(영문) 서울고등법원 2016.8.30. 선고 2016노1509 판결

Disclosure and notification of information on the accused for two years (Provided, That the summary of the sex offense disclosed and notified shall be limited to the crime of similar rape in the judgment).

Reasons

1. Scope of the judgment of this court;

Of the facts charged in the instant case, the lower court dismissed the public prosecution and sentenced the Defendant guilty (including innocence in the grounds) as to the remainder of the facts charged. Since the Defendant appealed on the guilty part and the prosecutor did not appeal on the dismissal of public prosecution, and the dismissal of public prosecution was separated and confirmed as it is, it was excluded from the scope of

2. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

A) In relation to the crime of indecent act by compulsion in the lower judgment, the Defendant did not sparly use the victim C or gather the fingers in the victim’s resistance.

B) In relation to the crime of interference with business in the holding of the court below, the defendant did not want to see the victim’sO by hand.

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (one year and six months of imprisonment) is too unreasonable.

(b) Prosecutors;

1) Legal principles

Inasmuch as the attitude of similar rape is similar to that of indecent act by compulsion, it is necessary to recognize a habit of indecent act by compulsion.

2) Unreasonable sentencing

The sentence imposed by the court below against the defendant is too uneasible and unfair.

3. Determination

A. As to the defendant's assertion of mistake of facts

1) As to the crime of indecent act by compulsion in the judgment below

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., (i) the victim C’s statement is consistent, specific, and consistent in relation to the Defendant’s act, content of damage, the victim’s perception and response, the situation before and after the crime, and (ii) CCTV installed in Egrona cannot find out the circumstances that the victim made a false statement; (iii) the Defendant’s CCTV was taken by a head consistent with the victim’s statement, such as the victim’s knee kne kne kel kel kel kel kel kel kel kel kel kel kel kel kne, etc.; and (iv) the fact that the victim was treated at the hospital in the instant case, as stated in the judgment of the court below, is sufficiently recognized.

2) As to the crime of interference with business in the judgment below

According to the statement of the victimO, the fact that the defendant tried to see the victim'sO is sufficiently recognized as stated in the judgment of the court below.

3) Therefore, this part of the Defendant’s assertion is without merit.

B. Regarding the Prosecutor’s assertion of misapprehension of the legal principle

1) Facts concerning similar rape of this case

On November 15, 2015, around 15:30 on November 7, 2015, the Defendant: (a) accumulated the victim’s e-mail in Geumcheon-gu Seoul Metropolitan Government D, or the victim’s 304 surface room above the third floor above the floor, and (b) opened the victim’s scambling and scambling the fingers into the victim’s resistance; and (c) laid the fingers into the victim’s resistance, and

2) The judgment of the court below

The court below found the Defendant not guilty of the charges on the ground that the assault or intimidation of similar rape constitutes an act of assault or intimidation to make it impossible or considerably difficult to resist the victim, and cannot be punished as a crime of similar rape, which is similar to an act of assault or intimidation. The court below found the Defendant not guilty of the charges on the ground that it is difficult to deem that the Defendant committed the above assault or intimidation.

3) Determination of the immediate deliberation

In light of the following circumstances, the legal principles of the so-called indecent act by compulsion, namely, “the crime of indecent act by compulsion” includes not only the case where an indecent act is committed after the other party makes it difficult to resist by assault or intimidation, but also the case where the act of assault itself is deemed an indecent act,” which also applies to the crime of similar rape. Therefore, it is reasonable to deem that the crime of similar rape is established in the case of the act of quasi-Rape like this case. Accordingly, the prosecutor’s argument in this part

A) Articles 297 and 298 of the Criminal Act use the same language "in the course of violence or intimidation with respect to rape and indecent act by compulsion." It is understood that violence or intimidation in the crime of rape under Article 297 of the Criminal Act should be "to the extent that it makes it impossible or considerably difficult for the victim to resist (see, e.g., Supreme Court Decision 2006Do5979, Jan. 25, 2007)." In the crime of indecent act by compulsion under Article 298 of the Criminal Act, violence or intimidation in the crime of indecent act by compulsion under Article 298 of the Criminal Act should be "to the extent that it makes it difficult for the victim to resist (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002). This is interpreted by taking into account the attitude of the act of each of the above crimes, the degree of legal interests infringed, and the difference in statutory penalty following it.

