Defendant 1 and two others

Defendant 1 and one other and the prosecutor

United States of America

Attorney Noh Round (for the defendant)

Seoul Central District Court Decision 2009Gohap50 Decided April 3, 2009

The part of the judgment of the court below against the defendant 1 and 3 shall be reversed.

Defendant 1 shall be punished by imprisonment for four years, and imprisonment for three years and six months, respectively.

The number of days of detention prior to the pronouncement of the original judgment shall be 102 days each included in the above punishment against the defendant 1 and 3.

Defendant 1 and 3 shall provide perusal information for each five years.

Of the facts charged against Defendant 1 and 3, the prosecution against the violation of the Act on the Protection of Juveniles against Sexual Abuse (Juvenile Rape, etc.) shall be dismissed.

The prosecutor's appeal against the defendant 2 is dismissed.

1. Summary of grounds for appeal;

A. Grounds for appeal by Defendant 1 and 3 (Defendant 2 of the Supreme Court Decision)

(1) misunderstanding of facts or misapprehension of legal principles

Despite the fact that the Defendants were naturally sexual intercourses under the consent of the victim Nonindicted 2, and did not have sexual intercourses or rapes by force, the lower court erred by misapprehending the legal doctrine that the Defendants had sexual intercourses or rapes by force, thereby adversely affecting the conclusion of the judgment.

(2) The assertion of unreasonable sentencing

In light of the various sentencing factors of this case, the sentence of the judgment of the court below (defendant 1: 4 years of imprisonment, and defendant 3: 6 months of imprisonment) is too unreasonable.

B. Grounds for appeal against the prosecutor's defendant 2

In light of the various sentencing factors of this case, the sentence of the judgment of the court below against Defendant 2 (two years of imprisonment and six years of suspended execution) is too uneastable and unfair.

2. Ex officio determination

A. Location of the issue

Of the facts charged in this case against Defendant 1 and 3, the charge of rape or quasi-indecent act against the victim non-indicted 1 (the victim of the judgment of the Supreme Court, 14 years old) is an offense falling under Article 7(1) through (3) of the Act on the Protection of Juveniles from Sexual Abuse (hereinafter “Juvenile Protection”), and thus, cannot be prosecuted against the victim's express intent under the proviso of Article 16 and subparagraph 1 of the same Article of the Act on the Protection of Juveniles from Sexual Abuse. While Non-indicted 1 appears in the court of the court of the court below and withdrawn his wish to punish the defendant as a witness, there was no clear expression of his/her parent's intent in this regard. In such a case, it is problematic whether the prosecution should be dismissed solely with the victim's express intent, or since the victim is a juvenile under the age of 19 years, it is whether the legal representative should dismiss the prosecution only with the consent

B. The judgment of the court below

In light of the above ideology, ① the principle of restricting the validity of a legal act by a minor shall be respected even in the case of a legal act in light of its ideology. Procedural acts are not related to cancellation and cancellation due to the need for procedural stability, so it is reasonable to deem that the sole procedural act of a minor is null and void, in principle, unless there is a provision that permits the Act for the sake of his/her own interest. ② The reason why a legal act was interpreted or prescribed as an offense subject to victim’s complaint is to strengthen the protection of the sexuality of a juvenile, which is the legislative purpose, by strengthening punishment, rather than to eliminate the role of a legal representative, such as a person with parental authority, from serving only the victim’s own will, and to exclude the protection of the sexuality of a juvenile who is an offense subject to victim’s legal representative’s punishment. ③ If a legal representative is interpreted or prescribed as an offense subject to victim’s complaint, then his/her legal representative may file a complaint independently regardless of his/her will, and thus, it is reasonable to interpret the Act as an unreasonable interpretation of the Act without consent of the victim’s punishment.

However, according to the records, it is evident that the victim non-indicted 1's above expression of intention not to punish him or her as above has no legal representative's consent, and there is no evidence to deem that there are special circumstances, such as the legal representative's death or other causes, and rather, even though the father who is the legal representative of the victim is alive, he or she seems to be aware of the existence of the case itself. Thus, in this case, each of the above parts cannot be dismissed solely by the victim non-indicted 1's expression of intention not to punish him or

C. Judgment of the court below

First of all, after examining the meaning and general standards of interpretation of the Criminal Code, whether it is limited to the legal representative’s consent as to “the victim’s express opinion” under the proviso of Article 16 of the Act on Protection of Juveniles from Sexual Abuse or whether it can be interpreted as having the validity of the victim’s expression of intention not to punish himself/herself regardless of his/her legal representative’s consent.

