(영문) 광주고등법원 2021.01.14 2020노358 | 리걸엔진

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(영문) 광주고등법원 2021.01.14 2020노358

성폭력범죄의처벌등에관한특례법위반(주거침입강제추행)등

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Defendant

In addition, all appeals filed by the respondent for the attachment order, the requester for the protective order, and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The lower court’s sentencing is too unreasonable for the Defendant and the requester for the attachment order, and the requester for the protective observation order (hereinafter “Defendant”).

B. Prosecutor 1) In light of the fact-misunderstanding and misunderstanding of legal principles (as to the primary facts charged), the Defendant intentionally committed the instant crime by using the elevator space with the victim who is aware that the victim is a young student, but does not have any awareness of his/her age, and the Defendant applied for the victim on the side of the elevator door and met his/her sexual organ with the victim’s sexual organ is an act of causing the general public to feel a sense of shame, aversion, and fear, and infringing sexual freedom, the Defendant’s act should be deemed as an indecent act by force.

Nevertheless, the lower court erred by misapprehending the legal doctrine on the crime of indecent act by mistake of facts and by misapprehending the legal doctrine on forced indecent act.

2) The sentence of the lower court’s improper sentencing is too uncomfortable.

2. Determination

A. Judgment 1 on the Prosecutor’s misunderstanding of the facts and misapprehension of the legal principles) The summary of this part of the facts charged is as follows: (a) the Defendant discovered the victim C (the name, the age of 17 years) in the vicinity of the Mapo-si B apartment house (the age of 23:36 on June 26, 2020; (b) attempted to commit an indecent act against the victim; and (c) went through the joint entrance of the above apartment △△△△△△△ apartment, which is the victim’s residence; and (d) boarded the elevator, which is the victim’s residence, boarded the victim into the elevator where the victim was aboard;

By committing self-defense, the victim was forced to commit an indecent act.

2) The lower court determined that the Defendant committed violence or intimidation to the extent that it could make it difficult for the Defendant to resist the victim, in light of the facts acknowledged by the evidence adopted by the lower court and the following circumstances revealed therefrom.

In addition, the defendant's act cannot be seen in consideration of the age of the victim.

유사 판례

-대전고등법원 (청주) 2018.04.19 2017노182

-부산고등법원 (창원) 2017.06.28 2017노92

-서울고등법원 2018.05.03 2018노151

-서울고등법원 2017.12.21 2017노2727

-서울고등법원 2016.08.18 2016노1759