(영문) 서울고등법원 2020.12.3.선고 2020노458 판결

Defendant shall be punished by a fine of KRW 5,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Reasons

1. Summary of grounds for appeal;

(a) Mental illness;

At the time of committing the instant crime, the Defendant was in a state of mental disability with excessive drinking.

B. Unreasonable sentencing

The sentence of the lower court (the fine of KRW 10 million, etc.) is too unreasonable.

2. Determination

A. As to the claim of mental disability

According to the evidence duly admitted and examined by the court below, it is recognized that the defendant drank alcohol at the time of the crime of this case.

However, in light of the above evidence’s circumstances, means, Defendant’s behavior before and after the crime, etc., it does not seem that the Defendant did not have a weak ability to discern things or make decisions at the time of the crime in this case ( even if the Defendant was in a state of mental disability, so long as he/she did not have the ability to discern things by his/her own responsibility, Article 10 of the Criminal Act is excluded pursuant to Article 20 of the Act on Special Cases Concern

B. As to the assertion on unreasonable sentencing, the instant crime is an indecent act against a child under the influence of alcohol, and the nature of the crime is not good. The instant crime appears to have led not only to the victimized child, but also to the victimized children, and also to the children, who were in the same place, to feel mental shock and fear.

However, according to the sentencing data submitted in the trial as well as the confession and depth of the Defendant’s crime of this case, according to the various sentencing data submitted in the trial, it is thought that the Defendant would not commit any similar crime in the future clearly because of his well-being, there is a need for special consideration from a criminal correctional point of view for the Defendant who has experienced a shocking case in an influenced family environment, and experienced psychological trauma, and there is the need for special consideration from a criminal correctional point of view. The Defendant currently lives in good faith as the support of his wife and her child; the Defendant has no record of crime; the Defendant has no record of criminal history; the Defendant’s age, character, character and environment, motive, means and consequence of the crime; and other conditions of sentencing specified in the argument of this case, such as the circumstances after the crime, etc., it is recognized that the sentence of the lower court is somewhat unreasonable.

3. Conclusion

Since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and the following is ruled again.

【Discriminary Judgment】 Summary of Criminal Facts and Evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is the same as the corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the

Application of Statutes

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and Article 298 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act ( Taking into account the preceding circumstances favorable to the defendant)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

The proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 16622, Nov. 26, 2019); the fact that the registration of personal information of the defendant against the defendant, and the completion of a sexual assault treatment program can be deemed to have an effect of preventing recidivism even to a certain extent due to the order of disclosure or notification; and other circumstances such as the disadvantages and anticipated side effects and side effects that the defendant suffers, and the defendant's age, occupation, home environment, social relationship, and motive, means, and consequence of the instant crime, there are special circumstances where disclosure and notification of personal information of the defendant may not be disclosed or notified.

1. Exemption from an employment restriction order;

Article 56(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse, the proviso to Article 59-3(1) of the Act on Welfare of Persons with Disabilities (in light of the criminal records, etc. of the defendant, in addition to the aforementioned reasons for exemption from disclosure order and notification order, it is difficult to see that the defendant has habits against sexual crimes against children, juveniles, or disabled persons, and in light of the defendant's age, family environment, employment restriction order, disadvantage inflicted on the defendant due to such employment restriction order, and the preventive effect of sexual crimes that may be achieved thereby, there are special circumstances where employment should not be restricted to the defendant) 2-b of the reason for sentencing.

Registration of Personal Information

Where a judgment of conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency pursuant to Article