(1) Interpretation of the Criminal Act

㈎ 해석의 의미와 기준

The interpretation of the Criminal Code is a work to clarify the meaning of the language and text used for certain penal provisions and to clarify and clarify the scope of application of penal provisions for specific facts. Generally, the standard of interpretation is the literal interpretation, logical and systematic interpretation, subjective and historical interpretation, subjective and historical interpretation, objective and objective interpretation.

① Inasmuch as the starting point of the literary interpretation is all the text of the law, a judge is required to comply with the language and text of the legal text. ② logical and systematic interpretation is to take into account the systematic location and context of the entire legal system of the subject norm on the basis of awareness that the law constitutes a single unification. ③ subjective and historical interpretation is to find out what is the objective and intent that legislators intended to achieve through the process of enactment and amendment of the provision and discussions at the time of legislation. ④ objective and objective interpretation is not only to explain the historical meaning of the legal norm, but also to objectively interpret the meaning of the legal provision in accordance with the purpose of the law in order to apply the legal provisions to the given situation and the problem that arises.

㈏ 전체적, 종합적 해석방법

As the above interpretation criteria are mutually complementary and mutually complementary, it is not sufficient to interpret criminal laws only with one of them. Accordingly, statutory interpretation starts from the ordinary meaning of the text of the law, and establishes the scope of the possible meaning by examining the intent of legislators, the purpose of the law, the systematic relationship, etc. In other words, when prescribing penal laws, the legislators determine the regulatory area where the scope of application is to be embodied by a judge in the future through language. In this case, the regulatory scope is provided first by the ordinary expression of the language in which the relevant penal laws exist, but the judges should interpret specific penal laws by comprehensively taking into account the meaning and contents of other similar concepts, legislative history, the logical relationship with other penal laws, the legislative intent and purpose, etc.

㈐ 유추해석의 금지

In a case where there is no law applicable to certain facts, it is applied to finding out the legal provisions applicable to the facts most similar to those applicable to them. In the interpretation of penal provisions, if it deviates from the possible meaning of the text and language of the law, it is against the principle of no punishment without the law. In addition, the prohibition of analogical interpretation is applied mutatis mutandis to the provisions concerning the elements of all penal provisions and the penalties. If the scope of the punishment is limited to the grounds for the exclusion of illegality and responsibility or the grounds for the exemption of punishment, which is the grounds for the exclusion of punishment, limited application, the scope of punishment for the offender is expanded and the scope of punishment for the offender is disadvantageous to the offender. This result is the same as the analogical application of the elements of crime beyond the possible meaning of the text and language, and therefore, it is not allowed in violation of the principle of no punishment without the law (see Supreme Court en banc Decision 96Do1167, Mar. 20, 1

In this case, the proviso of Article 16 of the Act on the Protection of Juveniles from Sexual Exploitation provides that "no public prosecution against the clearly expressed will of the victim shall be instituted" falls under the conditions of passive prosecution, and if it is interpreted in a limited manner by requiring the consent of the legal representative, it would result in expanding the scope of punishment against the defendant, which would be disadvantageous to the defendant, so it does not violate the principle of prohibition of analogical interpretation.

【Application of Interpretation Criteria

㈎ 피해자의 명시한 의사의 의미 (문리해석)

① The crime of non-compliance with the intent of a victim under the proviso of Article 16 of the Act on Protection of Juveniles from Sexual Abuse is an offense against which a victim may not be punished if he/she expresses his/her intent not to punish him/her. In such cases, a juvenile victim is a person who may express his/her expressed his/her intent that the consent of his/her legal representative is necessary when the victim expresses his/her intention not to punish him/her. However, if the consent of his/her legal representative is interpreted as necessary when the victim expresses his/her intent not to punish him/her, his/her legal representative may punish him/herself against his/her will in contrast to the victim’s expressed intent even if the victim does not wish to punish him/her. Accordingly, unlike the phrase “no prosecution may be instituted against the clearly expressed intention of the victim,” rather than the expression “no prosecution may be instituted against

② Since a person who commits a penal provision is not a literary person or a judge but a general citizen of the society, an interpretation deviating from the ordinary expression method of the language and text makes it possible to exercise state punishment authority without providing legal stability to the general public. Therefore, going beyond the scope of interpreted meaning in the language and text is not a legal interpretation, but a creation of law or a new legislative act. General citizens are accepted as “the express intent of the victim” under the proviso of Article 16 of the Juvenile Sex Protection Act, and do not understand that the consent of the legal representative is included in the same. Thus, in the application of the proviso of Article 16 of the Juvenile Sex Protection Act, deeming the consent of the legal representative as necessary goes beyond the ordinary expression scope, and it is not permissible because it goes beyond the limit of interpretation and is an analogical interpretation prohibited by the Constitution.

㈏ 친고죄와 반의사불벌죄의 관계 등 (논리적·체계적 해석)

① The crime of offense subject to victim’s complaint and offense against one’s will is recognized as a serious exception to the State’s monopolyism, which does not allow a private person to take part in the criminal justice. As such, the Criminal Procedure Act sets a certain limitation in order to prevent the abuse of a private person’s intent in the criminal procedure through an offense subject to victim’s complaint, etc. In other words, a complaint may be cancelled before the rendering of a judgment in the first instance, and a person who cancels a complaint shall not file a new complaint, and also applies mutatis mutandis to the withdrawal of a declaration of intent which wishes to punish (Article 3). As such, the withdrawal of a declaration of intent which wishes to punish is identical to the revocation of a complaint

② Article 233 of the Criminal Procedure Act provides that the filing of a complaint or the revocation of a complaint against part of the co-offenders in an offense subject to victim’s complaint shall also take effect against the other accomplices, thereby preventing imbalance in punishment for the victim’s arbitrary intent. As to the application of the indivisible principle to the crime subject to victim’s complaint, there is a view that the crime subject to non-prosecution in an offense subject to victim’s complaint is the same as the crime subject to victim’s complaint. However, the crime subject to non-prosecution in an offense subject to victim’s complaint is a separate type of crime different from the crime subject to victim’s complaint. As such, inasmuch as Article 233 of the Criminal Procedure Act does not provide for the provisions that apply mutatis mutandis to the crime subject to victim’s complaint, unlike Article 232 of the same Act, it shall not be deemed that the crime subject to victim’s complaint is committed without applying the indivisible principle among the accomplicess who wish to punish or withdrawal of his wishing to punish (see Supreme Court Decision 93Do1689, April 26, 199

③ In a case involving an offense subject to prosecution on complaint, a legal representative has the right to independently file a complaint (Article 225(1) of the Criminal Procedure Act). However, in the case of an offense of non-violation of punishment, a legal representative is not expressly granted the right to independently express his/her intent. The legal representative’s right to file a complaint is an independent complaint regardless of whether the right to file a complaint is extinguished or not, according to Supreme Court precedents (Supreme Court Decision 99Do3784 Decided December 24, 1999). It is not meaningful that a legal representative may cancel a complaint made by the victim, or that a legal representative may effectively file a complaint only with the consent of his/her legal representative when the victim cancels the complaint after filing a complaint. Furthermore, if the victim’s consent is obtained from his/her legal representative on the ground that he/she is a juvenile, the victim’s right to express his/her legal representative on the ground that he/she is a juvenile, even though there is no explicit provision, and thus, the victim’s right to file a complaint may be excluded from the legislation or punishment of a juvenile.

④ Meanwhile, when a defendant who has a legal representative waives or withdraws an appeal under Article 350 of the Criminal Procedure Act, the reason why the consent of his/her legal representative is required is that the defendant who is a minor or incompetent person is subject to criminal punishment, and thus, it is intended to prevent unfair punishment due to a rush judgment. In the case of the proviso of Article 16 of the Act on Protection of Juveniles from Sexual Abuse, a juvenile indicates or withdraws his/her intent to punish the perpetrator as a victim, and thus, the legislative structure or logical structure of the provision differs. Therefore, the proviso of Article 16 of the Act on Protection of Juveniles from Sexual Abuse is interpreted similar to the provision of Article 350 of the Criminal Procedure Act, and the interpretation of the "victim's explicit intent" is limited to the case where the legal representative consents, barr

㈐ 청소년성보호법의 입법연혁 (주관적·역사적 해석)

