(영문) 대전지방법원 2014.12.3.선고 2014노1745 판결

However, the execution of the above punishment is suspended for two years from the date this judgment became final and conclusive.In the case of indecent act by compulsion among the facts charged in this case, it is acquitted

Reasons

1. Summary of grounds for appeal;

(a) Fact-finding;

The Defendant did not commit any indecent act other than E’s viewing and selling in the course of smoking tobacco smoking, and the lower court convicted the Defendant of the facts charged of this case on the sole ground of the accusation of the complainants without credibility, even though there was no contact with F, on the basis of the fact that the Defendant did not have any credibility. In so doing, the lower court erred by misapprehending the fact that the Defendant

B. Unreasonable sentencing

The punishment sentenced by the court below (ten months of imprisonment) is too unreasonable.

2. Judgment on the defendant's assertion of mistake of facts

A. Summary of the facts charged in this case

The defendant is a person who has worked as a regular position in the factory of the company "D" in Chungcheongnam-gun, Chungcheongnam-gun, and E (n, 19 years of age) and F (n, 20 years of age) are employed by the above company as a daily employee.

On June 12, 2013, at around 09:10, the Defendant discovered E and F, who were smoking tobacco in a strings behind the above D factory building, and Dan Don Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad Mad ma for about three seconds by hand, and then, the Defendant committed an indecent act by force against F, who was next to the Defendant, by Dan her hand, committed an indecent act by force on the part of F, the upper part of the upper part of F, which was the right side of the complaint, for about three seconds, and as Dan n son's left side by hand.

(b) Relevant legal principles;

An indecent act refers to an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether an indecent act constitutes such an act shall be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the actor and the victim, circumstances leading to such an act, specific circumstances leading to such act, the surrounding objective situation, and the sexual morality of the time (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002). In the case of so-called “act of indecent act” in which the assault itself is deemed an indecent act, the act itself committed for the purpose of sexual humiliation, stimulation or satisfaction, and in which the sound common public has a mark to view that the act of indecent act would cause the victim to feel sexual humiliation or hate, at the same time, it should be determined that the act of indecent act was sexually realized in the area of the other party’s sexual humiliation, and that it should be determined that the other party’s sexual humiliation or aversion is not a subjective act.

The following facts are acknowledged based on the evidence duly admitted and investigated by the court below.

1) At the time of the instant case, the complainants had been aware that the Defendant was the regular manager of the instant company, and around June 12, 2013, the complainants were under way in smoking tobacco in behind the instant company’s building around 09:10.

3) The Defendant, who worked in the instant company before the Defendant’s duplicating to the complainant, had reported first that E and F smoke would smoke. At the site, there are many tobacco butts, and the Defendant talked with the complainant in the manner that the wals would be fry and smoking, and the wals were smoking tobacco.

4) When J passes through the complainant, the Defendant said that she would have avoided tobacco to the complainants, but F and E had avoided tobacco without any match.

5) At the time of the instant case, the Defendant met E with “Isson’s title?” The Defendant added E, rhythm, rhythm, rhym, hym, hymp, hymp, 3 seconds, hymp, hyp, hyp, and hyp, hyp, and hyp, 3 to 4 seconds. 6) at the time of the instant case, E and F were almost facing the Defendant’s left hand, and F was hyp, hyp, hyp, and hyp, hyp, hyp, and hyp, hyp, hyp, hyp.

7) After having suffered damages, the complainant talks about the fact that the Defendant was sected by the employees, such as N who work together with the victim, and 0 the president of the company found the complainants, and the complainants knew about the fact that the complainants were sected by the defendant, even if the president, and the complainants were the president. Ultimately, the Defendant was subject to apology against the complainants.

8) Since the instant case, both the complainants were limited to the instant company, but the complainants received the written complaint to the police on June 21, 2013, which was nine days after the date of the instant case. 9) The complainants directly stated in the written complaint that “I would like to cause a sense of shame and punish them, and submit the written complaint.” However, the complainants prepared a written complaint as notified by the police station.

D. Specific determination

1) The Defendant first claims that the complainant did not have any physical contact other than the fact that the complainant, at the place in which the J was smoking tobacco, said that “I would well draw the back of the cigarette,” and that I would like to leave the site, and that I would like to say that I would not have any other physical contact than the fact that I would see the tobacco, after doing so.

2) We find it difficult to accept the argument that the complainant's statement is inconsistent and partly contradictory as to whether the defendant met the F's view, whether the F's left arms or not, and whether the F's left arms are sold or not. However, it is difficult to view that the complainant's false statement was made by the complainant, since the defendant is consistent and consistent with the facts that the defendant met, and the F's selling is consistent and mutual statement is consistent, and it is difficult to view that the complainant's false statement was made by the defendant, and that the defendant was only once viewed as E, and that there was no contact with the F.

3) Even if the Defendant’s act was acknowledged as described in the facts charged, it does not constitute an indecent act subsequent to the Defendant’s act of assault or intimidation to the extent that it would make it difficult for the complainant to resist, thereby making it difficult to resist. As such, the act of assault itself constitutes an indecent act.

It should be reviewed as a separate issue about whether it falls under so-called 'indecent act'.

4) However, the following circumstances acknowledged by the above facts and records are difficult to see that this case occurred after the building of the company of this case around 9:10 minutes, and that this case occurred at an open place for the company's work. ② The situation in which J, an employee of the company, gave lessons to tobacco to the complainants, and the defendant also seems to have been different from the above facts charged. Such circumstance is confirmed by the complainants' statements. ③ The defendant's intentional act in the situation where E and F name were the defendant, and it is difficult to see that E and F were exchanged at the same time. ④ Even if the defendant's act of causing sexual humiliations over 5 seconds, it is hard to see that the defendant's act of causing sexual humiliation was contrary to his/her own right to sexual humiliation, and thus, it is hard to see that the defendant's act of causing sexual humiliation is more objectively against the defendant's right to sexual humiliation and thus, it appears that he/she did not have any other act of causing sexual humiliation.

3. Conclusion

Therefore, the defendant's appeal is reasonable, and the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts and summary of evidence

Except for deletion of the facts constituting the offense of this case and the summary of evidence [2013 order3418], the facts constituting the offense of this case and the summary of evidence of this case are as stated in each corresponding column of the judgment below, thereby citing them as they are in accordance with Article 369 of the

Application of Statutes

1. Article applicable to criminal facts;

Article 355(1) of the Criminal Act (the point of embezzlement and the choice of imprisonment)

1. Suspension of execution;

The reason for sentencing of Article 62(1) of the Criminal Act is that the crime of this case is committed under the circumstances in which the amount of damage is not significant since it was arbitrarily disposed of and embezzled on the part of the company that was used by leasing 2s of the market value equivalent to KRW 110 million, which is the market value of the victim Korean Capital Stock Company.

However, when the defendant goes against his mistake, he deposits additional money to the victim, and agreed that the victim does not want the punishment for the defendant, the defendant seems to have been faced with his mistake and the strictness of punishment through confinement life for six months, and the fact that there is no previous error, etc. are favorable circumstances, and the defendant's age, character and conduct, environment, motive and circumstance leading to the crime of this case, circumstances before and after the crime, etc. are considered as a whole and all other circumstances constituting the conditions of the sentencing of this case as shown in the records, including the defendant's age, character and behavior, environment, motive and circumstance leading to the crime of this case, and circumstances before and after the crime.

The summary of this part of the facts charged is the same as that of the above 2. A, which constitutes a case where there is no proof of a crime as seen in the above 2.D., and thus, the acquittal is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act.