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(영문) 서울고등법원 2019.06.25 2019노40
아동ㆍ청소년의성보호에관한법률위반(음란물제작ㆍ배포등)등
Text

The judgment below

The guilty part shall be reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be 40 hours.

Reasons

1. The lower court dismissed a public prosecution regarding intimidation, and only the Defendant appealed against the guilty portion of the lower judgment and filed an appeal.

Therefore, since the dismissal part of public prosecution is separated and confirmed as it is, only the guilty part of the judgment below constitutes the scope of the judgment of the court below.

2. Summary of grounds for appeal;

A. In the case of attempted indecent act by compulsion, the crime of indecent act by compulsion was constituted in the form of an indirect principal. The crime of indecent act by compulsion cannot be deemed to have been initiated unless the user and the victims refuse the Defendant’s demand and did not proceed to commit an indecent act by compulsion.

(Legal Scenarios argument). (b)

1) The Defendant did not make a victim S or video call (deficial assertion) in light of the content and purport of the statement of grounds of appeal as of January 29, 2019, this part of the appeal is deemed to be the grounds for appeal. 2) The photograph capturing a video call does not constitute “video” or “video” as prescribed by Article 2 subparag. 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse.

The term "fusing a video call" does not constitute "production" under Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse.

Unless a video call is stored in a viable form, the crime cannot be deemed to have been committed.

(Legal Sceio No. 3)

The sentence of the lower court on the assertion of unfair sentencing (two years and six months of imprisonment) is too unreasonable.

3. Determination

A. The ex officio determination prosecutor applied for amendments to the indictment to the effect that “the face and breast part in the Switzerland” in Article 3(a) of the facts charged is “the breast part in the Switzerland off” and “the breast part in the Switzerland off” in Article 3(a) of the facts charged, and the court of the trial permitted this.

Accordingly, the judgment of the court below can no longer be maintained as the subject matter of the judgment of the court of the party is changed.

However, the defendant's legal principles and mistake of facts.

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