(영문) 서울고등법원 2014.1.10.선고 2013노3117 판결

The part of the judgment of the court below regarding the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by Forced Minors under Fifteen years of age) shall be reversed.

A defendant shall be punished by a fine of 15,00,00 won for a crime in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor's indecent act under thirteen years of age).

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

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

The defendant shall order the completion of a sexual assault treatment program for 40 hours.

The prosecutor's appeal on the part of the Defendant's case concerning obscenity and the part concerning the case for which the attachment order is requested is dismissed, respectively.

Reasons

1. Summary of grounds for appeal (misunderstanding of facts and misunderstanding of legal principles);

A. As to the public performance and obscenity, it is difficult to expect that gambling ○○ (hereinafter “victim”) who is merely a fourth-year student of an elementary school and merely a ten-year student of an elementary school makes a statement by accurately memorying a certain point of time in the past where a specific case occurred; the victim’s external hair ○○ was transferred from the victim about the case on the day when the victim and the person subject to a request to attach an attachment order (hereinafter “Defendant”) was involved; and Park○ specified that the time was 2013 in the police; although Park○ did not clearly state the point of time of the above case at the court below, it was because the defendant did not clearly state his memory at the court below, but this is because he did not state his memory at the time after the lapse of time; even if the date was not clearly specified, it is sufficient to find the defendant guilty of this part of the facts charged, considering the legal principles as to the public performance of this case, despite the fact that there is no problem in guaranteeing the defendant’s right to defense.

B. As to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor indecent act under the age of 13), the Defendant’s act of having the victim take a bicycle and take a person on his/her own with no particular friendship by getting on and off the bicycle, and then having the victim listen to the victim’s knife with his/her hand so as to let the victim knife the knife, and then having the victim knife his/her hand, constitutes an indecent act that may adversely affect the formation of a child’s sexual identity and values, the lower court found the Defendant guilty of the remainder of this part of the facts charged.

2. Determination

A. Determination as to the public performance and obscenity

1) Summary of the facts charged

around 16:00 to 18: around 00, the Defendant discovered that the victim and his her her friend (n, 10 years of age) are playing in a slick frame in the ○○○○ Park, Seoul, ○○-gu, 853 ○○○○○ Park, and that the Defendant had a flicker and carried out a flicker and carried out a flicker and displayed her sexual organ to the above children.

2) Determination is based on the relevant legal principles (1) Article 245 of the Criminal Act provides that "an obscene act" refers to an act contrary to the concept of sexual morality by stimulating ordinary people's sexual desire and impairing normal sexual humiliation. The above crime does not require subjective sexual desire, and it does not require a subjective sexual purpose, such as sexual humiliation and satisfaction, and it is sufficient to recognize the obscenity of the act. However, Article 1. 41 of the former Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012) provides that "an act of causing sexual humiliation to 30 people, such as the exposure to or sexual humiliation, is merely 4 of the Criminal Act, and it is not deemed that an act of causing sexual humiliation to 40 of the Criminal Act is merely an act of causing sexual humiliation to 60 of the Criminal Act, and that the act of causing sexual humiliation to 30 of the Criminal Act, such as exposure to or sexual humiliation to other people, even if it is deemed that it constitutes an ordinary exposure to 4 of the crime.

Inasmuch as strict evidence of probative value, which leads to a conviction to the extent that there is no room for doubt, should be based on strict evidence. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that such conviction would lead to such conviction, the interest of the defendant should be determined even if there is doubt of guilt, such as the defendant’s assertion or defense is inconsistent or unreasonable.

In addition, the aforementioned strict proof includes all the specific criminal facts stated in the indictment by the prosecutor. In particular, since the date and place of the crime specified in the indictment is the main object of exercising the defendant's right of defense, the criminal facts should be recognized through strict proof, and even if such proof is insufficient, there should not be proof of the criminal facts on the ground that there is a probability that the crime was committed at another time and place (see Supreme Court Decision 2010Do1628, May 13, 201, etc.).

B) Defendant’s assertion

As to this part of the facts charged, the Defendant asserts that he did not publicly engage in obscene acts, and if the victim and his relative have seen the Defendant’s sexual organ, this would have observed that the Defendant appeared to see the urine from the trees near the play place due to her d○ Park.

C) Contents of the relevant person’s statement

① 피해자는 서울 보라매 원스톱지원센터에서 자신이 피고인의 성기를 목격한 경위에 관하여, ' 친구하고 미끄럼틀처럼 된 것을 탔는데 할아버지 ( 피고인 ) 가 고추를 내밀고 있어서 " 왜 내미냐 ? " 고 물어봤더니 " 바람을 쐬러 내놨다. " 고 하였다. 친구들과 놀고 있다가 보니까 보게 되었다. 지퍼 열어서 고추 보이게 한 상태에서 할아버지가 다른 행동을 한 것은 없다. 그 때가 작년 아니면 이번 때일 수도 있고 기억이 ( 잘 안 난다 ). .. .. . 이번 연도는 아니었던 것 같다. 날씨는 쌀쌀했던 것 같다. ' 고 진술하였다 .

