(영문) 수원지방법원 안산지원 2020.7.3.선고 2019고합256 판결

The defendant shall issue an employment restriction to the child and juvenile-related institutions, etc., and the welfare facilities for the disabled for three years.In this case, the defendant is not guilty of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.

Reasons

Criminal facts

【Criminal Power】

On May 9, 2019, the Defendant was sentenced to a suspended sentence of two years, etc. on August 22, 2019, for the crime of fraud and damage to property in the Suwon District Court’s Ansan Branch for the crime of damage to property, and the judgment became final and conclusive on November 22, 2019 [1]

2019Gohap280

1. Before consolidation 2019 Highest 1962

On May 15, 2019, the Defendant: (a) 16:35 around 16:35, the Defendant frighted a large amount of voice in front of the game C; (b) the victim D (ma, 47 years of age) was frighter in the vicinity; (c) when the victim D (ma, South and 47 years of age) play play in D, she saw the head of the victim D; (d) spits the victim D’s face; (d) spits the victim D; and (e) was fright the victim D; and (e) the victim E (ma, 38 years of age) spits the victim E face; and (e) the victim E (e) spits the victim E face.

2. Before consolidation, 2019 Highest 2334

(a) Fraud;

1) Crimes around May 23, 2019

Around 02:27 on May 23, 2019, the Defendant issued an order for alcohol and food as if he/she had an intent or ability to pay the drinking value, etc. to his/her employees H, from “○○○○○” operated by the victim G in Made-si F. However, the Defendant did not have any means to pay the drinking value, such as cash or credit card, and thus, did not have an intent or ability to pay the said price even if he/she received an order for drinking and food. Nevertheless, the Defendant, by deceiving H as above, was provided one pacta, which is equivalent to the total market value of KRW 51,00,00, in total, KRW 51,00,00, in total. Accordingly, the Defendant received property from the victim by deceiving H.

2) Crimes around May 27, 2019

Accordingly, the Defendant, by deceiving the victim on May 27, 2019, ordered drinking and food as if he/she had the intent or ability to pay the alcohol value, etc. to the victim. However, the Defendant did not have the means to pay the alcohol value, such as cash or credit card, and did not have the intent or ability to pay the cost of drinking and food even if he/she orders drinking and food. Nevertheless, the Defendant had the intent or ability to pay the cost of drinking and food. Nevertheless, by deceiving the victim as above, the Defendant was provided with two so-called so-called so-called 34,00 won in total, a small-scale one disease, and a drinking water disease from the victim. The Defendant received property from the victim.

(b) Violence and damage to property;

On May 27, 2019, at around 16:45, the Defendant, under the influence of alcohol, took a bath to the victim M(25 years of age) who used at the same time without any justifiable reason, and assaulted the victim’s left arms by breathing them, and continuously damaged the part of the occupied part, which is owned by the said victim.

3. Before consolidation, 2019 Highest 2759

On July 3, 2019, the Defendant issued an order of alcohol and alcohol equivalent to the total amount of KRW 70,000 won to the victim P, who is the above restaurant business, without the intent or ability to pay the alcohol value, and received the delivery from the victim of alcohol and alcohol.

4. Before consolidation, 2019 Highest 3132

At around 12, 318. 18:30 on 18:30 on 2018, the Defendant dialogueed with the victim R in Q underground in a large sound while under the influence of alcohol, the Defendant obstructed the victim’s restaurant business by the threat of force of approximately 20 minutes and interfered with the victim’s restaurant business by avoiding the disturbance, such as having the victim R, who works for the victim R in Q underground, T and under the influence of alcohol.

5. Before consolidation, 2019 Highest30

around 02:30 on June 8, 2019, the Defendant issued an order for liquor equivalent to the total amount of 22,000 won to the victim, even though the Defendant did not have the intent or ability to pay the liquor value to the victim, and received the said liquor from the victim.

6. Before consolidation, 2019 Highest 3484

(a) Crimes around September 4, 2019;

Around 02:00 on September 4, 2019, the Defendant ordered drinking and food as if the Defendant had the intent or ability to pay the drinking value, etc., in the “Z” operated by the victim Y in X building 3 in light of light-si. However, the Defendant did not have the means to pay the drinking value, such as cash or credit card, and did not have the intent or ability to pay the drinking and food even if he/she orders drinking and food. Nevertheless, the Defendant, by deceiving the victim, was provided with three small liquors with the total market value of KRW 49,00,00 in total, one drinking water, one drinking water, one sea water, and one satisfied air conditioner. Accordingly, the Defendant received property from the victim by deceiving the victim.

