2020Do8016 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape), children and administrations

Violation of the Juvenile Protection Act (Indecent Act by compulsion), injury

Defendant

Defendant

Attorney Full Il (Korean National Assembly)

Daejeon High Court Decision 2019No243, 2019Do454 (Joint) decided May 29, 2020;

2019 Jeonno44 (Joint Judgment)

September 7, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. A. Article 2 Subparag. 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse defines “children and juveniles” as “persons under the age of 19 (Provided, That persons against whom January 1 of the year in which they reach the age of 19 arrives are excluded)” and Article 7(1) of the same Act provides that persons who commit rape against children and juveniles by assault or intimidation shall be punished by imprisonment with prison labor for life or for a limited term of not less than five years.

The reason why the above law particularly intends to protect children and juveniles is because it is difficult for children and juveniles to exercise their right to self-determination yet due to social, cultural constraints, etc., and it is difficult for them to defend themselves from sexual infringement or exploitation of others due to lack of cognitive, psychological, and related resources. Furthermore, given that children and juveniles are in the process of forming sexual values and completing sex health, sexual infringement or exploitation of children and juveniles may seriously and continuously affect them by pursuing their mental and physical health and forming and developing their own personality (see Supreme Court en banc Decision 2015Do9436, Aug. 27, 2020).

B. Of the facts charged in the instant case, the violation of the Act on the Protection of Children and Juveniles against the Victim’s Non-indicted (Gain, 14 years old) against the victim (Rape) was committed on January 26, 2018 by preventing the victim from resisting against the victim by putting the victim’s shoulder on the part of the defendant’s residence, putting the victim’s shoulder on the part of his/her arms and knee, preventing him/her from going against the victim’s shoulder and knee, etc., and sexual intercourse was committed after preventing the victim from resisting against the victim. The victim’s sexual intercourse was requested at the same place as on the following day, and the victim’s sexual intercourse was requested by the victim who caused the death on the preceding day, but the victim refused it, and the victim could not be divided into the victim’s body next to the body set aside on the part of the victim, and thus, sexual intercourse was committed after preventing the victim.

C. On January 26, 2018, the Defendant asserted that, under the agreement with the victim on January 26, 2018, the victim was only sexual intercourse once, and that on January 27, 2018, the victim did not have any contact with the victim, and in particular, it is difficult to accept the statement that the victim was raped after the serious assault before and after the serious assault, because he was found to have found the victim to have been raped again.

D. The lower court determined as follows.

Even though the victim, after being raped by the defendant, found the house of the defendant again on the next day after being raped by the defendant, in light of the general average of the experience and common sense of the victim, it cannot be readily concluded that the victim’s statement was not reliable immediately. The response of the victim after having experienced the crime and the response method chosen by the victim is only a thousand square meters, and it cannot be said that the victim ought to keep the perpetrator at the scene of the rape and avoid it. Thus, it cannot be said that it is impossible to find the perpetrator first without leaving the perpetrator separately or avoid the perpetrator, and that it is impossible to find the perpetrator first. In light of the victim’s age difference between the victim and the defendant and the defendant, the victim did not appear to have been raped by the defendant, who was aware that he had been raped by the defendant, was unable to hear the victim’s statement to the extent that the victim was sexually disabled by the victim, and thus, it cannot be seen that the victim would have been sexually disabled by the victim.

E. Examining the aforementioned legal principles and the evidence duly admitted, the lower court’s determination as above is justifiable in rejecting the Defendant’s assertion disputing the credibility of the entire victim’s statement on the grounds that the victim’s speech and behavior was insufficient after committing the crime and the victim’s communication was insufficient. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed. In this case where a minor sentence is imposed against the defendant, the argument that the punishment is too unreasonable is not a legitimate ground for appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan