(영문) 서울서부지방법원 2019.8.12.선고 2019노485 판결

The defendant shall be ordered to complete a sexual assault treatment program for 80 hours. The defendant shall be subject to the restriction on employment for each three years at child and juvenile-related institutions, etc. and welfare facilities for disabled persons.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

At the time of the instant case, the victim consented to physical contact, and there was no assault or intimidation, and the Defendant was bound to recognize that the victim consented, and there was no intention to commit an indecent act.

B. Unreasonable sentencing

The punishment of the court below against the defendant (the imprisonment of eight months, the order to complete a sexual assault treatment program 80 hours, and the order to complete an employment system three years) is too unreasonable.

2. Ex officio determination

We examine ex officio prior to the judgment on the grounds for appeal by the defendant.

Article 59-3(1) of the Act on Welfare of Persons with Disabilities (Act No. 15904) (amended by Act No. 15904), effective June 12, 2019, when the court reports a sex offense, the main text of Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904) provides that an order to operate welfare facilities for persons with disabilities or to prohibit persons from providing employment or actual labor to persons with welfare facilities for a certain period from the date on which the execution of the punishment or medical treatment and custody is completed, suspended or exempted (where a fine is sentenced, the date on which the punishment becomes final and conclusive) shall be sentenced simultaneously with the judgment of a sex offense case, and Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) provides that "Article 59-3(1) of the Act on Welfare of Persons with Disabilities applies to persons with no final and conclusive judgment."

The crime of indecent act by compulsion constitutes a sex offense to which Article 59-3(1) of the Act on Welfare of Persons with Disabilities applies, and thus, this court ought to determine whether to issue or exempt an employment restriction order to the Defendant pursuant to Article 59-3(1) of the Act on Welfare of Persons with Disabilities. Considering the criminal records of the Defendant, methods of crime, relationship between the Defendant and the victim, circumstances before and after the crime, etc., there is no special circumstance that does not significantly lower the risk of recidivism or otherwise restrict employment. Therefore, the court of this case should issue an employment restriction order to the Defendant at the same time as the judgment of this case, and the employment restriction order is an incidental disposition that is imposed simultaneously with the judgment of the lower court, and thus, it is impossible to maintain the lower

However, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.

3. Judgment on misconception of facts and misapprehension of legal principles

A. The crime of indecent act by compulsion includes not only the case where the other party commits an indecent act after making it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is recognized as an indecent act. In this case, inasmuch as the act of assault does not necessarily require the degree of suppressing the other party’s intent, and the exercise of force against the other party’s will is contrary to the other party’s intent, the indecent act is objectively against the other party’s sexual freedom. (see, e.g., Supreme Court Decisions 91Do3182, Feb. 28, 1992; 94Do630, Aug. 23, 1994). The act of indecent act is objectively against the other party’s intent, gender, age, relationship between the offender and the victim prior to such act, specific circumstances leading to such act, objective attitude of the act, and sexual morality in the age, etc. (see, e.g., Supreme Court Decision 200Do4271, Apr. 26, 2006).

B. We examine the defendant's assertion that there was no assault or intimidation, and the victim consented, and the defendant did not have the intention of indecent act by compulsion.

According to the evidence duly adopted and examined by the court below, the following facts can be acknowledged:

① The victim made a consistent statement at the investigative agency and the court below specifically regarding the circumstances before and after the instant indecent act, the method of indecent act, and the Defendant’s remarks and actions at the time. The main parts of the statement are as follows: “The Defendant’s hand starts with the inside of bucks, bucks, and the inside of bucks, and they called “I am good and I am good,” and “I would like to make a report on the Defendant’s entry. I would like to see how I want to see how I will do so.” Moreover, I would like to see that I would like to see the Defendant’s hand, and that I would like to see how I want to see how I will do so, and that I would have to refuse to see that I would have come to know about how I would have come to do so.”

