(영문) 서울고등법원 2016.10.6.선고 2016노1609 판결

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours against the defendant.In the facts charged in this case, the defendant shall be acquitted for violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts, such as deceptive means) stated in attached Table 1-3.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Of the facts charged in the instant case, the remainder except for paragraph 9-6 of the attached Table No. 9 is practically restricted by the Defendant’s exercise of the right to defense due to unspecified persons on the date of the crime, and thus constitutes illegal

2) The Defendant did not commit an indecent act against the victims in the same manner as indicated in the instant facts charged. Nevertheless, the lower court convicted the victims of the instant facts charged on the basis of the statements made by the victims with no credibility. In so doing, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of

3) In light of the relationship between the Defendant and the victims, the background of physical contact, and the specific form of conduct, the remainder of the facts charged in the instant case except for Nos. 1-3, cannot be deemed as significantly infringing on an individual’s sexual freedom. From the perspective of ordinary people, it does not constitute an act causing sexual humiliation or aversion to the extent that it can be evaluated as an indecent act from the perspective of ordinary people, and thus, it cannot be deemed as constituting “indecent act” as prescribed by the Act on the Protection of Children and Juveniles against Sexual Abuse. Furthermore, even in light of the method and degree of indecent act, it cannot be deemed that the Defendant had

4) In light of the fact that the place in which the instant case occurred was an open space, such as a corridor, and most of the cases occurred while being accompanied by another student, the Defendant cannot be deemed to have committed an indecent act against the victims by “defensive force”.

B. Unreasonable sentencing

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

2. Judgment on misconception of facts or misapprehension of legal principles

A. As to the assertion that the facts charged are not specified

1) The facts charged should be stated clearly by specifying the date and time, place, and method of a crime. As such, the time and time of a crime must be stated to the extent that it does not conflict with the time and time of double prosecution or prescription, and the purport of the law demanding the specification of the facts charged by such elements is to facilitate the exercise of the defendant’s right of defense. As such, the facts charged is sufficient if the facts constituting the crime are stated to the extent that it is recognizable from other facts by comprehensively taking account of these elements, and even if the date and time, place, etc. of the crime are not specified in the indictment, it does not go against the extent mentioned above, and if it is deemed that the general indication is inevitable in light of the nature of the facts charged, and it does not interfere with the defendant’s right of defense (see Supreme Court Decision 2015Do1274, Apr. 9, 2015).

2) Of the facts charged in this case, the remaining part of the indictment except for the claim No. 9 of the annexed Table No. 9 (hereinafter referred to as "the corresponding part") is relatively generalized. However, the Defendant’s indecent act against the victims was committed on a regular basis during the victim’s entrance into the school. It seems that it was inevitable to indicate the date and time of the crime inevitably because it was difficult for the victims to state the damaged facts at a certain point after a few months or after a few years of the occurrence of the crime. Moreover, it is clear that the date and time of the crime specified in the corresponding part have been indicated to the extent that it does not go against double prosecution or prescription, and it can not be deemed that the Defendant violated the Defendant’s right to defense because it can be distinguished from other facts of crime through the place of the crime or the form of the crime. The judgment below is justifiable, and there is no error by misapprehending the legal principles on the specification of the facts charged, thereby affecting the conclusion of the judgment. The Defendant’s allegation in this part of

B. Whether an act identical to the facts charged in the instant case was committed

1) The judgment of the court below

The court below, under the title 3-B of the "decision on the argument of the defendant and his defense counsel", judged that the statements of the victims, who correspond to the facts charged in the case, are reliable, and found guilty of all the facts charged in the case, considering the circumstances acknowledged by the evidence adopted by the court below.