① The Act on the Protection of Juveniles from Sexual Abuse was enacted by Act No. 6261 on February 3, 200. At the time, Article 10 of the Act on the Protection of Juveniles from Sexual Abuse does not provide for whether a juvenile is subject to victim's complaint by stipulating rape, indecent act by force. However, the Supreme Court (Supreme Court Decision 2000Do1391 Decided May 15, 2001) interpreted Article 10 as a crime subject to victim's complaint subject to victim's complaint under Article 306 of the Criminal Act by interpreting Article 10 of the Act on the Protection of Juveniles from Sexual Abuse as a crime subject to victim's complaint in consideration of the fact that Article 10 of the Act on the Protection of Juveniles from Sexual Abuse only provides for aggravated punishment against rape, etc. under the Criminal Act, and does not differ from the provisions of the Criminal Act.

② As the Act on the Protection of Juveniles from Sexual Abuse was amended by Act No. 7801 on Dec. 29, 2005, the period of filing a complaint against a crime of rape, etc. against a juvenile was extended to two years differently from the period of filing a complaint (Article 10-2 of the Act on the Protection of Juveniles from Sexual Abuse). The review report on the amendment was intended to strengthen the punishment of a sexual offender by extending the period of filing a complaint by deeming it reasonable for the State to actively intervene in a sex offense against a juvenile who lacks self-determination ability and ability to exercise his/

③ Following the amendment of the Act on the Protection of Juveniles by Act No. 8634, Aug. 3, 2007, Article 16 of the Act provides that the prosecution against rape, etc. against a juvenile may be instituted without the victim’s complaint; however, it may not be instituted against the victim’s explicit intent. According to the review report on the amendment bill submitted to the National Assembly, “The purpose of the amendment is to delete the provision on an offense subject to prosecution subject to prosecution subject to prosecution from a criminal complaint to a civil penalty through an agreement with the victimized juvenile and the cancellation of complaint, thereby preventing a legitimate punishment against a sexual crime subject to prosecution from being subject to prosecution, and thereby, to enhance the effectiveness of punishment by converting the provision on an offense subject to prosecution subject to prosecution into an offense subject to prosecution against a victim and allowing the investigation to be initiated without the victim’s complaint.”

④ As seen earlier, the legislative intent of the legislators who enacted and amended the Juvenile Sex Protection Act seems to be clear that they intend to protect juveniles and severely punish sex offenses against juveniles. However, even if the Juvenile Sex Protection Act does not provide for a crime subject to prosecution subject to prosecution subject to prosecution subject to prosecution subject to prosecution subject to prosecution pursuant to the principle of no crime subject to prosecution subject to prosecution subject to prosecution pursuant to the strict interpretation of the Criminal Act, the purport of interpreting it as an offense subject to prosecution subject to prosecution pursuant to the principle of no crime subject to prosecution and strict interpretation of the Criminal Act is added, and as long as there are no restrictions other than the proviso of Article 16 of the Juvenile Sex Protection Act, it is difficult to say that the legislative intent is to strengthen the punishment of

⑤ Furthermore, we also examine whether the proviso to Article 16 of the Act on the Protection of Juveniles from Sexual Abuse can be seen as an “complication in editing” of the so-called legislators. In the process of the legislators’ organizing the provisions, the term “complication in editing” refers to a situation in which a person subject to regulation of a de facto penal provision is omitted, or a social change that will take place in the future is unexpected. In particular, as in Korea, if a person finds it difficult to promptly revise a penal provision under the circumstances where it is difficult to do so, the need for criminal punishment may be satisfied even before the amendment of the Act. However, the main discussion mainly discussed in converting a sexual crime subject to juveniles into an offense subject to victim’s complaint as an offense subject to victim’s complaint at the time of the amendment of the Act on the Protection of Juveniles from Sexual Abuse into an offense subject to victim’s complaint, not an open and explicit declaration of intention, or a third party’s simple report or information. Rather, there may be a decrease in the possibility of returning a sex crime due to active complaint, and thus, there may be no further discussion on whether a legal representative of a juvenile victim’s’s.