② 이 사건 이후 같은 날 저녁에 피고인이 '재밌었어요!! ㅋㅋㅋ ㅠㅠ'라는 메시지를 보내자 피해자가 '네! 위험했지만'이라고 답했고, 이에 대하여 피고인은 'ㅋㅋ 죄송 합니다 ㅠㅠ'라고 답하였다. 며칠 후 피고인이 '아 ㅠㅠ, 혀 ㅜㅜ, 맛이 생각나'라는 메시지를 보내자 피해자가 '무슨 맛이었어요?'라고 물었고, 이에 대하여 피고인이 '딸기촉 감이었고, 맛은 달고나, 설탕묻힌 딸기라고 정의해볼게요 ㅋ'라고 답하자 피해자는 '진짜 깜짝 놀랐었는데'라고 말하였고, 이에 대하여 피고인은 '죄송 ㅜㅜ 합니다 ㅠㅠ'라고 답하였다. 며칠 후 피고인이 'OO양 배 만지고 싶어졌음 ㅋ'라는 메시지를 보내자 피해자가 '으응? 지난번에 만져보셨잖아요 ㅋㅋㅋ 많이이이이이이이이'라고 답하였고, 피고인이 '더 만질께'라고 하자 피해자는 '그래도 안 돼영, 끝끝끝, 위험해요, 등 허벅지 안쪽 엉덩이 팔 다 만졌으면서 ㅋㅋㅋㅋㅋ'라고 답하였으며, 피고인이 '기억하고 있다!' 라고하자피해자가'응그니까끝!!!!'이라고하고,이에대하여피고인은'네TI,죄 송합니다 ㅠㅠ'라고 답하였고, 피해자는 '손이랑 얼굴 빼곤 금지여요 위험한 B님 ㅋㅋ ㅋㅋㅋㅋㅋㅋ'라고 답하였다. 피해자의 위 진술과 위 메시지 내용을 종합해보면, 피고인은 피해자의 의사에 반하는 유형력을 행사하여 피해자의 허리, 허벅지 안쪽, 음부 근처 등을 만지고 피해자의 혀를 끄집어내어 빠는 등 피해자의 성적 자유를 침해하는 추행행위를 하였다고 인정된다. 피해자는 사진 촬영에 응한 나이 어린 모델지망생으로서 탈의한 채로 이불을 몸에 말고 있는 상태에서 예상치 못한 추행을 당하였고, 피고인이 이름이 알려진 사진작가라는 점과 향후 피해자 자신의 평판과 진로에 대한 걱정 등으로 비록 강하게 거부의사를 밝히지는 못하였지만, 피고인에게 그만하라고 말하거나 피고인을 밀쳐내는 등으로 추행에 대한 거부의사를 밝혔으며, 이 사건 당시 피고인은 추행한 직후에 미안하다고 말하는 등 피해자의 의사에 반한다는 점을 피고인 스스로도 충분히 인식하고 있었다고 판단된다. 따라서 폭행이나 협박이 없었다거나 피해자가 동의하였다거나 강제추행의 고의가 없었다는 피고인의 주장은 받아들이지 않는다.

On the other hand, the victim sent and received the message as above and expressed his/her will that he/she did not agree to physical contact with the defendant in the future, but it is determined that he/she expressed his/her will in a friendly and prudent manner to maintain a smooth relationship with the defendant. On the other hand, the defendant asserts that the message "a criminal defendant is sent to this case" made a simple speech to the effect that he/she committed indecent acts by compulsion, or that he/she caused her intentional sense of responsibility, rather than freshing that he/she made a mistake. However, considering the content and expression of the above message and context, the defendant's argument cannot be accepted. We examine the defendant's argument that the victim's statement is not reliable

1) After the instant case, the victim and the investigative agency and the court of the court below tried to find out the reasons for giving and receiving G message in close relation with the Defendant at the time when the Defendant spreads the talk about B, which is significantly difficult to cope with, and that it would be difficult for the Defendant to go through or be prevented from entering the art industry. The Defendant, without considering the negative nature of the Defendant, thought that there was no way to keep the Defendant from being able to know that the Defendant was frighten, and that there was no way to receive the Defendant’s confession while maintaining a stable relationship with the Defendant. If naturally leading the conversation, the Defendant tried to make it possible to keep the most secret until the conversation was made, and to make it possible to keep the Defendant’s photograph clear until the conversation was made and have no negative thought. The Defendant made a statement to inform the Defendant that his photograph would not be used as a means to defend him.

Considering the Defendant’s age and social status at the time of the instant case, the victim’s age and social status, the relationship between the victim and the Defendant, and the characteristics of the instant case, etc., it appears that the victim was extremely difficult for the victim to act by resisting the Defendant or demanding apology immediately after the instant case, and the victim’s statement that the victim was given and received the message in close relation with the Defendant, as alleged by the victim, was sufficiently acceptable.

2) The victim stated at the investigative agency and the court below as follows on the reasons why he did not report immediately after the instant case and the reasons why he later filed a complaint. At the time, it was the same as stated in the lower court. At the time, it was thought that he could not be able to give up the report and that he could not be punished. It was possible to be buried in the industry. It was difficult to see that there were many thoughts that many victims would be sloping, and that it would be difficult for them to see that they would not be able to receive any other photograph because they did not know of the nature of the victim's body. It was too difficult to see that the victim might not be able to receive the report. It was so soon after the date of the report. The victim was asked to delete the Defendant's photograph by e-mail, but it was hard for the victim to think that he would have no other body.

