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(영문) 서울고등법원 2018.11.20 2018노272
성폭력범죄의처벌등에관한특례법위반(친족관계에의한강제추행)등
Text

The judgment of the court below is reversed.

Defendant

A Imprisonment with prison labor of two years and six months, and Defendant B shall be punished by imprisonment with prison labor of one year and six months.

(b).

Reasons

1. Summary of grounds for appeal;

A. Defendant A (A) and misunderstanding of legal principles) Defendant A did not commit an indecent act against the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (voluntary indecent act by blood relatives) and the Act on the Protection of Children and Juveniles against Sexual Abuse (voluntary indecent act).

B) Defendant A, in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Use and photographing of Cameras, etc.), took photographs of the body of the victim only once, which constitutes a justifiable act as a purpose of making the victim’s bad habits, i.e., return to the body of the victim, which goes back to a shower.

2) The lower court’s sentence against Defendant A, which was unfair in sentencing (a prison term of three years, a suspended sentence of four years, an order to attend a sexual assault treatment lecture for 80 hours, and an order to provide community service for 120 hours), is too unreasonable.

B. Prosecutor 1) The lower court’s sentence against Defendant A (unfair sentencing) is too unhued and unreasonable.

2) As to Defendant B (misunderstanding of facts and misapprehension of legal principles), the statements made by the victim’s investigative agency to the victim’s investigation agency are mostly consistent with the confessions made by Defendant B, supporting evidence as to the confessions.

The court below found the defendant not guilty on the ground that there is no evidence of reinforcement, and there is an error of law by misunderstanding the facts or by misapprehending the legal principles on evidence of reinforcement.

2. Determination

A. On the part of Defendant A’s assertion of mistake of facts and misapprehension of the legal principles, the lower court determined that, in full view of the circumstances acknowledged by the evidence adopted and examined, Defendant A’s chest was forced to commit an indecent act by force, and took three times the victim’s body, etc. on one occasion as stated in the judgment of the lower court, and that taking the victim’s body, etc. on one occasion cannot be evaluated as a justifiable act that does not violate the social rules.

2) The reasoning of the lower court’s judgment, which is duly adopted and examined, is the same as the reasoning of the lower court.

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