B) However, punishing a indecent act by using violence or intimidation that makes it difficult to resist the victim's resistance, but rather, punishing a indecent act by using violence or intimidation is because the victim cannot substantially resist the indecent act that he/she could have anticipated. As such, the purport of punishing the indecent act by nature is also reasonable, since it is also reasonable to punish the indecent act by nature. Thus, in a case where a quasi-Rape was committed, if it is deemed that it would have been the same as that of violence or intimidation that would make it impossible or considerably difficult to resist the victim, there is no reason not to punish the indecent rape as a crime of similar rape. In addition, in a case where a quasi-Rape was committed by nature that makes it impossible for the victim to resist or make it considerably difficult to resist the victim as a result, it can be evaluated that the victim cannot resist substantially and thus makes it impossible or considerably difficult to resist the victim.

C) In addition, Article 297 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012) provides that "a person who commits rape by assault or intimidation was punished by imprisonment for a period of not less than three years," and Article 298 provides that "a person who commits an indecent act against another by assault or intimidation shall be punished by imprisonment for not more than ten years or by a fine not exceeding 15 million won" with respect to the crime of indecent act. However, similar acts such as inserting sexual intercourse into the inside of the body such as mouth and anus shall be punished by assault and intimidation and an dynamic act, and if such acts were committed by assault and intimidation, the illegality thereof shall not be deemed to have been reduced compared to rape (see, e.g., Supreme Court Order 201Hun-Ba54, Nov. 24, 2011).

D) Furthermore, the court below stated that the crime of quasi-Rape as in the instant case can be punished as a crime of indecent act by force. However, the court below stated that there is little possibility that the punishment corresponding to the act of quasi-Rape may not be imposed by ten years since the punishment may be imposed. However, in cases where the crime of quasi-Rape falls under the requirements for mitigation of rape rather than the requirements for aggravation of the crime of indecent act by force, such as the crime of rape and the crime of indecent act by force, in principle, it is impossible to recognize the crime of quasi-Rape and the crime of indecent act by force, unless there is a qualitative difference in the nature of the crime, such as the crime of rape and the crime of indecent act by force, unless there is a change in the indictment. However, as long as it can be recognized without a change in the indictment, it is difficult to accept the reasons mentioned above.

4. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, under Article 364 (6) of the Criminal Procedure Act, the guilty part of the judgment of the court below (including the acquittal part in the reason) is reversed without examining the defendant and the prosecutor's assertion of unfair sentencing, and the following is

【Grounds for the Judgment of the Supreme Court】

Criminal facts and summary of evidence

The summary of the facts constituting an offense recognized by this court and the evidence thereof is to be cited in accordance with Article 369 of the Criminal Procedure Act, except for replacing the facts constituting an offense of "2016, 14" to the facts charged under Article 3-b. 1 of the above Article 3-3(b).

Application of Statutes

1. Relevant laws and the choice of punishment for the crime;

Article 297-2 of the Criminal Act (the point of similar rape), Article 347(1) of the Criminal Act (the point of fraud, the choice of imprisonment), Article 350(1) of the Criminal Act (the point of conflict, the choice of imprisonment), Article 314(1) of the Criminal Act (the point of interference with business, the choice of imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Provided, That the proviso of Article 42 of the Criminal Act shall apply to the crime of similar rape in judgment)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act (the penalty heavier than the punishment shall be aggravated)

1. Order to complete programs;

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

1. An order for disclosure or notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

Reasons for sentencing

The fact that there is no history of sexual assault against the defendant, the health of the defendant is not good, and the rest of the victims except the victim'sO do not want the punishment of the defendant by agreement is favorable to the defendant.

On the other hand, the defendant had a number of criminal records including criminal records of the same kind of crime such as fraud and attack, and the defendant committed all the crimes of this case during the repeated crime period including committing fraud at least four months after the execution of punishment for the crime of violation of the Punishment of Violences, etc. Act (joint conflict) in the judgment of the court below. The crime of this case was committed by all of the crimes of this case during the repeated crime period. The crime of this case was committed by the defendant humping the victim C, taking hand over the victim under the name of loan from the victim mountain and loan company, taking the money from the victim h et al., showing bad character and behavior, giving the victim h et al. who run the flood bank and interfere with the business of the victim h et al., and the crime was very heavy liability for the crime of similar rape, and the victim C suffers a considerable physical and mental pain due to the crime of similar rape, rather than denying the crime of similar rape, it does not seem to be disadvantageous to the defendant.

In full view of the above circumstances and the Defendant’s age, character and conduct, environment, family relationship, motive, background, means and consequence of the crime, etc., various conditions of sentencing specified in the argument of the instant case, including the circumstances after the crime, and the scope of recommended sentences (one to four years of imprisonment) based on the sentencing guidelines established by the Supreme Court Determination Committee (one to four years of imprisonment) and sentence as ordered.

Registration of Personal Information

Where a conviction on a crime of similar rape in a judgment that is subject to registration becomes final and conclusive, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to Article