3) After the instant case, the victim made a statement in the investigative agency and the court below as follows as to the reasons why he received the Defendant’s request that the Defendant had lost the pictures taken at the time of the instant case, and sent them to the Defendant a photograph. It is also true that he did not comply with the request of the investigative agency and the court below. If he did not comply with the request, he would be able to take the following actions. When he knows that he had the enemy’s intention with respect to the instant case, he would be imprisoned or threatened by the Defendant, she would be able to call the Defendant’s suspicion or threaten (at first), and the Defendant requested again to send the first photograph. The reason why the victim sent the first photograph, she did not want to raise the fact that he was in preparation and preparation, so doing, she did not agree with the above circumstances of indecent act before and after the instant case, the victim’s speech and behavior after the instant case, and the Defendant did not have any objective reasons to accept the victim’s testimony and behavior as seen above.

D. The Defendant stated that ① there was no fact in the prosecution, such as the victim’s statement, that there was no physical part of the victim’s body, even if her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her but her her her her her her her

Comprehensively taking account of the fact that the Defendant’s act of taking photographs of a photographer and the body of the model in hand during the break time is not generally caused, and that the act of leaving the body in hand is not generally caused, and that the victim took an interview with the reporter on February 28, 2018 and 1) from the time when the Defendant made a complaint on March 8, 2018 to the time when the Defendant made a statement at the prosecutor’s office on October 8, 2018, it cannot be deemed that the Defendant made a statement that there was a considerable time to look at the victim’s memory on the day when the victim was taken and the victim was taken at the time when the photograph was taken, and that there was a considerable time to look at the victim’s memory on the day when the Defendant took the above action and took memory, and that the Defendant made a statement that there was no such behavior in the prosecutor’s office due to the limitation of memory. The Defendant denied the criminal act with the victim and the victim cannot be denied any content clearly confirmed in G message, it is deemed that the Defendant committed itself.

Therefore, the defendant is recognized to have committed an indecent act against the victim's will with intention, and thus, the defendant's assertion of mistake of facts and misapprehension of legal principles is not accepted.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is again ruled as follows after hearing.

【Criminal facts constituting the crime of multi-use judgment】

The facts of the crime acknowledged by this court are identical to the statement in the corresponding column in addition to correcting "victim E (tentative name, leisure, age 21)" as "victim E (second name, age 22)" in the facts of the crime of the judgment of the court below. Thus, they are cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Summary of Evidence

The summary of the evidence recognized by this court is the same as the corresponding column of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 298 of the Criminal Act

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018); Article 2 of the Addenda to the Welfare of Disabled Persons Act (Act No. 15904, Dec. 11, 2018); Article 59-3(1) main sentence of Article 59-3(1) of the Act on Welfare of Persons with Disabilities

The Defendant, on the ground of sentencing, denies the crime by asserting that he was physically contacted with the victim under the agreement with the victim. The Defendant was aware of his name at the time of the instant investigation and trial. The victim appears to have suffered damage without having been aware of how to cope with unexpected indecent conduct in the process of photographing the Defendant and his photograph as a student of the early 20th college and model student. It is not good in that the Defendant well-known the victim’s circumstances and used them to commit the instant crime. The victim was committed a crime in a manner that he had committed the instant crime by using them. After the instant case, the victim did not have been aware of the fact of damage only to the nearest person, and did not have been understood and supported by his family. The victim did not have been aware of the fact of damage and made the instant complaint, and made several statements in the process of the instant investigation and trial, and it appears that his memory at the time of the instant case and suffered considerable mental pain or considerable mental pain. After the interview by the media, the victim and the Defendant after the interview from the media.

On the other hand, the defendant has no criminal record, must support his/her wife and his/her married, and the defendant's age, character and conduct, the circumstances of the crime of this case, and the circumstances after the crime are committed shall be comprehensively considered in determining the punishment as ordered.

If a conviction on a crime subject to registration becomes final and conclusive on the judgment of a sex crime subject to registration, the defendant is a person subject to registration of personal information under 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 relevant agency pursuant to

Disclosure Order, Exemption from Notice Order

Considering the Defendant’s age, occupation, criminal history, risk of recidivism, details of the instant crime, method and consequence of the instant crime, prevention of a sex offense to be registered through an order to disclose or notify the victim, protection effect of the victim, and anticipated side effects, etc., there is a special circumstance that may not disclose or notify the Defendant’s personal information. Accordingly, no order to disclose or notify the Defendant pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, proviso to Article 49(1) and proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse shall be issued.

Judges

Within the presiding judge;

Judges Ducules

Judge Choi Jong-young

Note tin

1) After an interview with a victim, the media reporter sent the victim with the Defendant to verify the facts, and immediately thereafter, the Defendant:

28. 16:08 to 23:35 telephone calls from 16:08 to 23:05, P twice from 16:05 to 16:07, and 16:11 telephone calls;

The Defendant sent G message ? ‘I’. In light of this, the Defendant had been reported around 20:19 on February 28, 2018.

It is judged that a person who conducts an interview was aware of being a victim.

심급 사건

-서울서부지방법원 2019.4.17.선고 2018고단3585

서울서부지방법원 2019.8.12.선고 2019노485

-대법원 2019.10.11.2019도12368

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제16조 제2항

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제47조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제49조 제1항