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(영문) 부산고등법원 2020.04.16 2019노569
성폭력범죄의처벌등에관한특례법위반(통신매체이용음란)등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles posted comments on the victim's D Blogs as stated in paragraph (2) of the crime in the judgment of the court below are all contingent actions arising from fear that the defendant was subjected to a police investigation upon the commencement of an investigation due to the crime as stated in paragraph (1) of the crime in the judgment of the court below, and the defendant did not have an intention to harm the victim at the time of posting the above comments. Therefore, there was no intention of intimidation.

Nevertheless, the lower court convicted the Defendant of this part of the facts charged by misapprehending the facts or misapprehending the relevant legal doctrine.

B. The sentence imposed by the lower court on the Defendant (two years of suspension of execution for eight months of imprisonment, 40 hours of lecture for sexual assault treatment, 80 hours of community service order, 2 years of employment restriction order, etc.) is too unreasonable.

2. Determination on the grounds for appeal

A. 1) Determination on the assertion of mistake of facts and misapprehension of legal principles refers to a threat of harm that may cause fear to a person generally. As such, an intentional act as a subjective constituent element does not require any intent or desire to actually realize the harm that a perpetrator knows and cites that the perpetrator informss harm to such an extent. However, if the perpetrator’s speech or behavior is merely merely an expression of a simple emotional humiliation or temporary dispersion, and it is objectively evident that there is no intention to harm in light of the surrounding circumstances, it shall not be recognized as a intimidation or a threat. However, whether there was an intent of intimidation or a threat of such meaning should be determined by considering not only the external appearance of the act, but also the surrounding circumstances, such as the background leading to such act, the relationship with the victim, etc. (see, e.g., March 25, 2005).

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