㈑ 청소년성보호법의 입법취지와 목적 (객관적·목적론적 해석)

(1) The interpretation of penal provisions does not preclude a teleological interpretation taking into account the legislative intent, purpose, legislative history, etc. of the law, unless it goes beyond the ordinary meaning of the legal text. Article 3 of the Juvenile Sex Protection Act provides that “In interpreting and applying this Act, the rights and interests of juveniles shall be first taken into consideration, and caution shall not be taken into account unfairly infringing on the rights and interests of interested persons and their family members,” and Articles 7 through 12 of the same Act provides that “a sex offense against a juvenile shall be newly established and aggravated, thereby strengthening the protection of juveniles and punishing sexual offenders against a juvenile, thereby clarifying the purpose and purpose of punishing them. However, the penal provisions shall be strictly interpreted and applied in accordance with the language and text, and shall not be expanded and interpreted in a manner unfavorable to the defendant without permission, apart from the application of various interpretation standards, since the expanded interpretation to achieve the necessity of punishment against the defendant has a serious danger to the constitutional request of "no crime without the law," it is difficult to accept the meaning and the result of the legal representative’s consent expressed in the ordinary statutory interpretation of the proviso to Article 16 of the Act.

② In order to recognize an expression of intent or withdrawal of a wish to punish a juvenile who does not wish to punish, it must be expressed in a way that is obvious and reliable (see Supreme Court Decision 2003Do4934, Jun. 25, 2004). Since juveniles are highly able to express their intent not to punish a juvenile in an unfair manner through meeting, intimidation, deception, etc. of the defendant than the adult victim with the lack of judgment ability, it is also true that the legal representative needs to play a guardianship role. However, the court must examine the juvenile’s age, intelligence, family environment, and the details and reasons of the expressed opinion, circumstance, relationship with the defendant, and make a judgment on whether the juvenile’s intention is true and how the expression of his/her wish is expressed in a trust way. Accordingly, it is insufficient to interpret that “the consent of the legal representative of the victim” requires the consent of the legal representative of the juvenile due to the lack of judgment ability.

③ The purpose of the crime of non-violation of will is to discuss the victim's wishes to punish the victim because it is relatively minor and mainly no longer necessary to punish the victim in disregarding the victim's will or emotions. Therefore, while the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof is excluded in the case of rape against minors under the age of 13, and indecent act by compulsion, the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof is amended to the crime of non-violation of will, the legislative intent of the Act on the Protection, etc. of Juveniles against Sexual Crimes against the age of 13 and under the age of 19 is to consider the victim's will in exercising the penal authority over the sexual crime against the minor under the age of 13, rather than the crime of rape against the minor under the age of 13. However, in the case of complaint, the consent of his legal representative is not required in the case of cancelling the complaint or complaint, it is against the legislative intent purpose of the Act on the Punishment, etc. of Sexual Crimes and requesting consent of his legal representative.

㈒ 소결 - 법정대리인의 동의 불요

① Under the interpretation of the Criminal Act, the meaning of the language and text is one of the starting points, and the final limit of interpretation. Therefore, in a case where the language and text, which is the meaning of the law, is clear and logical and inconsistent, it shall not deviate from the language and text except in exceptional cases where it is actually impossible to apply such language and text. Furthermore, in the interpretation of the Criminal Act, even if there is a possibility that the degree of detention under this Act may bring about unreasonable consequences on the other hand, it is necessary to refrain from an amendment by legislative action, and even if it is possible to prevent the unreasonable consequences, applying the provision of a prestigious with a view to suppressing the prestigious to the legislative area beyond the limit of statutory interpretation, it is not permissible for the judge to take the place in the legislative area. Accordingly, even if the purpose of enacting and amending the Juvenile Protection Act is to punish sexual offenders, and the purpose of the enactment and amendment is to bring about some unreasonable consequences that may go beyond the principle of prohibiting the expression of intent or punishment of sexual offenders only by the victim, it cannot be resolved by the strict interpretation of the proviso of the Criminal Act.

② As a result of the examination of the proviso to Article 16 of the Juvenile Protection Act according to the aforementioned various interpretation standards, if the victim expresses his/her wish not to punish him/her, or withdraws his/her wishing to punish him/her, he/she may not be punished. This does not mean that the legal effect takes place only by the expression of intent of “victim”. In addition, the legal representative’s consent is required or the legal representative’s wish not to punish him/her is not required to withdraw the expression of intent or the previous wishing to punish him/her.

