2018No3409 Indecent Act by compulsion

A

Defendant

Maximum glass (prosecution), Appellants (public trial)

Law Firm private interest rate, Attorneys Jeon Soo-chul et al.

Attorney Park Jong-cheon

Busan District Court Decision 2018Dadan676 decided September 5, 2018

April 26, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for up to six months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to take a 40-hour course for sexual assault treatment and provide community service for 160 hours.

The defendant shall be ordered to place an employment restriction on children and juveniles-related institutions, etc. for three years.

1. Summary of grounds for appeal;

A. Error of mistake

As stated in the facts charged in the instant case, the Defendant did not commit an indecent act against the victim by deceiving the victim’s right side.

B. Unreasonable sentencing

The punishment sentenced by the court below (six months of imprisonment, 40 hours of order to complete a sexual assault treatment program, 3 years of employment restriction order) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

1) The judgment of the court below

The Defendant asserted the same purport in the lower court, and the lower court convicted the Defendant of the instant facts charged on the ground that the Defendant could recognize the facts of indecent act by force, taking account of the circumstances acknowledged by the evidence duly admitted and investigated.

2) The judgment of this Court

Comprehensively taking account of the circumstances indicated by the lower court and the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court and the lower court, the fact that the Defendant committed indecent act by force on the part of the victim as stated in the instant facts charged can be acknowledged. Therefore, the lower court’s determination is justifiable and the Defendant’

① The victim, from the investigative agency to the instant court, tried to open a toilet at the restaurant at the time of the instant case, she tried to turn the body back to the close door, and the Defendant her hand her left the right her body from the lower part of the body. In addition, the victim’s statement is consistently consistent with the purport that “The Defendant resisted the Defendant, but the Defendant denied the fact of indecent act, and the dispute arose between the Defendant’s daily behavior and the victim’s daily behavior.” The victim’s statement is difficult to find any portion inconsistent with the empirical rule, which is unreasonable or contradictory in itself.

② According to CCTV images installed at the scene of crime, the Defendant’s entrance is back and back, and the right side side of the Defendant’s right side toward the victim, the Defendant’s body is moving to the right side of the victim to the right side of the victim, and the victim’s body is moving to the right side of the victim, and then the victim’s face-to-face is confirmed. Accordingly, the victim’s statement is consistent with the victim’s statement.

③ The J also analysis of CCTV images seems to be clear that there was physical contact between the defendant and the victim in this court. Of CCTV images, the Defendant made a statement partially consistent with the victim’s statement to the effect that the Defendant’s grandchildren are highly likely to have contacted the victim’s body in the process of moving the CCTV to the right side adjacent to the victim and in the immediately preceding page of the victim’s back to the back.

④ The victim immediately stated the fact of damage to the police officer called out after receiving a report from the customer on the restaurant. The reason why the victim stated the fact of damage is natural. In addition, the victim first met the defendant at the time of the crime of this case, and there is no room to request the defendant to agree, etc. first, and there is no motive or reason for the victim to mislead the defendant or make a false statement to the defendant.

⑤ On November 26, 2017, the day of the instant case, at the police meeting, the Defendant met with the victim during the process of putting a new attack, and at this time, the Defendant made and submitted a written statement to the effect that the victim would face with the victim and satis. The Defendant reconvened the statement at the police interrogation conducted on December 1, 2017 at the police interrogation to the effect that the Defendant had no physical contact with the victim before seeing the “CCTV’s images.” The Defendant made a statement to the effect that the CCTV was able to have satise the CCTV’s body contact with the victim.”

(6) At the time of the instant case, K stated in this court that “A defendant did not have any 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 her her her her her her her her her her her her her her her her her her her her her

B. Regarding the assertion of unfair sentencing

The crime of this case is committed by the Defendant’s indecent act by deceiving the victim’s her her m, which was first viewed as being an indecent act, and the liability for such crime is not less severe in light of the details and contents of the crime. The victim appears to have suffered sexual humiliation and mental suffering due to the instant crime. In addition, the Defendant denied the instant crime until the appellate trial, and did not have the victim her marbry.

However, there is no history of criminal punishment against the Defendant, and the type of force of the Defendant’s use or the degree of indecent act against the victim is not significant. Social ties, such as the Defendant’s family members and branch members, are relatively clear. In addition, comprehensively considering all of the sentencing conditions indicated in the instant pleadings, including the Defendant’s age, character and behavior, environment, family relationship, motive and consequence of the crime, motive and consequence of the crime, etc., the lower court’s sentencing against the Defendant is deemed unreasonable.

Therefore, the defendant's assertion of unfair sentencing is justified.

3. Conclusion

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

[Grounds for multi-use Judgment]

Criminal facts

Since the facts charged by this court are the same as the corresponding column of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Summary of Evidence

1. The original judgment of the witness B and the legal statement in this court;

1. The statement of the witness J part of the third protocol of trial in this court;

1. The police statement concerning B;

1. A written statement prepared B;

1. A report on internal investigation and recording;

1. On-site CCTV images, CCTV-quality improvement video CDs;

Application of Statutes

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

Article 298 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (As above, considering the favorable circumstances to the defendant)

1. Order to attend lectures or order to provide community service;

The main sentence of Article 16 (2) and (4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, 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 (the fact that there is no record of criminal punishment by the accused, the fact that only taking lectures in the registration of personal information and the taking lectures in sexual assault treatment can expect the effect of recidivism prevention to a certain extent, and other circumstances such as the Defendant’s age, family environment, social relationship, profits and preventive effects expected from the disclosure or notification order, disadvantages and side effects from disclosure or notification, it is deemed that there is a special circumstance that the disclosure or notification of the Defendant’s

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); the main text of 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)

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to ten years; and

2. Scope of recommended sentences according to the sentencing criteria;

b. The crime of indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 6 months of imprisonment to 2 years

3. Determination of sentence;

The sentence shall be determined as per the order, taking into account various sentencing conditions as examined in the aforementioned determination on the assertion of unfair sentencing.

Registration and submission of personal information

Where 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 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 43

Judges Nam Jae-in

Judge Go Chang-chul

Judges Lee Jin-jin