(영문) 서울고등법원 2015.4.30.선고 2015노627 판결

In the process of pointing out the state of the victim's appearance defect, the defendant was only shaking the victim's end end, and the defendant did not have any intention to commit an indecent act against the victim.

B. Legal principles

The defendant's act of guiding the students of the teachers, as stipulated in Article 20 of the Criminal Act.

Since it falls under this category, illegality is excluded.

C. Unreasonable sentencing

The punishment (one million won of fine) sentenced by the court below against the defendant is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

1) Comprehensively taking account of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the lower court, the Defendant may fully recognize the fact that the Defendant posted the materials by taking the victim’s pathy.

① 피해자는 수사기관에서 "피고인이 '왜 이렇게 치마가 짧냐'고 하면서 치마를 손으로 들췄어요", "제 손등을 다른 손으로 쓰다듬었을 때는 부담스러웠을 뿐이고, 치마 들출 때는 수치스러웠어요", "제 다리를 보면서 치마를 손으로 들췄어요", "제 치마를 완쪽에서 들어 올렸는데 제 치마가 접혀져서 속바지가 훤히 다 보였어요"라고 진술하였다. 이 사건 당시 피해자와 한 교실에 있던 F은 수사기관에서 "피고인이 교실 책상 사이사이를 걸어 다니고 있었는데, 피해자 옆에 서시더니 갑자기 손으로 피해자의 교복 치마를 올리면서 '너 왜 이렇게 치마가 짧아'라고 말하는 거예요. 그러면서 피해자의 치마가 완전히 올라갔고 치마 안에 입은 속바지가 다 보였어요"라고 진술하였다. 이와 같은 피해자와 F의 각 수사기관 진술은 그 진술의 경위, 내용의 일관성, 피고인과의 관계 등에 비추어 볼 때 그 신빙성을 충분히 인정할 수 있다.

② The victim stated in the court of the first instance that “the Defendant did not scam and scam, and even scam scam.” However, it is difficult to believe in light of the following: (a) the victim’s statement in the court of the first instance was made not only by agreement with the Defendant, but also under the circumstances where the victim’s parents complained of the Defendant’s wife against the Defendant; and (b) the victim responded to the question, “I have long been exposed to the speed,” in the court of the first instance, that “The time during which scam scam is equal.”

2) The Defendant’s appearance of a female student under the age of 16 on the part of the victim is an exercise of force against the victim’s will, and can be objectively evaluated as an act that causes sexual humiliation or aversion to the general public and goes against sound sexual morality. Meanwhile, it does not require any subjective motive or purpose to stimulate, arouse, and satisfy sexual humiliation as a subjective element necessary for the establishment of the crime of indecent act by compulsion (see Supreme Court Decision 2013Do5856, Sept. 26, 2013). Therefore, the Defendant’s intentional act cannot be denied solely on the ground that the Defendant committed the act as seen earlier for the purpose of guiding the victim, or that the Defendant did not regard the Defendant as deceiving the victim.

3) Therefore, the judgment of the court below cannot be said to have erroneous determination of facts as alleged by the defendant. This part of the defendant's assertion is without merit.

B. As to the misapprehension of legal principle

“Acts which do not violate social norms” under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms, and therefore, in order for a certain act to constitute a justifiable act, the requirements such as legitimacy of motive or purpose of the act, reasonableness of the means or method of the act, balance between the protected legal interest and the infringed legal interest, urgency, and other means or methods except the act (see Supreme Court Decision 2004Do8530, Feb. 25, 2005).

In light of the aforementioned legal principles, it cannot be seen as an act of raising the appearance of the victim, who is a teacher, by a considerable means or method, during the process of pointing this out. Therefore, the Defendant’s act does not constitute a justifiable act. This part of the Defendant’s assertion on unreasonable sentencing is without merit.

The defendant agreed with the victim, and the victim and his legal representative do not want to be punished by the defendant. The defendant has no history of criminal punishment.

However, the instant crime was committed in a classroom, which is open to the public by the Defendant under the pretext of guiding a student, and the nature of the crime is very bad. The victim appears to have caused considerable sexual humiliation due to the instant crime. Nevertheless, the Defendant did not appear to have a genuine attitude to deny the instant crime, and did not seem to have a genuine attitude. In full view of all the sentencing conditions in the instant argument, such as the Defendant’s age, character and conduct, and environment, the sentence imposed by the lower court is too unreasonable. This part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.