【Settlement of the instant case

The case back to this case and the defendants' criminal facts constitute a crime falling under Article 7 (1) through (3) of the Act on Protection of Juveniles from Sexual Abuse, and they cannot be prosecuted against the victim's express intent under the proviso of Article 16 and subparagraph 1 of the same Article of the Act on Protection of Juveniles from Sexual Abuse. According to the victim's statement in the court below, the victim's withdrawal of his/her wish to punish the defendants can be acknowledged. Thus, each part of the prosecution against the defendants should be dismissed pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act. Nevertheless, the judgment of the court below which found the defendants guilty of this part of the facts charged against the defendants is unlawful, and therefore, the defendants cannot be exempted from reversal without further review as to the defendants' assertion of unfair sentencing.

x Judgment based on the victim's ability to conduct litigation

㈎ 소송행위능력의 의미

① Inasmuch as an expression of intention not to punish is an action against an investigative agency or a court, such as filing a complaint, the victim’s ability to conduct litigation is necessary. In such cases, the ability to conduct litigation is sufficient to understand the situation in which the victim was damaged and identify the social interests following the expression of intent or withdrawal of the intent to punish.

② In relation to the proviso of Article 16 of the Act on the Protection of Juveniles from Sexual Abuse, there may be a view that: (a) if a juvenile who is a victim is capable of litigation, only the statement of intent not to punish him/her is sufficient; and (b) if he/she is incapable of litigation, the legal representative’s consent is required; or (c) the legal representative’s right to express his/her intention not to punish him/her is granted. Therefore, this case is examined

㈏ 피해자의 소송행위능력 유무

According to the evidence duly adopted by the court below, the victim non-indicted 1 stated that he was rape and indecent act against the defendants on April 25, 1994, when 14 years old and 14 months old and passed, around August 2008, and was reported to the police after hearing the advice of the president of the Dognasium he works and was reported to the police. ② The parent of the victim divorced, and her mother was divorced without contact with her father, so she lives with the victim because she did not want she to live with her so, ③ the victim did not want her punishment (14 years old and 10 months) around February 13, 2009. The victim stated that he did not want to punish the defendants, and that the victim did not have any influence on her father's punishment, and that she did not have any clear meaning and influence on her father's punishment.

㈐ 소결

Therefore, even according to the position that the legal representative's consent is required depending on the victim's legal capacity, in the case of this case, the victim's explicit intent recognized to have legal capacity has withdrawn his previous wish to punish the Defendants, thereby reaching the same conclusion that this part of the prosecution should be dismissed.

3. Determination on the grounds for appeal

A. As to the defendant 1 and 3's assertion

(1) Although there is a ground for ex officio reversal, Defendant 1 and 3’s assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court, and this is to be examined.

D. The defendants and the defense counsel of the court below asserted the same as the grounds for appeal of this case, and the court below rejected the above assertion in detail, with the detailed explanation of the argument and its determination under the title "the judgment of the defendants and the defense counsel". In light of the above records, the judgment of the court below is just and it is not erroneous in the misapprehension of the legal principles as to the crime of threat of force and the crime of rape, which affected the conclusion of the judgment. Therefore, the above assertion by the defendants is without merit.

B. Regarding the prosecutor's assertion of unreasonable sentencing

Although Defendant 2’s crime of this case was committed by a young juvenile, who is merely 12 years of age, coming away from home, it is necessary to punish Defendant 2 with strict punishment in light of the following: (a) the crime of this case was committed by intimidation the victim who was unable to lead him/her to a right way or right way; and (b) the crime was significantly poor; and (c) the victim seems to have failed to establish the right interest view or values due to sexual assault of this case in middle school year; (d) there is a great concern of having distorted values due to sexual assault of this case; and (e) there was considerable mental suffering.

However, in light of all of the sentencing conditions indicated in the records, such as the Defendant’s age, character and conduct, family environment, means and consequence of the crime, etc., the sentence imposed by the lower court is deemed appropriate and it is deemed unfair because it is too unreasonable, and thus, the above argument against Defendant 2 by the prosecutor is without merit.

4. Conclusion

Therefore, since the part of the judgment of the court below against Defendant 1 and 3 on the ground of the above ex officio reversal, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendants' assertion of unfair sentencing, and it is again decided as follows. The prosecutor's appeal against Defendant 2 is without merit, and it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act.

1. Defendant 1:

A. On June 6, 2008, around 01:00, at one’s own room of Seocho-gu Seoul Seocho-gu Seoul Metropolitan Government (or the address omitted), sexual intercourse with a female victim under the age of 13 by using force, such as the victim Nonindicted 2 (n'e, 12 years old) under the influence of force, who was under the influence of her life, forced the victim to be discharged from clothes and takes the body of her body, and thus, sexual intercourse with a female victim under the age of 13.

