Defendant

Both parties

Admonishment decoration (prosecutions) and diversification (public trial)

Law Firm Oun, Attorney Park Jong-ok

Suwon District Court Decision 2018 Godan1386 decided September 12, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Seized evidence 7 shall be confiscated.

20,000 won shall be additionally collected from the defendant.

Of the facts charged in this case, the charge of indecent act against a mentally ill person is acquitted.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts (indecent act against a mentally disabled person)

On the day of the instant case, the Defendant and the Nonindicted Party met to engage in sexual traffic, and the phiphone medication did not go against the Nonindicted Party’s will, thus, the Defendant did not commit an indecent act against the Nonindicted Party by force.

(2) Unreasonable sentencing

The sentence of the lower court (one year and six months of imprisonment, and 40 hours of order to complete a sexual assault treatment program) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Judgment on the defendant's assertion of mistake of facts

A. Summary of this part of the facts charged

On March 11, 2018, from around 01:35 to 03:50 on the same day, the Defendant provided the victim non-indicted in the “○○ hotel” room located in △△△△△△△△△, with a optophone, and had the victim, who was in a state where the victim was unable to discern things or make decisions due to drugs, resist or refuse to resist, commit an indecent act against the victim by using the circumstance that the victim does not resist or refuse to resist. The victim, who was making shower in the toilet, had the victim lick the victim’s sexual organ immediately, let the victim lick the victim’s sexual organ, return the victim back to theus of the victim’s resistance, and then injected the victim’s finger into the victim’s anus. The Defendant injected the h to the victim’s finger, separated the hick of the shower’s hick, and injected it into the victim’s harbor.

Accordingly, the defendant committed an indecent act by force on a person with a weak disability who has the ability to discern things or make decisions due to drugs.

B. The judgment of the court below

In full view of the evidence presented in the judgment below, the court below convicted the defendant of the above facts charged.

C. Judgment of the court below

Comprehensively taking account of the following circumstances acknowledged by the record, the evidence submitted by the prosecutor alone is insufficient to recognize the fact that the defendant committed an indecent act against a person with a mental disability by force.

① The Nonindicted Party stated in the court of the trial that “The date of the instant case was the third time with the Defendant, and agreed to engage in commercial sex acts. In the previous years, the Defendant and the Defendant sold Costing or engaged in commercial sex acts in return for money.” On the day of the instant case, the Nonindicted Party and the Defendant were to pay the price for commercial sex acts at the beginning and to engage in commercial sex acts under the agreement. The Nonindicted Party was actually paid KRW 300,000 from the Defendant after having left the motel.

② In relation to the administration of philophones, the Nonindicted Party stated in an investigative agency that “When the Defendant met on the day of the instant case, the Defendant saw her to drink together,” and stated that “I wish to do so. I wish to do so only once but I wish to do so, and the Defendant did not think that I want to do so. I want to see that I do not want to do so. I want to do so. I want to see that I want to do so, and I want to do so. I had the Defendant take injection to his arms and her arms, and then see it in the first instance court.” The Nonindicted Party made a statement to the same effect in the first instance court. The Nonindicted Party was aware of the fact that “I am,” prior to entering the Defendant and the her motherel, the Nonindicted Party had known that “I am,” the act of using philophones mean the act of using phiphones, and given implied consent or consent to the administration of philophones.

③ The Defendant injected philopon into the Nonindicted Party’s arms, and according to his photograph taken on the day of the instant case, the Nonindicted Party was unable to take the philopon. According to the Nonindicted Party’s photograph, there was no pattern of booming the bronon several times, or the bronon, and there was no form of holeing the bronon. If the Nonindicted Party did not cooperate with the Nonindicted Party due to the brononing of the arms or the brononing of the bronon, it would have been difficult for the bronon injection as above.

3. Conclusion

The Defendant’s assertion of misunderstanding of facts is with merit, and the judgment of the court below is not guilty, and the remaining crimes are treated as concurrent crimes under the former part of Article 37 of the Criminal Act, and a single sentence is imposed against the Defendant. Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the Defendant and the prosecutor’s assertion of unfair sentencing, and the judgment below is again ruled as follows.

The criminal facts recognized by this court are identical to each corresponding column of the judgment of the court below, except where the part of the judgment of the court below regarding "an indecent act against a person with mental or physical disability" is deleted, "3." in the part concerning "3. Larceny" is deemed "2." and "4. Offense of Violation of the Road Traffic Act" in the part concerning "4. 3.," and such facts are cited in accordance with Article 369 of the Criminal Procedure Act.

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

Articles 60(1)2, 4(1), 2 subparag. 3(b) of the Act on the Control of Narcotics, Etc., Article 329 of the Criminal Act, Article 148-2(3), and 45(2) of the Road Traffic Act, each choice of imprisonment with prison labor,

1. Aggravation for concurrent crimes;

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

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

The crime of this case is a bad crime that the defendant administered a phiphone with the Nonindicted Party, steals the mobile phone possessed by the Nonindicted Party while the latter, and drives a car in a situation where it is apprehended that the latter would not drive the car normally due to drugs. The Defendant committed the crime of phiphone medication even though he had the history of being sentenced to the suspension of the execution of imprisonment due to the crime of phiphone medication, and even if he had the history of being sentenced to the suspension of the execution of imprisonment.

However, an agreement has been made with the victim of larceny.

Other conditions for sentencing, such as the age, character and conduct, environment, and circumstances before and after the crime, shall be determined as per the disposition.

The summary of the facts charged against the defendant is as stated in 2-A(A) and as stated in 2-3(c) of the Criminal Procedure Act, it constitutes a case where there is no proof of criminal facts for the same reason, and thus, the defendant is acquitted pursuant to the latter part of Article

Judges Song Jin-jin (Presiding Judge)