2) Determination of the immediate deliberation

A) Determination on the remainder excluding paragraph 3 of [Attachment 5] No. 1]

If the court below and the court below found the following circumstances that can be additionally recognized by the evidence duly adopted and investigated by the court below (excluding the part as to paragraph (3) Nos. 1-3 of the annexed crime list), it is just that the court below found the defendant guilty of the remainder except for paragraph (3) of the annexed crime list No. 1-3, and there is no error of law which affected the conclusion of the judgment by misunderstanding facts or misunderstanding legal principles.

(1) The victims, as middle-term students aged between 13 and 15, have consistently stated their major part concerning the fact of damage in an investigative agency and a court of original instance. The victims have specifically stated the place of the crime that they memory, the form of the crime, their response methods, etc., and they cannot be seen as having responded to the leading of the questioner, or having responded to the direction that the questioner wants, such as correcting the erroneously understood parts of the victim, or provoking the shortage of his memory.

② The Defendant’s defense counsel asserts to the effect that the Defendant’s investigation into the actual condition of sexual assault prepared by the police is the fact that not only the Defendant’s indecent act but also the indecent act committed by the E Middle School (hereinafter “E”) by the questionnaire conducted around August 2015, but also the indecent act committed by the Defendant in the subway, such as the Defendant’s name-free box, his addresser, and sports teachers, etc. in the subway. As such, even based on these facts, the above survey does not seem to have led the victims to make specific answers on the premise that the Defendant’s sexual indecent act is conclusive.

③ From Jun. 2015, the Victim F, who was a counseling teacher, and the Defendant’s indecent act, did not want his parents or other people to know about his indecent act from the Defendant. From Sept. 2015, 2015, the Victim F stated that if the Defendant transferred to another school on or around Sept. 1, 2015, he would be able to cause damage to another student, and the victim F reported to the police on Aug. 12, 2015. As such, the Victim F reported the victim F’s injury to another student. As such, the Victim F reported to the investigative agency on the ground that the victim’s injury could be seen as having been known to the other student, and the EF would be replaced by another person on Sept. 1, 2015 (the Defendant F would be dismissed from taking into account the following circumstances: (i) the victim F’s statement that he did not appear to have any specific credibility during the victim’s statement; (ii) the victim F’s entire statement that he did not start with the victim’s statement.

B) Determination as to Section 1-3 of the annexed list of crimes

(1) Summary of this part of the facts charged

From January 9, 2015 to June 16, 2016, the Defendant discovered that the victim F, who was present in order to take a breabing and breabing training course, was in front of the school room, and entered into the school room to purchase an urban development in order for the victim F, who attended in order to take a breabing and breabing care course during the school period. The Defendant immediately closed the entrance and repeated the entrance in order for the victim to enter the school room to be called as “Isle, Isle, and Isle,” and repeated the victim’s face by both hand, and kis the victim kis, and the victim kids, hhing the victim’s face, and kid the victim’s kibing and kid the victim’s force.

(2) Determination

The recognition of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads to a judge to have the degree of uncompetence in a reasonable doubt. As such, in a case where the prosecutor’s proof does not sufficiently reach the extent of ensuring such conviction, the interests of the defendant should be determined even if there are suspicions of guilt, such as contradictions in the defendant’s assertion or defense or incompetences, even though the defendant’s assertion or defense is groundless. Furthermore, the aforementioned strict proof includes all specific facts constituting a crime as stated in the indictment by the prosecutor. In particular, the date and time of the crime specified in the facts charged is the main object of the defendant’s exercise of his/her right to defense, and it should be recognized through strict proof, and it should not be recognized that there is proof of facts constituting a crime on the ground that there is a probability that the prosecutor committed a crime in another time even if such proof is insufficient (see Supreme Court Decision 2010Do148

Examining the following circumstances acknowledged by the record in light of the legal principles as seen earlier, it is difficult to view that the sole evidence submitted by the prosecutor alone was proven to the extent that there is no reasonable doubt that the Defendant committed an indecent act against the victim F as stated in this part of the facts charged between January 9, 2015 and January 16, 2015. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment. The Defendant’s allegation in this part is with merit

① On January 16, 2015, 2015, the victim F stated in the lower court that the date of this part of the facts charged was “when he/she had breabbbing lessons” and stated to the effect that “he/she made breabing around January 16, 2015, which is the date of the occurrence of the instant case.”