B. At around 18:00, on July 2008, a female victim under the age of 13 was raped by: (a) putting the victim at the victim’s own room, upon the Defendant’s request, who had been said to be said to have been sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually

2. Defendant 3 raped the victim, who is a woman under the age of 13, by towing the victim Nonindicted 2, who was reported on television, pressing the victim Nonindicted 2, satisfing the resistance, satisfing the satisfeing the satfe, sating the satfe at the lower end of June 2008, and committing sexual intercourse once with the victim’s clothes, at around 20:0.

1. The court below's decision and part of the trial court's oral statement

1. Statement made by the police on Nonindicted 2

1. Article relevant to the facts constituting an offense and the selection of punishment;

Ο 피고인 1 : 구 성폭력범죄의 처벌 및 피해자보호 등에 관한 법률(2008. 6. 13. 법률 제9110호로 개정되기 전의 것) 제8조의2 제5항 , 제1항 (13세 미만 미성년자 위력 간음의 점), 개정 후의 성폭력범죄의 처벌 및 피해자보호 등에 관한 법률 제8조의2 제1항 , 형법 제297조 (13세 미만 미성년자 강간의 점)

Ο 피고인 3 : 개정 후의 성폭력범죄의 처벌 및 피해자보호 등에 관한 법률 제8조의2 제1항 , 형법 제297조 (13세 미만 미성년자 강간의 점)

1. Aggravation for concurrent crimes (Defendant 1);

The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the aggravated punishment provided for in the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof on July 2008, when the punishment is heavier than that of the lower court]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Code. (The conditions in favor of the reasons for sentencing are as follows)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

1. Order of inspection;

Article 37 (1) 1 of the Act on the Protection of Juveniles against Sexual Abuse

Although each of the crimes of this case was committed by a young juvenile, who is merely 12 years old and left home, there is a need to strictly punish all the Defendants in light of the following: (a) the Defendants committed sexual intercourse or rape by force that is not leading to a right way; (b) the nature of the crime is considerably bad; and (c) the victims seem to have failed to establish a proper sense of interest or values due to sexual assault in the first year of middle school; (d) there is a high risk that they may have distorted values due to sexual assault in this case, and have suffered considerable mental suffering.

However, Defendant 1 did not have any history of criminal punishment except for a disposition of suspension of indictment twice due to theft, unlicensed driving, unlawful uttering of official document, etc., Defendant 3 has no history of criminal punishment prior to the instant case, Defendant 2 has no history of criminal punishment, and all of the Defendants have divided their mistakes in depth. The victim Nonindicted 2 and their legal representatives have already agreed that they are not subject to the punishment of the Defendants, and all of the sentencing conditions indicated in the records, such as the age, character and conduct, family environment, frequency and means of the crimes, and the result of the crimes, shall be determined by comprehensively taking into account all of the sentencing conditions indicated in the records.

1. Summary of this part of the facts charged

A. At around August 18, 2008, Defendant 1: (a) committed sexual intercourse with a female juvenile by suppressing the victim’s resistance in a manner that the victim Nonindicted Party 1 (the victim Nonindicted Party 1 (the victim 14 years of age) drinks and sleeps alcohol; and (b) prevents the victim from breaking the victim’s body after shouldering the victim’s body; and (c) he was off and off off the victim’s clothes; and (d) she raped the victim, a female juvenile.

B. At around 01:00 on August 11, 2008, Defendant 3 committed an indecent act against a female juvenile by taking advantage of the victim’s non-indicted 1’s condition that he was unable to resist, as Defendant 3 took the victim’s chest on the part of the victim Non-indicted 1, who was drinking and diving.

2. Determination:

On the other hand, the defendants' criminal facts are crimes falling under Article 7 (1) through (3) of the Juvenile Protection Act, and they cannot be prosecuted against the victim's express intent under the proviso of Article 16 and subparagraph 1 of Article 16 of the same Act. According to the victim's statement in the court below, the victim's statement in the court below can be acknowledged the fact that the victim has withdrawn his/her wish to punish. Thus, each part of the prosecution is dismissed under Article 327 (6) of the Criminal Procedure Act.

Judges Park Jong-nam (Presiding Judge)