2015No1582 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a place of public gathering)

Indecent Acts in this section)

A

Defendant

Persons who are able to file a prosecution or a public trial;

Attorney B in charge of Law Firm C

Seoul Central District Court Decision 2014Ra8248 Decided April 15, 2015

August 21, 2015:

1. The judgment of the court below is reversed. 2. The defendant is innocent.

1. Summary of the grounds for appeal (the misunderstanding of facts and legal principles)

The defendant does not commit an indecent act against a victim as stated in the judgment below.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

피고인은 2014. 4. 30, 07:59경 부천시 소사구 부천로 1에 있는 지하철 1호선 부천역에서 용산역 방향으로 가는 전동차 안에서 주변이 혼잡한 틈을 이용하여, 피해자 D(여, 21세)의 등 뒤에 피고인의 몸을 밀착하고 무릎을 굽힌 후 성기를 앞으로 내밀어 피해자의 엉덩이에 붙이고 비벼댔다. 이로써 피고인은 공중이 밀집하는 장소인 지하철 전동차 안에서 피해자를 추행하였다.

B. The judgment of the court below

The court below found the defendant guilty of the facts charged based on the evidence established.

3. Judgment of the court below

According to the evidence submitted by the prosecutor, the fact that the body of the Defendant and D was in contact can be recognized at the time and place recorded in the facts charged. However, in full view of the following circumstances as seen above: (a) the evidence submitted by the prosecutor alone cannot be deemed as having been proven to the extent that it was caused by the Defendant’s indecent act; and (b) there is no other evidence to acknowledge it otherwise.

A. At the time, inside the train was very congested. The Defendant and other passengers than D also have their own significance;

The degree of contact with others, regardless of their body, has been to be able to reach.

B. It is true that there was a little time space between the Defendant and D’s body at the time of contact with the Defendant’s body. However, the surplus space was limited to what the adult can see. Even if the Defendant moves to the body in the surplus space, it is only possible to avoid the situation where the body is in contact with D’s body, and it was a situation where the body of another person is in contact with D’s body.

C. D and E make a statement that the Defendant was posted without leaving the entrance of the former vehicle even after the Defendant opened the entrance. However, the Defendant stated that he did not engage in any conduct following D. However, the Defendant merely stated that he was merely intending to listen to music by cutting the earphone of the mobile phone. However, there is no ground to conclude that such a defense was false.

4. Conclusion

Therefore, the defendant's appeal is with merit, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.The summary of the facts charged in this case is the same as Article 2-A (3). As seen in paragraph (3), the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure

The name of the presiding judge;

Judges Bo Il-ju

Judges Cho Jae-soo