The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

Sexual assault, 40 hours against the defendant.

1. Summary of grounds for appeal;

A. Error of facts and misapprehension of legal principles 1) The place of this case is the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (hereinafter “Sexual Crimes Act”).

(2) Article 11 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes does not apply to “a place where the public is concentrated” as prescribed by Article 11. The Defendant committed the instant crime in a state where the Defendant lacks the victim’s ability to discern things or make decisions with lack of the victim’s ability to discern things due to his or her on-site illness, and the head was well aware of his or her hair. This is not a use of the victim’s explicit and active resistance or the situation where the victim was unable to be aware of properly. Therefore, it does not constitute “indecent act” as stipulated under Article 11 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes.

B. The lower court’s sentence of unreasonable sentencing is too unreasonable.

2. According to the evidence of ex officio determination, the Defendant was sentenced to 6 months of imprisonment and 2 years of suspended execution in the case of Seoul Eastern District Court 2019No589 on October 18, 2019, and the Defendant appealed against the above judgment, but the above judgment became final and conclusive after being sentenced to dismissal of appeal on January 30, 2020. The criminal facts of this case are concurrent crimes between the above crime for which punishment becomes final and the latter part of Article 37 of the Criminal Act, and are concurrent crimes under the latter part of Article 39(1) of the Criminal Act.

Therefore, the judgment of the court below can no longer be maintained.

However, despite the reasons for ex officio reversal, the defendant's assertion of mistake and misapprehension of legal principles is still subject to the judgment of this court.

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

A. Article 11 of the Sexual Violence Act provides that the Defendant’s act does not constitute an indecent act.