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(영문) 부산고등법원 2014.04.16 2014노30
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

except that, for three years from the date this judgment becomes final and conclusive.

Reasons

1. The summary of the grounds for appeal (defendants) is unreasonable to order the Defendant to take a course in the sexual assault therapy.

2. Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that “When a court declares a conviction against a person who has committed a sex offense against a child or juvenile, it shall concurrently impose an order to attend a lecture or order to complete a sexual assault treatment program for a period not exceeding 500 hours: Provided, That the same shall not apply to special circumstances where an order to attend a lecture or order to complete a program is not possible.”

However, the following circumstances acknowledged in the record are: (a) the Defendant appears to be at the beginning to close and reflect his mistake, and thus does not seem to pose a serious risk of recidivism; (b) the Defendant was at the time of each of the instant crimes with a mental disorder Grade 2, with the disabled person with mental disability, having weak ability to discern things or make decisions; (c) according to the diagnosis of Ma with the mental disorder, the Defendant is deemed to have a “special circumstance,” where the Defendant is unable to impose an order to attend a lecture,” taking into account all the circumstances, including the following: (a) the Defendant is not capable of voluntarily able to keep away from his/her family; (b) it is impossible for him/her to conduct a long-term education for sexual violence due to lack of real verification ability; (c) the patient’s military status may worsen; and (d) the Defendant’s mother’s 85 years of age to implement an order to attend a lecture is the one in which

3. The decision of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act as the defendant's appeal is reasonable, and the judgment below is reversed and it is again decided as follows.

Criminal facts

The summary of facts constituting an offense and evidence recognized by this court shall be as stated in the corresponding column of the original judgment.

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