The judgment below

The part of the case of the defendant is reversed.

A defendant shall be punished by imprisonment for nine months.

The judgment below

(2).

1. Summary of grounds for appeal;

A. The judgment of the court below convicting the victims of an indecent act is erroneous in the misapprehension of facts, even though the defendant and the person who filed for the medical care and custody (hereinafter "defendant") did not commit an indecent act.

B. The sentence sentenced by the lower court (nine months of imprisonment) is too unreasonable.

2. Determination

A. 1) We examine ex officio the part of the case of the defendant before determining the grounds for appeal.

The term “a crime for which judgment to face with imprisonment without prison labor or a heavier punishment has become final and conclusive and a crime committed before such judgment has become final and conclusive” falls under concurrent crimes prescribed in the latter part of Article 37 of the Criminal Act. In such cases, in consideration of equity in cases where a crime subject to concurrent crimes and a crime for which judgment has not become final and conclusive among concurrent crimes under Article 39(1) of the Criminal Act is concurrently adjudicated and a crime for which judgment has become final and conclusive under Article 39(1) of the Criminal Act, a sentence shall be imposed on the relevant crime (see, e.g., Supreme Court Decisions 2009Do2066, May 14, 2009; 2015Do5257, Jun. 24, 2015). According to the records, the Defendant was prosecuted as obscene public performance with the Busan District Court Branch on June 29, 2017, which was prior to the prosecution by the instant case.

In a case where a separate indictment was instituted, the Defendant was sentenced to a two-year suspended sentence on September 6, 2017 for an obscene and obscene crime, and the judgment became final and conclusive on January 27, 2018.

The crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Acts in Public Crow Places) and the crime of obscenity in public performance for which judgment has become final and conclusive falls under concurrent crimes by a group after Article 37 of the Criminal Act, and thus, a punishment for the crime of this case shall be determined at the same time under Article 39(1) of the Criminal Act

In that it does not take such consideration, the part of the judgment of the court below concerning the defendant cannot be maintained as it is.

B) Despite such reasons for ex officio reversal, the Defendant’s assertion of mistake is still subject to the judgment of this Court.