Defendant

Defendant

Stacks, assort, and assort;

Attorney Jeong-hee (Korean National Assembly)

Suwon District Court Decision 2018 High Court Decision 630 decided September 20, 2018

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of this judgment shall be published.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

The Defendant, at the time of the instant case, did not panty and panty, and did not engage in obscene acts only after having panty panty and spanty. Considering these circumstances, it is reasonable to deem that the Defendant was in a state of mental illness at the time of the instant case, when considering that the Defendant was diagnosed by a psychiatrist with a non-regular mental disorder and a simple type of spanty spanty.

2. Judgment ex officio: Whether the indictment is reversed due to changes in indictment (negative)

On the other hand, in relation to the facts charged in this case, the prosecutor changed the bill of amendment to the indictment that "in front of the △△ △△dong located in the Goyang-si, ○○-si, ○○○-si," which read "in front of the △△△ △△ △△ dong," but it cannot be said that there was a change in the facts charged or that the subject of the judgment was different from the original judgment, and thus, it does not constitute a separate ground for reversal (see Supreme Court Decision 95Do489 delivered on September 29, 195).

3. Judgment on the defendant's assertion

A. Facts charged

The defendant is a vagabonds with no occupation.

On October 9, 2017, around 20:26, the Defendant publicly obscenityly committed an obscene act so that many and unspecified people may feel a sense of shame and aversion, by getting her panty and panty turb in front of △△○○○○-dong, which described the brue of brut in Goyang-si, ○○○-si, ○○○○-si.

B. The judgment of the court below

The court below found the Defendant guilty of the act of openly considering the following facts: (a) the Defendant was exposed to the sexual flag and her her mar in front of the YU, and was at a considerable time to view the above mar in front of the YU; (b) the Defendant’s her mar and her mar her mar her mar her her mar her mar her mar her her mar her her mar her face at around 10:25; (c) although the instant case occurred in around 20: (d) the Defendant was her mar her sex and her her mar herm was exposed to the Defendant; (d) in fact, Nonindicted Party 1 appeared to the Defendant’s her mar her sexual organ and reported to the police; and (e) the Defendant did not come to the her mar her mar her mar her at the police station; and (e) the police her her mar her her herm.

C. Judgment of the court below

1) The Criminal Act provisions

A person who publicly commits an obscene act under Article 245 (Public Indecency) of the table included in the main sentence shall be punished by imprisonment for not more than one year, a fine not exceeding five million won, detention, or a minor fine.

2) Supreme Court precedents

(A) The concept of public performance and obscenity

The term “obscenity act” under Article 245 of the Criminal Act refers to an act contrary to the concept of sexual morality by stimulating an ordinary person’s sexual desire, causing sexual interest and impairing normal sexual humiliation, and the crime is not established subjectively for sexual purpose, such as sexual humiliation or satisfaction, but it is sufficient if there is awareness of the meaning of the act’s obscenity (Supreme Court Decision 2000Do4372 Delivered on December 22, 200). obscenity act does not necessarily require a description of sexual act or an expression of sexual intent (Supreme Court Decision 2005Do1264 Delivered on January 13, 206).

However, even if a physical exposure occurred, in light of the specific circumstances, such as the date and time, place, part of the exposure, method and degree of exposure, and motive and circumstance of exposure, in cases where it is recognized that it does not merely cause sexual interest and harm a normal sense of sexual shame by stimulating ordinary people's sexual desire, but it does not merely cause sexual humiliation or aversion to others, it does not constitute an act of obscenity under Article 1 subparag. 41 of the Punishment of Minor Offenses Act and Article 245 of the Criminal Act (see Supreme Court Decision 2003Do6514, Mar. 12, 2004).

(B) Specific cases

(1) The case of conviction

Supreme Court Decision 2000Do4372 Delivered on December 22, 2000

The case holding that an obscene act constitutes an obscene act in case where a person who destroyed a car or injured another person on an expressway was exposed to sexual intercourse with his body in front of the public, against a police officer who attempted to restrain him from doing so.

(2) Supreme Court Decision 2005Do1264 Delivered on January 13, 2006

The case holding that, in order to publicize the required nudr model, the act of nudr's nudr model is a crime of public performance and obscenity where nudr's nudr's nudr's body was cut off by fasting the arr's body in the inner body and cutting off the arr's body by spreading the arr's body in the body with the arr's body and the arr's arr's arr's body in the form of exposing the arr's body to the body, and facing the arr's body in the form of

(2) The case of innocence

Supreme Court Decision 2003Do6514 Delivered on March 12, 2004

The case reversing the judgment of the court below which judged that the act of exposing traw with the indication of the port after the dispute constituted an obscene act.

