(영문) 서울서부지방법원 2021.1.25. 선고 2020노1397 판결

For the accused, an employment restriction shall be issued to the child and juvenile-related institutions, etc. and welfare facilities for persons with disabilities for three years.

Reasons

1. Summary of the grounds for appeal (unfair sentencing in both cases)

With respect to the punishment sentenced by the court below (one month of imprisonment, etc.), the defendant asserts that the punishment is too unreasonable, and that the prosecutor's punishment is too uneasible and unfair.

2. Determination

In light of the background of the Defendant’s indecent act against the victim and the background and degree of the indecent act committed by the Defendant, the nature of the crime is not very good. In the court of the original instance, the victim had to testify by denying the crime.

However, in full view of the fact that the defendant appears to have led to the confession and reflect of his crime in the trial, that is the first offender who has no record of crime, that the victim is seeking the preference of the defendant by mutual consent with the victim in the trial, and other various sentencing conditions, such as the defendant's age, character and conduct, family environment, the judgment of the court below is judged to be unfair.

Defendant’s assertion of unreasonable sentencing is reasonable, and prosecutor’s assertion is without merit.

3. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows. (Inasmuch as the appeal by the defendant is accepted and reversed, the prosecutor's appeal is not dismissed

【Reasond Judgment】

Criminal facts and summary of evidence

The summary of the facts charged by this court and the summary of the evidence is as shown in the corresponding column of the judgment of the court below, except for adding "1. The defendant's oral statement at the court below" to the summary of the evidence. Thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 300, 299, and 298 of the Criminal Act; Selection of Imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Order to attend lectures;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An employment restriction order;

The main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse and the main sentence of Article 59-3(1) of the Act on Welfare

Reasons for sentencing

In full view of the various circumstances examined in the above 2. Judgment and all of the sentencing conditions shown in the oral proceedings, the sentence shall be determined as per Disposition.

Registration and submission of personal information

A judgment of conviction on a sex offense subject to registration becomes final and conclusive, and the defendant is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the relevant agency pursuant to Article

Disclosure Order, Exemption from Notice Order

Considering the Defendant’s age, occupation, criminal history, risk of recidivism, details of the instant crime, method and consequence of the instant crime, prevention of a sex offense to be registered through an order to disclose or notify the victim, protection effect of the victim, and anticipated side effects, etc., it is deemed that there are special circumstances that may not disclose or notify the Defendant’s personal information. Accordingly, an order to disclose or notify the Defendant pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, proviso to Article 49(1) and proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse shall not be issued. All appeals filed by the Defendant and the prosecutor are dismissed.