The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

Sexual assault, 40 hours against the defendant.

1. Summary of grounds for appeal;

A. The “child pornography” under the Act on the Protection of Children and Juveniles against Sexual Abuse refers to a expressive material that can be clearly perceived as a juvenile from an average point of view of society, and the court below erred by misunderstanding of facts or misunderstanding of legal principles, although the Defendant’s photograph received from the victim did not have the face of the victim and sent only the sound part of the victim, and the above photograph was not clearly recognizable as a juvenile.

B. The lower court’s sentence of unreasonable sentencing (three years of imprisonment, etc.) is too unreasonable.

2. Determination

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

Determination as to whether or not a mental or physical disorder prescribed in Article 10(1) and (2) of the Criminal Act exists and degree of the mental or physical disorder is not necessarily bound by the opinion of a specialized appraiser as a legal judgment, but can be independently determined by the court by taking into account all the circumstances such as the type and degree of the mental or physical disorder, motive and background of the crime, means and mode of the crime, the behavior of the defendant before and after the crime, and degree of reflectivity (see, e.g., Supreme Court Decision 94Do581, May 13, 1994). If the defendant is registered as disabled and the criminal investigation agency has continuously asserted his or her mental or physical disorder from the criminal investigation agency, even if the defendant did not express his or her mental or physical disorder in the statement of grounds for appeal, the mental or physical disorder

(see, e.g., Supreme Court Decision 2009Do870, Apr. 9, 2009). In this case, the Defendant was registered as a person with intellectual disability 3, and the mother of the Defendant was in trust relationship from the time of the police investigation, and the Defendant’s intelligence was normal.