(b) Crimes around September 13, 2019;

1) Fraud

Around 21:30 on September 13, 2019, the Defendant issued an order for drinking and eating as if he/she had an intent or ability to pay the drinking value, etc., at “AC operated by the Victim AB, AB, in light of his/her intent or ability to pay the drinking value, etc. However, the Defendant did not have any intent or ability to pay the drinking and eating price even if he/she orders drinking and eating because he/she was not in possession of a means to pay the drinking value, such as cash or credit card, etc., under water. Nevertheless, the Defendant, by deceiving the victim as above, was provided with one so that the Defendant was by deceiving the victim and received property from the victim. Accordingly, the Defendant received property from the victim by deceiving the victim.

2) Violence

On September 13, 2019, at least 23:30, the Defendant: (a) expressed to the victim AF (the age of 38) who intends to take food on the table set up in front of the above convenience store in light of the following: (b) expressed that “I will die? I will do so?” (the age of 38) and read “I will do so? I will see”; and (c) assault the victim by putting the back of the victim once.

On August 5, 2019, at around AH bus stops located in AG on August 23:13, 2019, the Defendant found an AI (n, 60 years of age) on which the route was lying, and followed away, called “Copia, Ikhia, Ikhia,” “Ikh natural acid, Ikhia, and Ikhhia,” and set a brupter and out of the sexual organ. Accordingly, the Defendant openly committed an obscene act.

Summary of Evidence

[2019 High 280 Of consolidation 2019 High 2019 High 1962]

1. Witness E;

1. Statement made by witnesses D in the third protocol of the trial;

1. Partial statement of the police interrogation protocol of the accused;

1. Each written statement of D and E;

1. Report on the occurrence of a crime, investigation report (investigation into a shote and verification of surrounding CCTV);

1. On-site photographic data [2019, 280, 2019, 2334 before consolidation];

1. Statement of the accused in the second protocol of trial;

1. Each statement of J and M. H (Evidence Nos. 2, 17, 23);

1. Investigation report (victim's statement), investigation report (Listening to victim's Mphone statement), and investigation report (the counter-investigation of the AJ party);

1. On-site photographs and receipts, photographs of crimes, tear gas photograph, receipts, and field photographs [the 2019 Highest 280 combined, 2019 Highest 2759];

1. Statement of the accused in the second protocol of trial;

1. A P statement;

1. On-site photographs, etc. attached to the investigation report and business report certificates, etc. (including evidence list 1, 2, 3);

1. Interim statement (2019 high-class 2019 high-class 3132 before consolidation among 200);

1. Statement of the accused in the second protocol of trial;

1. T protocol of suspect examination by the prosecution;

1. AR statement;

1. Investigation report (in the event of a brut Beder's investigation), investigation report (in the case of a brut of CCTV image data in a restaurant, photographs, etc.);

2019 Highly 280 Of consolidation 2019 Highly 3230

1. Statement of the accused in the second protocol of trial;

1. A V statement;

1. Control note, 112 reported details;

1. Receipt 2019 Highest 3484, prior to consolidation, among receipts 2019 Highest 280

1. The defendant's partial statement in the second protocol of trial;

1. Statement made by a witness AF in the third protocol of trial;

1. Written Statements AB, AF, and Y

1. A list of reports on occurrence of accidents and reports filed in 112;

1. On-site photographs (referred to as the sequence 3, 16), on-site photographs, etc., simple statements of accounts 2019,301;

1. Statement made by AK of the third protocol of trial;

1. Partial statement of the police interrogation protocol of the accused;

1. The police statement of the AI;

1. A table 112 of the 112 Reporting Case Processing ;

【Prior Records at the Time of Sales】

1. Determination as to the assertion of the defendant and his/her defense counsel by the court rulings (2019Nos. 635, 712, 1118) bound in evidence records, court rulings (2019No. 2769, 2019, 256, No. 16, 17) and defense counsel

1. Summary of the assertion

A. As to the case before the consolidation of 2019Gohap280, the fact that at the time of the instant case, at the time of the victims’ convenience store, the Defendant was causing the victims to become the Defendant, and the victims came at the convenience store, and the victim D, E, or E, and the victim was a plastic victim, but there was no assault against the victims.

