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(영문) 서울고등법원 2016.12.02 2016노2802
성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)등
Text

All appeals by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) In regard to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Dameras, Use and Screening of Cameras, etc.), the victim E at the time of the instant case is aware of the fact that the Defendant photographs the body of the victim, so the Defendant cannot be deemed to have taken the body against the victim E’s will.

B) As to the obstruction of business, since the main business of the victim E was terminated at the time of the occurrence of the instant case, there was no “business” subject to the protection of the crime of interference with business, and the Defendant did not have any intention to interfere with business. C) The Defendant did not assault the victim J. Even if the fact of assault was acknowledged, the Defendant resisted the victim’s unilateral assault, and thus, constitutes a legitimate act under Article 20 of the Criminal Act.

2) In light of the following: (a) the lower court’s sentence of unreasonable sentencing is too unreasonable; (b) the prosecutor’s 1) the specific and consistent statement of the victim E by mistake of facts; and (b) the details of the victim E’s reporting on the attempted rape damage, etc., the Defendant may recognize the fact that the Defendant attempted to rape the victim E

Therefore, the judgment of the court below which acquitted this part of the facts charged is erroneous by misapprehending the facts and affecting the conclusion of the judgment.

2 The lower court’s sentence of unreasonable sentencing is too uneasible and unreasonable.

2. Determination

A. As to the Defendant’s assertion of mistake of facts and misapprehension of legal principles, the lower court’s judgment based on the evidence duly admitted and investigated as follows: (i) the victim made a statement that he was unaware of the Defendant’s photographed consistently from the investigative agency to the court of the lower court; (ii) the details of DNA conversations and conversations between the Defendant and the victim.

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