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(영문) 부산고등법원 2020.02.06 2019노536
아동ㆍ청소년의성보호에관한법률위반(유사성행위)
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. In light of the legal principles, the Defendant did not directly put his/her fingers into the victim’s sexual intercourse. Thus, each of the facts charged in the instant case does not constitute a crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse, aside from the crime of coercion under the Criminal Act.

Nevertheless, the judgment of the court below which recognized the defendant as committing a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse is erroneous in the misapprehension of legal principle

B. The sentence imposed by the lower court on the Defendant (three years of imprisonment, etc.) is too unreasonable.

2. The lower court sentenced the Defendant to a probation order ex officio pursuant to Article 21-3(2) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) while dismissing the prosecutor’s request regarding the case of request for attachment order, and only the Defendant appealed.

The part of the request for attachment order is excluded from the scope of the trial of this court, notwithstanding the provisions of Article 9 (8) of the Electronic Monitoring Act, since there is no benefit of appeal against the request for attachment order, so the scope of trial of this court is limited to the part of

However, the defendant only contests the part of the judgment of the court below based on the grounds of appeal, and does not explicitly state his intention to claim the part of the judgment of the court below regarding probation order, and there is no reason to deem that probation order issued by the judgment of the court below is unreasonable. Thus, the court below should examine only the part concerning the defendant's case.

3. Judgment on the Defendant’s assertion of misapprehension of legal principles

A. The relevant legal doctrine 1) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (the crime of similar sexual intercourse is a crime to protect the freedom of sexual freedom or the freedom of sexual self-determination, as the crime of indecent act by compulsion.

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