Defendant

Defendant and Prosecutor

Stick-type vessels

Busan District Court Decision 2010 High Court Decision 6711 Decided February 18, 2011

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 4,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

(a) A prosecutor;

According to evidence, such as the statement at the investigation agency and the court of the court below in the victim's statement, it is recognized that the defendant had expressed his sexual organ to the victim while taking the victim's bath, and this constitutes indecent act by compulsion. However, the court below found the defendant guilty of intimidation on this part of the facts charged, but there is an error of misunderstanding of facts

B. Defendant

The punishment (including a fine of four million won) imposed on the defendant by the court below is too unreasonable.

2. Determination

First, the reason for appeal by the prosecutor is examined.

According to the evidence duly adopted and examined by the court below and the statement at the court of first instance of non-indicted 2, the defendant first committed the victim, but the victim did not respond to it, and the victim expressed her sexual organ to the victim by threatening the victim, such as "I am dead at the end of this weather," and posing the victim's desire to "I am dead at the end of this weather," which constitutes an indecent act by force by the defendant. At the time, the defendant and the victim first met the victim, while the place of the crime was in front of the vehicle, the vehicle was parked, and the vehicle was parked, and the time was 8 cc., it constitutes intimidation to the extent that it is difficult to resist the victim's resistance, and in this situation, the defendant's act of showing her sexual organ to the victim was contrary to good sexual morality and sexual moral norms, and thus constitutes an indecent act by force. Thus, the defendant's above act constitutes an indecent act by force.

Therefore, the judgment of the court below which judged that the indecent act by compulsion was not recognized and only the fact of intimidation is recognized, is erroneous in the misapprehension of legal principles as to indecent act by compulsion, which affected the judgment.

3. Conclusion

Therefore, the prosecutor's appeal against the indecent act by compulsion among the judgment below on the ground that this part cannot be maintained any longer. Since the crime of indecent act by compulsion and the crime of obstruction of performance of official duties found guilty in the judgment below are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below on obstruction of official duties should be reversed. Therefore, the judgment of the court

Therefore, without examining the defendant's assertion of unfair sentencing, the judgment of the court below is reversed, and it is again decided as follows through pleading.

1. On October 11, 2010, at the front of the △△△△△△△△△△ Complex operated by Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), which was located in the 19:50-dong, Busan, the Defendant: (a) discovered the victim returning to home and the victim “Ie L. Ie.,” among Non-Party 1, there was a good appraisal between ordinary victims Nonindicted Party 2 (n, 48 years old) and Non-Party 1, and made the victim “Ie. Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie., Ie

2. The Defendant, along with Nonindicted 1, tried to arrest Nonindicted 3, who was dispatched by Nonindicted 2 on the same date, at the same place, at the same time, and at the same place, due to the said Defendant’s act, in order to arrest Nonindicted 3, who was in a flagrant offender, who was sent to Nonindicted 2 by Nonindicted 3 at the hot spring district in Busan East Police Station, with Nonindicted 3’s possession of a route for Nonindicted 2, and the Defendant expressed Nonindicted 3’s bath to Nonindicted 3, who was boomed with both drinking and drinking, followed Nonindicted 3’s legs, followed Nonindicted 3’s drinking, followed Nonindicted 3’s drinking, followed Nonindicted 3’s bridge, and assaulted Nonindicted 1, who was fladdd with fating in the afterma.

Accordingly, in collusion with Nonindicted 1, the Defendant interfered with the legitimate execution of duties concerning the on-site movement of Nonindicted 3, a police officer.

1. The defendant's partial statement in the first trial record of the court below;

1. The statement of the witness at the trial court of the non-indicted 2's party branch and the statement of the witness non-indicted 2 in the third trial records of the court below

1. Part of the witness’s statement in the third trial record of the court below

1. Investigation protocol of Nonindicted Party 1 by the police officer

1. Each police statement made against Nonindicted 3 and 2

1. Investigation report (including photographs attached thereto);

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

Article 298 (Indecent Act by Indecent Act by Indecent Act), Articles 136 (1), 30 (Indecent Act by Indecent Act by Compulsion), and Selection of each fine.

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In light of the fact that the defendant denies the indecent act by force of female, the police officers who prevented the defendant from performing their duties by force against the police officers who prevented the defendant's failure even though they had been punished several times due to violence, etc., and other various circumstances, such as the defendant's character and conduct, the motive, circumstance, means and consequence of the crime in this case, and the sentencing conditions indicated in the record, such as the circumstances after the crime, shall be determined as ordered.

Judges Lee Jong-il (Presiding Judge)