B. As to the case before consolidation 2019Gohap280, the Defendant did not assault the Victim AF.

C. As to the case 2019Gohap301, the Defendant did not have committed a public performance or obscenity act.

2. Determination

A. Determination on the assault case against the victim D and E

이 법원이 적법하게 채택하여 조사한 위 증거의 요지에 설시된 증거들에 의하여 인정되는 다음과 같은 사실과 정황들을 종합하여 보면, 이 사건 각 범행에 관한 피해자D, E의 진술은 충분히 신빙할 수 있으며, 피고인이 판시 2019고합280 중 병합 전2019고단1962 사건의 범죄사실 기재와 같이 피해자들을 폭행한 사실을 충분히 인정할 수 있다. 따라서 피고인 및 변호인의 주장은 받아들이지 않는다. 즉, 1) 피해자 D은 이 법원에서 'D이 피고인에게 피고인이 우유팩을 거꾸로 뒤집어서 밟아 '쾅'소리를 낸 행위에 대해 항의하자, 피고인은 흥분해서 (1) 플라스틱 의자로 D의 왼쪽 머리를 때리고, (2) D의 얼굴에 침을 뱉었으며, (3) D과 함께 있던 E에게도 욕설을 하고 얼굴에 침을 뱉었으며, (4) 이들을 향해 돌을 던졌다'는 취지로 진술하였으며, 피해자 E은 이 법원에서 '(1) 피고인이 흥분해 플라스틱 의자를 휘둘렀다가 D의 어깨에 맞았으며, (2) E에게 욕설을 하고, 침을 뱉었으며, (3) 피해자들을 향해 돌을 던졌 다'는 취지로 진술하여, 피고인이 휘두르는 플라스틱 의자에 D이 맞았고, 피고인이 말하다가 침을 튀긴 것이 아니라 일부러 침을 뱉었다는 사실을 분명히 밝혔고, 이러한 피해자들의 진술은 각 피해 사실 및 전후 사정에 대하여 상당히 구체적이며, 주요 부분에 있어서 서로 상반되거나 합리적이지 아니한 부분이 없다고 보인다.

However, it is against the victim's statement in the area where the defendant spits, spits, or spits, or spits, after the defendant made a statement to the effect that "E is spits or spits, or is not spits, or is spits, not the head of D." However, the victim's statement is somewhat inconsistent with the victim's statement in the area where the victim's spits or spits are made; ② 10 months have passed since the date of the crime of this case (as of May 15, 2019) (as of March 11, 2020), ③ since the date of the crime of this case (as the person who is spits or spits, the person who is spits or spits) is not E but D, it is difficult to reject the credibility of some of the statements as above solely on the basis that there is a natural difference between the above detailed parts of the statements.

2) 게다가, 수사보고(목격자수사, 주변CCTV 확인)에 따르면, 이 사건 범행을 목격한 성명불상 40대 남성 행인은 피고인으로 추정되는 나이 든 사람이 의자를 들고 피해자들에게 위협적으로 때릴 듯이 휘두르고, 이후 피고인이 E으로 추정되는 여자를 향해 '퉤'하고 침을 뱉는 것을 직접 보았다고 진술하였고, 사건 현장에 있던 또 다른 목격자도 피고인이 피해자들을 향해 돌멩이를 던지는 장면을 직접 보았다고 진술하였다.

3) In the police investigation, the Defendant also made a statement that “as if he had the intention to engage in plastics,” which was in the floor of the police investigation, threatened the victims with plastic will.

B. Determination on assault against the victim AF

Among the evidence duly adopted and examined by this court, the victim AF, who is the main point of convenience in this court, is a direct evidence that corresponds to the facts charged, stated that "the victim AF, who is the victim of convenience store, attempted to take food on the front of the convenience store, the defendant was fluored with the victim, and the victim was fluored with the victim's unknownness." Accordingly, the victim suffered an error on the bridge.

Such statements may be sufficiently reliable in view of (1) the fact that it is difficult for the victim to make a statement, (2) the victim's statement corresponds to the statement and the content prepared by the investigative agency, (3) the fact that the victim corresponds to the body photograph used by the victim, among the objective evidence-related field photographs (Evidence List No. 9), and (4) the victim has no reason to make a false testimony against the defendant, and (2) the fact that the victim assaulted the victim, such as the facts stated in the criminal facts of the case in 2019Kahap280, the consolidation of 2019Mo3484, the decision of the defendant and the defense counsel is not accepted. Accordingly, the argument of the defendant and the defense counsel is rejected.

Among the evidence duly adopted and examined by this court, there is a statement to the effect that "AK, in this court, took a bath for AK in the street near AH bus stops located in AG on August 5, 2019, and was shaking his sexual organ in the state of her own sexual organ when Belgium was cut down," among the evidence presented in the summary of the above evidence.