② From the beginning of February of the year, 200, Park Jong-young, the victim’s appearance, at the court of original instance, told that the victim’s son and woman (the victim) would open to the park to the son and son in March of this year. Since the victim was at the time of the fourth year, the victim’s appearance was from March to April 2013.” However, the statement (Evidence No. 129 of the Evidence No. 129) prepared and submitted on May 10, 2013 was written as “The statement (Evidence No. 129 of the Evidence No. 129 of the Evidence No. 129) was written as follows.

D) Specific review

In light of the fact that the date and time of the instant facts charged was specified as “ around the spring of 2013,” but the victim, who directly appeared in the clothes of the Defendant, stated that 2013 was the same as the date on which the said case occurred, and that Park○’s above witness held from the victim as “as soon as February 2013, 2013 in the police,” but “as from March 2013 to April 2013, the court of the court below,” the evidence submitted by the prosecutor alone cannot be deemed to have been proven to the extent that there was no reasonable doubt as to this part of the facts charged by the Defendant, including the victim, by leaving his sexual organ around the spring of 2013, and there was no probability that the crime was committed in a time other than the date and time indicated in the facts charged.

나아가, 설령 피고인이 공소사실 기재 일시에 ○○○ 공원에서 성기를 꺼낸 사실이 있고 피해자를 포함한 아동들이 이를 목격하였으며 그와 같은 과정에서 피고인이 ' 바람을 쐬러 내놨다. ' 라는 말을 한 사실이 있다고 하더라도, 피고인이 ' 소변을 보기 위하여 공원에서 성기를 꺼낸 사실은 있고, 만약 아이들이 보았다면 그때일 것이다. ' 라고 변소하고 있는 점, 피해자 역시 ' 친구들과 놀고 있다가 보니까 ( 피고인이 성기를 옷 밖으로 꺼내놓은 것을 ) 보게 되었다. 지퍼 열어서 고추 보이게 한 상태에서 할아버지가 다른 행동을 한 것은 없다. ' 고 진술하였던 점 등에 비추어 보면, 피고인의 위와 같은 행위가 단순히 다른 사람에게 부끄러운 느낌이나 불쾌감을 주는 정도를 벗어나 일반 보통인의 성욕을 자극하여 성적 흥분을 유발하고 정상적인 성적 수치심을 해하는 음란행위에 해당하는 것이라고 단정하기도 어렵다 .

3) Sub-decisions

Therefore, the prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles on this part is rejected.

B. Judgment on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor indecent act under thirteen years of age)

1) Summary of the facts charged

On May 15, 2013: around 00, the Defendant discovered that the victim gets a bicycle at the place indicated in the paragraph (a) above, and committed an indecent act by force against the victim under 13 years of age, such as: (a) the victim gets a bicycle in front of the victim; (b) the victim prevents himself from standing in front of the victim; and (c) the victim gets the victim's hand by leading him to the victim's hand; and (d) the victim forced him to have his hand kis, etc. kis; and (e) the victim kisced against the victim's hand, etc.; and (e) the victim’s hand kisced against the victim's bicycle in order to escape from the victim's bicycle.

2) The relevant legal principles

The crime of indecent act by compulsion includes not only the case of indecent act after making it difficult to resist by resorting to violence or intimidation against the other party, but also the case where the act of assault itself is deemed an indecent act. In this case, as long as it does not necessarily require that the degree of suppressing the other party’s intention is to be restricted, the assault is against the other party’s will, regardless of its force, so long as there is the exercise of force against the other party’s will.

In addition, the crime of indecent act against a minor under the age of 13 under Article 7 (3) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012; hereinafter the same applies) is protected by the legal interest of "the right to form sexual identity and values without psychological disorder in a state where a child under the age of 13 is not an inappropriate sexual stimulation or physical influence from the outside." It is not necessary to have a subjective motive or purpose to stimulate sexual humiliation as a subjective element necessary for its establishment. It is not necessary to have the general and average person in the same place as the other party objectively causes sexual humiliation or aversion, and infringes on the victim's sexual freedom. Whether it constitutes such act is an infringement upon the victim's intent, gender, age of the victim and the offender from before the victim, the relationship between the offender and the defendant, the circumstances leading to the defendant's act and the surrounding circumstances of the 209th judgment.

The defendant asserts that age victims were sleeped by their descendants, etc. contingently with bad mind, and that they did not act in a park where people are sleep with sexual impulses, and that there is no fact that they interfered with the victim in the process.

C) Contents of the relevant person’s statement

① On May 3, 2013, 2013, the victim got a mixed bicycle in May 1, 2013 at the Seoul Bohsaw Support Center. The victim she skiddddd the her k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k's k'.