A person shall be appointed.

③ As seen earlier, the victim stated in the lower court that the date and time of this part of the facts charged is related to the curriculum of the business of manufacturing breabing, but according to the after-school classes record, this part of the crime cannot be ruled out that there was a possibility that this part of the crime would occur at a time other than that specified in this part of the facts charged. In addition, the victim F stated that “the time and time of this part of the facts charged was stated in July 2014 or January 2015 when the investigative agency did not accurately memory this part of the facts charged,” and stated that “the time and time of this part of the facts charged was “the time when breabing breabing breathing breathing breath breath breath breath breath 2015.” Thus, there is no evidence as to this part of the

C. As to the assertion that it does not constitute an indecent act

1) “Indecent act” means an act that objectively causes a sense of sexual humiliation or aversion to the general and average person in the same place as the victim, and goes against good sexual morality, and thus infringes on the victim’s sexual freedom. Whether an act constitutes an indecent act ought to be determined by comprehensively taking into account the victim’s intent, gender, age, relationship between the offender and the victim, circumstances leading to the act, specific form of the act committed against the victim, objective situation surrounding the act, and the sexual moral sense of the age (see, e.g., Supreme Court Decisions 2009Do13716, Feb. 25, 2010; 201Do7164, Jan. 16, 2013). Meanwhile, it cannot be deemed that there is an essential difference depending on the body part of the victim in an indecent act against a woman (see, e.g., Supreme Court Decision 2004Do522, Apr. 16, 2004).

2) The lower court also asserted the same purport as this part of the grounds for appeal. The lower court rejected the Defendant’s assertion on the following grounds: (a) comprehensively taking account of the circumstances acknowledged by the evidence selected in its reasoning under the title of “determination on the argument of the Defendant and his defense counsel”; (b) the Defendant’s act objectively constituted an indecent act that causes sexual humiliation or aversion to a general and average person who is in the same position as the victim; and (c) constitutes an indecent act contrary to good sexual morality.

Considering the following circumstances that can be additionally recognized by the lower court and the appellate court’s duly adopted and examined evidence, the Defendant’s act is deemed to constitute an indecent act, and the lower court’s intentional act may be recognized as having been committed by the Defendant. The lower court’s judgment is justifiable in accordance with the aforementioned legal doctrine and does not err by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment. This part of the Defendant’s assertion is without merit. (i) According to the relationship, age, situation at the time of the act, contact, method and frequency of the act of the Defendant, etc. of the victims, as indicated in the instant facts charged, it is difficult to view that the Defendant’s repeated contacts with the victims, such as her parents, students, and educational persons, such as her parents, cannot be seen as constituting an unlawful act, and thus, it cannot be seen that the Defendant’s act constitutes a violation of the victim’s physical and mental identity and sexual character without any specific sexual harassment or physical influence.

D. As to the assertion that it does not constitute a force

1) The term “defensive force” means a force sufficient to suppress the victim’s sexual free will, and is not tangible or intangible, and it is possible to use not only assault and intimidation but also social, economic, and political status or right of the offender. Whether an indecent act was committed by force should be determined by comprehensively taking into account various circumstances, including the following: (a) details and manner of the act committed against the victim; (b) details and degree of the force exercised; (c) type of the offender’s status and right; (d) type of the offender’s age; (e) relationship between the offender and the victim; (c) degree of infringement on the victim’s sexual free will; and (d) circumstances at the time of the crime (see Supreme Court Decision 2011Do7164, Jan. 16, 2013).