3) The criticism and review of judicial precedents

(A) Due to the influence of the Supreme Court of Japan, criticism that the Supreme Court of Korea defines the concept of obscenity as an infringement of sexual humiliation and sexual morality by stimulating or stimulating the general public’s sexual desire is good. For that reason, Korea’s interpretation also covers the concept that is difficult to readily determine, such as “ordinary”, “comforcing”, and “sexual morality,” etc. (Nonindicted 2, “in the course of public performance and obscenity”, “in the course of public performance and obscenity”, “in the course of public performance and obscenity”, and “in the course of criminal case research (202)”)

In fact, with respect to obscene or obscene acts stipulated in Article 174 of the Japanese Criminal Code, Japan interpreted it as "an act which harms ordinary people's normal sense of sexual shame and goes against good sexual morality" [the Supreme Court on March 13, 32 (No. 11No. 3997), on May 22, 32 (No. 11No. 5526), on December 18, 27, 27 (No. 5No. 2314)].

As a result, the U.S. Supreme Court's ruling (354 U.S. 476(1957) and Mmomos v. Mmosachusetts (383 U.S. 413(1966)) are not significant in terms of obscenity, i.e., the criteria for recognition of obscenity presented by the Decision of the U.S. Supreme Court (413 U.S. 15(1973)).

(a) describe or describe, in an explicit and explicit manner, the ultimate sexual act of a person who has a sound and actual studio, and whose actual studio is the most;

(b)the expression or representation of a self-defensive act, fluor’s function, exposure to reproductive instruments in a clearly explicit manner;

(B) Although the Supreme Court precedents regarding obscenity have accumulated, it is reasonable to interpret that the obscene act as stipulated in Article 245 of the Criminal Act refers to sexual intercourse in full view of the following reasons. Therefore, it is reasonable to determine differently from the Supreme Court's conviction cases as seen earlier.

① The majority of the criminal law academic circles interpret “obscenity” as a sexual act under Article 245 of the Criminal Act, and interpret that sexual intercourse or drinking acts of a man and woman constitute obscene acts, while interpreting that sexual intercourse or drinking acts of a man and woman constitute obscene acts, a simple sexual intercourse, exposure to oil, and kis, etc. are not obscene acts. As such, since Article 3(1)33 of the Punishment of Minor Offenses Act is separately punished for excessive exposure, it is easy to interpret the public performance and obscene acts under Article 245 of the Criminal Act as being separate from the majority theory, it does not result in a confession for punishment.

② For example, in the case of Germany, the act of exposing others with a sense of rejection (Article 183 of the German Criminal Code) and the act of causing sexual humiliation (Article 183a of the German Criminal Code) are punished separately.

(3) Excessive exposure is an order offender, and obscene act related to sexual intercourse is punished as a criminal offense, and thus, it is possible to embody the elements of a public morals crime that has been criticized as being ambiguous, and the interpretation of legal interests and interests to be protected.

④ If it is necessary to continue to determine whether a performance or obscenity falls under the elements of a public performance or obscenity, such as a “ordinary person” or “satisfy,” the determination can easily change depending on the present situation, and it is difficult to predict it in advance.

4) Sub-committee

(A) On the premise that “obscenity” under Article 245 of the Criminal Act is interpreted as “sexual conduct,” the Defendant’s obsessive act in a public place does not constitute a public performance obscenity crime, as it is not related to sexual conduct, on the premise that the Defendant’s obsive act in a public place does not relate to sexual conduct.

(B) From the standpoint of continuing to maintain the previous precedents of the Supreme Court, in light of the following circumstances, the Defendant’s act appears to be an ordinary person’s eye and behavior to restrain him from refusing to do so, and it cannot be deemed that the Defendant’s act is the degree of causing sexual humiliation by stimulating the sexual desire of the general public, thereby bringing about normal sexual humiliation.

① First of all, the Defendant continued to chill social with his on-site illness for about 10 years, for example, fluoring, locking, causing, etc.

② A witness Nonindicted 1 merely showed that the Defendant was dead and exposed to his sexual organ, and did not regard his own act or other sexual act related to his sexual intercourse.

(3) Although women's confidence is assistance in the wartime of the War Veterans Memorial, it does not seem that it has the effect of raising the sexual desire of the general public or defendants.

(4) There is no history of sex offense against a defendant, and no record is diagnosed to have sexual characteristics.

(C) If so, Defendant’s performance and obscenity act cannot be found guilty on the ground that prosecutor’s proof was not given, and Defendant’s assertion pointing this out is acceptable.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 of the Criminal Procedure Act, and the following is ruled again.

The summary of the facts charged in this case is the same as the statement 3. A. C., which constitutes a case where there is no proof of a crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the verdict of innocence is announced in accordance with Article 58(2) of the Criminal Act. It is so decided as per Disposition.

Judge Oi-ho (Presiding Judge)