D) Specific review

The following circumstances, including the victim and the defendant's statement, were duly adopted and investigated by the court below, i.e., the victim had been viewed as the defendant at ○○ Park, etc. before and after the lapse of this case, and personnel affairs were carried out several times by the defendant. When the defendant knew that "the victim was bad," but there was no special relationship between the victim's name and address and conversations other than personnel affairs, the victim did not know that he did not have any other mental harm to the victim. ② The victim, at the time of the transfer of this case, knew that the victim did not have any mental harm to the victim by putting the victim's sexual humiliation out of ○○ Park, and it seems that the victim did not have any such harm to the victim's own will because the victim had no other mental harm because he had any other purpose of his own view of 'the victim' that the victim did not have any mental harm.' On the day of this case, it appears that the victim had no other reason to see that she had any mental harm caused to the victim.

Furthermore, it does not require a subjective motive or purpose to stimulate sexual desire to commit an indecent act against minors under the age of 13 as stipulated in Article 7(3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Thus, even though the Defendant did not engage in the above act in sexual impulses, but did so by the victim with his/her hand, the Defendant’s criminal intent may also be recognized in light of the behavior of indecent act as seen earlier and the circumstances at the time.

3) Sub-decisions

Therefore, the prosecutor's argument of misunderstanding of facts and misunderstanding of legal principles is justified.

C. Judgment on the part of the case for which an attachment order is requested

The lower court rendered a not guilty verdict on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor indecent act under the age of 13), which is the cause of the request for the attachment order of this case, and dismissed the request for the attachment order of this case under Article 9 (4) 2 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders, and as long as the prosecutor files an appeal on the case of the Defendant, it is deemed that the case for which the request for the attachment order was filed in accordance with Article 9 (8)

As examined earlier, the part concerning the Defendant’s violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor indecent act under the age of 13) among the Defendants in the lower judgment should be reversed on the ground that there was an error of misunderstanding of facts or misunderstanding of legal principles. However, this court’s selection and sentence of fines for a crime in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor indecent act under the age of 13) and Article 9(4)3 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders provides that the request for attachment order should be dismissed by judgment when imposing a fine on a specific criminal case. Accordingly, the lower court’s dismissal of the request for attachment order of this case is justified

3. Conclusion

Therefore, since the part of the judgment of the court below concerning the public performance and obscenity among the defendant's case and the prosecutor's appeal concerning the part concerning the request for attachment order is without merit, it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, and the prosecutor's appeal concerning the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the defendant's case of the court below among the defendant's judgment of the court below is with merit. Thus, pursuant to Article 364 (6) of the Criminal Procedure Act, the part concerning the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes among the defendant'

Criminal facts

As described in paragraph 2(b)(1).

Summary of Evidence

1. Partial statement of the defendant;

1. The examination record of each police suspect against the defendant;

1. The legal statement of the court below by Park Jong-○, a witness;

1. Investigation report and investigation report on children and disabled persons;

Application of Statutes

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

Article 7(3) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and Article 298 (Selection of Fines)

1. Discretionary mitigation;

Articles 53 and 55(1)6 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 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;

Article 4 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 11572, Dec. 18, 2012; hereinafter the same shall apply); Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. The reason for sentencing under the proviso of Article 38(1) and the proviso of Article 38-2(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012), where the disclosure and notification order is exempted, is that the Defendant was sentenced to two years of imprisonment with prison labor at the Seoul Southern District Court on January 15, 2010 and the judgment becomes final and conclusive for the crimes of this case other than the crimes of this case, such as the fact that there was a history of sex offense against the child, the Defendant did not make any effort to recover damage, and the fact that the victim wants to be punished by the Defendant is disadvantageous to the Defendant.

On the other hand, the fact that the degree of indecent act by compulsion of this case is not severe, that the defendant seems to have committed the crime of this case relatively contingently as the age of 67 years, and that the defendant is arguing about whether the crime of this case constitutes indecent act by compulsion, but he has to pay attention not to bring such an act again is favorable to the defendant.

In addition, the defendant's age, character and conduct, environment, family relationship, motive and background of the crime, circumstances after the crime, etc. shall be comprehensively considered, and the punishment shall be determined as per the order.

Registration and submission of personal information

If a 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, and thus is obligated to submit personal information to the competent agency pursuant to Article 43 of the Act on Special Cases concerning the Punishment

Judges

Judges Lee Jin-jin

Judges Giving a full-time position

Judges Kim Gin-han

Note tin

1) Article 3 subparag. 33 of the Punishment of Minor Offenses Act ("Act No. 3354, Dec. 3, 2006) provides excessive disclosure of the body of the public in place of damage.

applicable to a person who embarrasses or displeasure another person by exposing a place that must be made.

2) In addition, in light of the circumstances and circumstances of the instant crime, the degree of indecent act by compulsion, etc., readily concluding that the Defendant is in danger of recommitting

It is difficult to recognize the necessity of attaching an electronic device because it is difficult to do so.

심급 사건

-서울중앙지방법원 2013.9.30.선고 2013고합491

서울고등법원 2014.1.10.선고 2013노3117

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