2) Examining the following circumstances, which can be recognized by the lower court and the court’s duly adopted and investigated evidence, in light of the legal principles as seen earlier, it can be sufficiently recognized that the Defendant committed an indecent act against the victims by force. The lower court’s judgment to the same purport is justifiable, and there is no error by misapprehending the facts or by misapprehending the legal principles, thereby affecting the conclusion of the judgment. The Defendant

① At the time of committing the instant crime, the Defendant was the principal of E as an adult male male, and the victims were female middle school students aged between 13 and 15.

② The instant crime occurred within a building E, such as inside a school room or corridor, etc. of the E, and the crime place was the place where the Defendant, the principal of the E, was authorized to guide and supervise students on a daily basis.

③ In light of the relationship between the principal of the school and teachers and students, it is difficult for the principal to inform or report the fact of the sexual indecent act to other persons, including teachers, due to concerns over the disadvantages and social isolation in the school, etc. Furthermore, it is difficult for the principal to withdraw measures, such as filing a report by immediately surfaceing the Defendant’s indecent act, because the teachers abutting on the fact of the sexual indecent act by the student are also under the direction and supervision of the principal.

3. Conclusion

Therefore, since the defendant's assertion of mistake of facts is partially reasonable, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment is again rendered as follows

another judgment)

Criminal facts and summary of evidence

The summary of the facts constituting an offense recognized by this court and the evidence thereof shall be cited in accordance with Article 369 of the Criminal Procedure Act, except where the facts constituting an offense and the summary of the evidence are used as follows.

[Supplementary Use]

From November to December 2013, the Defendant committed an indecent act against nine victims from March 2013 to July 2015, 2015, in the E Middle School located in Nam-gu Incheon Metropolitan City, by entering the corridor into the school room, making the victim F, who was in the process of the corridor, and using the hallway as a hand, such as using the strings of the above victim, etc., on several occasions. However, the Defendant committed an indecent act against nine victims from July 2013 to July 2015, in total against children and juveniles. Accordingly, the Defendant committed an indecent act by force.

Application of Statutes

1. Article applicable to criminal facts;

Article 7(5) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and Article 298 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (1) 3-2 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of the following circumstances: (a) proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse [the Defendant’s age, occupation, social relation, criminal record, and the risk of recidivism (no prior to and after the record); (b) the circumstances leading to the instant crime; and (c) the benefits and preventive effects expected by the instant disclosure order or notification order; and (d) disadvantages and side effects therefrom, there is a special circumstance that the disclosure and notification of the Defendant’s personal information should not be made; (b) the degree of the type of force the Defendant exercised against the victims; and (c) the degree of indecent conduct is relatively minor; and (d) the Defendant has no record of criminal punishment. Some of the victims (victim F, AG, R, J, L) agreed with the Defendant, and the victims and their families do not want to be punished against the Defendant.

However, the crime of this case is committed repeatedly by the defendant, the principal of middle school, committed an indecent act on 23 occasions in the school. In light of the circumstances and frequency of the crime, and the relationship between the defendant and the victims, etc., the quality of the crime is very poor. Although the defendant was in a position to protect and supervise the victims who have been growing, he committed an indecent act by taking advantage of such status. It is inevitable to punish the victims with severe punishment corresponding to the possibility of criticism because the trust between the students and the parents was unfolded. The victims ageed due to the crime of this case appear to have been unlikely to have a considerable sense of sexual humiliation, and it seems that there was a negative impact on the formation of the sexual identity and values of the victims who have been familiar mentally and physically. In addition, all the sentencing conditions as shown in the argument of this case, such as the defendant's age, character and behavior, and environment, and the recommended sentencing range of guidelines for the enactment of the Criminal Procedure Committee, etc.

Where a judgment on registration of personal information 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 is obligated to submit personal information to the competent agency pursuant to Article 4

The acquittal portion

The summary of this part of the facts charged is as indicated in the above 2-B(2)(b)(1). However, this part of the facts charged is found not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act since it falls under the case where there is no proof of crime as stated in the above 2-B(2)(2).