207No399 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims thereof (13)

Minor Rape, etc.)

Ga-O

Seo-gu, Seo-gu, Seo-gu

(1) In the case of the school in the Hamong-gun of the place of registration

Prosecutor

○0

Attorneys Park OO (Korean)

Gwangju District Court Decision 2007Gohap353 Decided November 29, 2007

June 19, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of eight million won.

When the defendant does not pay the above fine, the defendant shall have the period converted the amount of 50,000 won into one day.

shall be confined in a workhouse.

The number of detention days prior to the pronouncement of the judgment below shall be included in the period of detention in the workhouse.

1. The facts charged in this case

A. Main facts charged

On October 13, 2006, the Defendant was sentenced to two years of suspension of the execution on October 21, 2006 at the Gwangju District Court, who was sentenced to two years of imprisonment for a violation of the Military Service Act, and the judgment became final and conclusive on October 21, 2006. On September 11, 2007, the Defendant discovered that ○○○ was in progress through an elevator open door while waiting for an elevator to return to the family located in the Seo-gu ○○ apartment located in Gwangju, Seo-gu. On September 11, 2007, the Defendant: (a) discovered that ○○ was waiting for an elevator; (b) made an elevator using the difference in which there is no other person listed with the victim getting on board the elevator and getting off from 16th floor, followed the victim from the elevator; and (c) made the victim think that she was arrested in the blank atmosphere; and (d) made the victim's her stroke and her scoping out to the rear end of the victim.

B. Preliminary charges

Around 17:00 on September 11, 2007, the Defendant discovered that there was an elevator from the victim's high ○○○○ (the life of August 14, 2000) through an open door of the elevator while waiting for the elevator in order to return to the family located in Seo-gu, Seo-gu, Seo-gu, Gwangju, about 17:00, the Defendant: (a) discovered that there was an elevator; (b) taken off the elevator with the victim, using the gap where there is no other person; (c) kid the victim's view with the victim's hand; and (d) taken off the elevator from the elevator on the 16th floor with the victim's back; and (d) took the victim's back from the elevator with the victim's back, she thought that she was arrested in the blank atmosphere; and (d) she took the victim's hand on the shoulder part of the victim, and (e) taken the victim's back into the back by openly cutting it into the air.

2. The judgment of the court below

Of the facts charged in the instant case, the court below found a minor under 13 years of age, who is the primary charge of indecent act by compulsion. According to the evidence submitted by the prosecutor, the court below found the defendant guilty of the crime of indecent act by compulsion on the ground that it is difficult to view that the defendant committed an indecent act as a constituent element of the crime of indecent act by compulsion on the part of the victim without any physical contact with the victim, on the ground that it is difficult to view that the defendant committed an indecent act by compulsion on the part of the victim under 13 years of age, who is the primary charge of the instant charges, committed an act of indecent act by indecent act by compulsion on the part of the victim. However, according to the evidence submitted by the prosecutor, the court below found the defendant guilty of the crime of indecent act by assault or intimidation on the part of the victim.

3. Summary of grounds for appeal by a prosecutor;

A. misunderstanding of facts and misapprehension of legal principles

The defendant committed an indecent act against the victim's will in the presence of the victim who took 7 years of age back to the 18th emergency exit and left down from the fear of fear. Although the defendant's act aims at the interest of sexual humiliation, stimulating, or satisfaction, and makes the general public feel sexual humiliation or hate sentiment, it constitutes an indecent act in the crime of indecent act by compulsion, the court below erred in finding that there is no assault and intimidation as the content of indecent act by compulsion, and thereby, by misunderstanding the legal principles on indecent act in the crime of indecent act by compulsion, the defendant's act did not constitute an indecent act in the crime of indecent act by compulsion.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant (a fine of 5 million won) is too unhued and unfair.

4. Judgment of the court below

A. The issues of the instant case

The key issue of this case is whether the defendant's act of self-defense by taking the victim of seven years of age from the elevator of apartment into stairs against his will and taking his sexual organ out in the presence of the victim can be seen as an indecent act in the crime of indecent act by compulsion.

B. Whether to recognize indecent act in the crime of indecent act by compulsion

(1) An indecent act in the crime of indecent act by compulsion

In the crime of indecent act by compulsion, indecent act means an act that causes sexual humiliation or suspicion to the general public and is contrary to good sexual moral sense, and thus infringing on the victim’s sexual freedom. Whether it constitutes such an act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the person who committed the act and the victim prior to the said act, circumstances leading to the said act, specific manner leading to the act, objective situation surrounding the act, sexual morality, etc. (see Supreme Court Decision 2001Do2417, Apr. 26, 2002).

(2) Facts and determination of recognition

살피건대, 원심에서 적법하게 채택하여 조사한 증거들에 의하여 알 수 있는 다 음과 같은 사정 즉, 피고인은 이 사건 범행 당시 엘리베이터 안에서 피해자의 볼을 꼬 집고 피해자가 16층에서 내릴 때 자신도 따라 내린 다음 피해자의 어깨를 손으로 잡고 계단을 이용하여 18층 계단으로 피해자를 데리고 간 점, 피고인은 피해자가 극도의 공 포상태에서 피고인에게 '잡아가는 것 아니냐' 고 물었음에도 위와 같이 피해자의 어깨를 잡고 강제로 피해자를 계단으로 올라 가게 한 점, 피고인은 범행 장소에 이르러 바지 와 팬티를 내리고 피해자에게 성기를 보여주고 자위행위를 하였고, 피해자는 겁에 질 려 비상구의 문고리를 잡고서 나가려고 하였던 점, 이 사건 범행 장소는 퇴로가 없는 폐쇄된 장소였던 점 등을 종합하면, 피고인은 7세밖에 안 된 어린 피해자를 폐쇄된 공 간으로 데리고 가 피해자가 꼼짝 못하도록 자신의 실력적인 지배하에 둔 다음 피해자 에게 성적 수치심과 혐오감을 일으키는 자신의 자위행위 모습을 보여 주고 피해자로 하여금 이를 외면하고 피할 수 없게 하였던 것이므로 피고인의 위와 같은 행위는 강제 추행죄에 있어 추행에 해당한다.

C. Sub-committee

Therefore, the court below found the defendant not guilty on the ground that there is no evidence to prove the primary charges of this case, and found that the court below erred in the misapprehension of the rules of evidence or by misapprehending the legal principles on indecent act in the crime of indecent act by force.

5. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

1.As set forth in paragraph A(a) of this Article.

Summary of Evidence

1. The defendant's oral statement in court;

1. A protocol concerning the suspect examination of the accused;

1. Statement of the police statement on ○○;

1. On-site photographs of the elevator;

Application of Statutes

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

Article 8-2 (3) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and Article 298 of the Criminal Act

(Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

It is so decided as per Disposition for the above reasons.

Note (Presiding Judge)

Park Hong-ro

Kim Dok Kim