이러한 진술은 ① 피고인의 범행과 그로 인한 피해자의 반응 등 범행의 전후 사정에 관하여 스스로 경험하지 아니하면 진술하기 어려울 만큼 구체적이라는 점, ② 객관적인 증거인 CCTV 캡처 화면(증거목록 순번 5) 중 2019. 8. 5. 23:12:25경 피고인이 AK을 따라가고, 같은 날 23:13:39경 피고인이 무단횡단하며 도주하였다는 장면이 위 진술 내용에 부합한다는 점, ③ AK은 같은 날 23:13경에 '남자가 자크를 내리고 지나가는 여자들한테 성기를 들이 댔다'는 내용으로 112신고를 하였으며, ④ AK은 피고인과 일면식도 없는 관계인바, 허위로 112신고를 하고, 피고인에게 불리한 허위사실을 진술할 이유가 전혀 없다는 점을 고려하면 충분히 신빙할 수 있어 결국 피고인이 판시 2019고합301 사건의 범죄사실 기재와 같이 공연음란행위를 한 사실을 인정할 수 있다.

Therefore, the defendant and his defense counsel are not accepted.

Application of Statutes

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

Article 260 (1) of the Criminal Code (the point of violence), Article 347 (1) of the Criminal Code (the point of fraud), Article 366 of the Criminal Code, Article 314 (1) of the Criminal Code (the point of interference with business), Article 245 of the Criminal Code (the point of public performance obscenity), the choice of imprisonment for each term

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37(former part), 38(1)2 and 50(a) of the Criminal Act (aggravating concurrent crimes for victims P with the largest penalty and penalty) of the Criminal Act

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 16622, Nov. 26, 2019); Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; the main sentence of Article 59-3 (1) of the Act on Welfare of Persons with Disabilities;

1. The grounds for sentencing: Imprisonment with prison labor for one month to 15 years;

2. Application of the sentencing criteria: Each of the crimes in this case is related to the crime of fraud, damage to property and the latter concurrent crimes of Article 37 of the Criminal Code, so the sentencing criteria shall not apply.

3. Determination of sentence: One year of imprisonment;

The Defendant committed the crime of fraud through the use of an intangible type for a period of one year, without any justifiable reason, has been committed several times during which he committed the crime of fraud, has interfered with his duties, has interfered with his duties, has inflicted violence on others, has damaged property, and has committed a public performance and obscenity act. Nevertheless, the Defendant did not object to his mistake, and does not recognize the act of obscenity and violence against victims, and the Defendant has been punished several times with the previous convictions, such as the crime of injury, fraud, and the crime of interference with business.

However, the defendant's damage caused by each of the crimes in this case is relatively little, in particular, that the victim of the assault was not injured, that the defendant was compensated for and agreed on the damage to some victims of the fraudulent case, and that the compensation for damage to the victim V was made in addition to the above, the circumstances favorable to the defendant should be taken into consideration. Other factors such as the equity between the defendant's crime of fraud and the crime of damage to property in the judgment that became final and conclusive on November 22, 2019 should be taken into account, the defendant's age, character and behavior, environment, relationship with the victim, motive, means and consequence of the crime, and all of the sentencing conditions shown in the arguments, such as the circumstances after the crime, etc.,

The acquittal portion

1. Summary of this part of the facts charged

At around 16:10 on July 3, 2019, the Defendant: (a) discovered a victimN (at least 13 years of age) who was under a conversation with his/her friendship with his/her her her her her friend while drunking on the road in front of the AL in a light-time state of alcohol; (b) her friend, "for example, his/her friend students and physical strength are national force;" and (c) her friend, the Defendant followed the her friend victim until the same friend and AP, added the friend victim to his/her friend, and led him/her to a friend if he/she friended.

Accordingly, the defendant committed an indecent act against the juvenile victim by force.

2. Determination

A. According to the statement and investigation report (the CCTV image confirmation report in front of clothes) made by the witness Q in this court, the Defendant, who does not have a flag, told the victim that he would buy boomed. The fact that the victim would have the left hand of the victim himself, who intending to avoid, was recognized, and the behavior of the youth who flabed in the blag would be subject to criticism.

B. However, it cannot be readily concluded that all of others’ grandchildren led to the elements of a indecent act by compulsion and thus subject to criminal punishment. In other words, the elements of a crime are limited to cases where it is determined that the act is likely to cause sexual humiliation or aversion by taking into account the relation between the person who knife and the person who knife, the reason, circumstances, time, conduct and situation of knife, conduct and situation before and after the act, existence of witnesses, response of witnesses, and other surrounding circumstances, etc. In light of these standards, it is difficult to conclude that the act, such as the facts charged by the defendant, as described in the above facts charged, is an indecent act that causes sexual humiliation or aversion to the general public and infringes on the victim’s sexual moral sense, and it is difficult to conclude that the defendant committed an indecent act against the victim. In other words, the defendant merely committed the act of knifeing the victim’s grandchildren, and did not conduct sexual behavior or speech before and after the act (4).

