contact with her son and son, but did not have her son and son, and that this crime was not committed (Evidence No. 98 of the Evidence Records). However, during the Defendant’s previous criminal acts, her son and son and son did not her son son son son son son son son son son (Evidence No. 109, No. 135 of the Evidence Records).

B. Whether the U.S. Principles are observed

The following facts and circumstances acknowledged by the record, i.e., ① a general witness of the Defendant’s crime, arrested the Defendant as a flagrant offender, and the Defendant asserted that D was unable to receive notification of the domin rule from D at the time of the first police interrogation, ② the Defendant’s acceptance of a flagrant offender was stated to the effect that the Defendant notified the Defendant of the Damin rule at the time of the receipt of a flagrant offender. However, the above acceptance is not D, but F, and it is difficult to believe it as it was. ③ The Defendant was not taken to the police from the beginning, but was arrested to the general public, and the police was arrested to the Defendant, and thus the police did not have to notify him of it because it was relatively specific at the time of the receipt of a new flagrant offender (Evidence No. 96 of the record), ④ A made a statement to the effect that D was a flagrant offender at the time of the first police interrogation, but it is difficult to view the possibility that the first receipt of a flagrant offender was made without any reasonable doubt as evidence presented by the prosecutor.

However, the admissibility of evidence is denied due to illegal arrest is limited to the statements made by the police and the prosecutor's office of the defendant, and the statements made by the victim and witness and by the defendant in the court of original instance are different from the evidence collected by illegal arrest, and thus admissible as evidence. It is reasonable for the court below to find the defendant guilty on the ground of the evidence (such as the court statement of the defendant, the police statement about B, the written statement of the police about B, and C), and the illegality of the above arrest procedure does not affect the establishment of the crime of this case. This part of the defendant's argument does not

3. Judgment on the assertion of unfair sentencing

The degree of indecent act in this case is significant, and the Defendant did not reach an agreement with the victim. The Defendant has eight previous departments and five times only for the Defendant who was sentenced to a heavier punishment. The Defendant was sentenced to imprisonment with prison labor for one year for the same criminal act and committed the instant crime only on the two months only on the date on which the execution of the sentence was completed, and thus, there is no reflectivity and there is a high risk of recidivism. Considering the above circumstances, the lower court’s punishment is appropriate, and it cannot be deemed unreasonable. The Defendant’s assertion of unreasonable sentencing is without merit.

4. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

For the presiding judge and judge;

Judges Laos

Judges fixed-ranking

1) Although the Defendant’s defense counsel stated in the statement of grounds for appeal that the grounds for appeal are “in fact-finding and unreasonable sentencing,” the Defendant’s defense counsel complies with the following multilateral principles:

It is appropriate to regard the assertion of misunderstanding of legal principles as the assertion of misunderstanding of facts.