2) The Defendant thought that students, including the victim, are able to see a large degree of body, and argued that they were friendly to other students. Of the content of the written statement prepared by A Q in an investigative agency, the part of “the Defendant’s “I need not ignore their friendship,” and “I need to supply them,” which is consistent with the Defendant’s argument. Considering this point, the Defendant seems to have considered that there was a bullying between the victim and the victim’s relatives without sexual intent.

3) Under various circumstances, the Defendant’s towing of the victim’s grandchildren appears to be an act on the part of the Defendant’s intent to take the victim into a place where he can drinked. There is no circumstance to view the Defendant’s intentional act as an indecent act.

4) In this court, Q made a statement that "a person who was born at this court's her own hand and was reported to the police because he was very heavy," and that "a person was reported to the police by an investigative agency", and did not mention sexual conviction or other similar appraisal. The victim and the surrounding people seem to have made a sense and appraisal similar to A Q.

3. Conclusion

Thus, this part of the facts charged against the defendant constitutes a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, but the defendant does not consent to the public announcement of the verdict of innocence under the proviso of Article 58 (2) of the Criminal

Judges

The presiding judge and deputy judge;

Judges Ooman

Judge Lee Jong-sung

Note tin

1) At the fifth trial date (2020, April 8, 202), the prosecutor added Article 39 of the Criminal Act to the applicable provisions of the indictment in this case, and "Defendant" among the charges charged records.

on May 9, 2019, for the crime of fraud and damage to property in the Suwon District Court's Ansan Branch, imprisonment with prison labor for not less than two years and with prison labor for not more than eight months, to the Suwon District Court.

The trial is pending in the appellate trial, and "the defendant" is the defendant on May 9, 2019, imprisonment with prison labor for 8 months for the crime of fraud and damage to property in the Suwon District Court's Ansan Branch on May 9, 2019.

On November 22, 2019, after having been sentenced to two years, the judgment became final and conclusive, and applied for an amendment to the bill of amendment to the bill of amendment. The defendant's side is the defendant.

The Court has consented to this, and this Court has permitted it.

2) Before consolidation, 2019 Highest 280 Of the cases 2019 Highest 2759

3) The prosecutor applied for examination as evidence of a written statement or investigation report (victim’s hearing of statements) stating the statement of victimN. However, the defendant is not guilty.

As evidence has not been admitted by the victim who made the original statement, it is not admissible as evidence (this court is not admissible as evidence).

From December 24, 2019, to May 15, 2020, the victim sent a writ of summons of witness nine times to the victim. The victim sent the writ of summons of witness on two occasions (the victim's February 23, 202, 2020).

520. A summons of the witness was served but did not appear in the court. This court shall hold a warrant of detention against the victim, 2020, 5, 26 and

(Witness AR) was issued, but this section was not executed. The court, at the 8th trial date (2020, June 3, 2020), shall appoint the witness of the public prosecutor as the victim.

The ruling of evidence was revoked, and the above ruling of evidence was dismissed. In the process, the prosecutor made full efforts for the attendance of the witness.

Since the fact was not clearly explained, there is no room for admissibility of evidence under Article 314 of the Criminal Procedure Act (Supreme Court Decision 11 January 2007).

[Reference to the Supreme Court Decision 2006Do7228]

4) However, among the facts charged, the part that the defendant referred the victim and his/her relatives to "forely poor students" has sexual meaning.

There is room to see that ① evidence to support the fact that the defendant made such a statement is the statement of the defendant at the time of the police investigation.

(2) The defendant, even though she was found to be "I am bad to ask the police questions as to whether I am "I am bad, I am bad, I am we bed. I am."

Habi Ham Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Li Lib Li Li Li

It is possible to engage in a campaign, and physical strength is a national force. Such a finite finite finite finite finite finite finite finite finite finite finite

(3) In particular, there is a possibility that the defendant was tending to respond to the police's questions in mind that he would avoid his mistake.

The defendant was determined in that Q Q, together with the victim, did not completely mention the above end in the investigative agency or in this court.

In other words, it is doubtful whether the defendant made the above remarks. In fact, it is doubtful that the defendant is "aly bad student" for the victim's and the victim's relatives.

Even if it is assumed that the physical strength was said to be the national force, the physical strength was merely merely the national force, and the sexual significance was deemed to exist.

It is hard to say.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제16조 제2항

-아동ㆍ청소년의 성보호에 관한 법률

-장애인복지법 제59조의3 제1항

-청소년의 성보호에 관한 법률

-청소년의 성보호에 관한 법률 제56조 제1항