(영문) 광주고등법원 2020.2.20. 선고 2018노498 판결

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 100,000 won into one day.

Of the facts charged in the instant case, the charge of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts, such as deceptive means) is acquitted.

The prosecutor's appeal against the acquittal portion of the judgment below is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) The assertion of mistake of facts (in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts, such as deceptive means) listed in attached Table 1, 5, 8, 11)

A) If the Defendant committed 10 parts of the victim B’s buckbucks, such as the No. 1 in the annexed list of crimes, and two times later, there was no other student who was in the classroom did not have been present during the classroom. The victim B’s statement has no credibility.

B) There was no fact that the Defendant had contacted the body of the victim H, as indicated in the [Attachment 6 and 11] List of Crimes Nos. 6 and 11. In relation to the crime set forth in the above Nos. 6, since N’s statement, which is the teacher of the above victim, is inconsistent with the above victim’s statement, the above victim’s statement is not reliable.

C) With respect to the portion found guilty in the attached list of crimes committed by the court below, it is doubtful that there is no witness of the fact that there was another person other than the victims of this case, even though the place where the victims made a statement of indecent act was considerably open, such as classroom or corridor. Nevertheless, the court below found the defendant guilty of this part of the charges based on the statement of the victims without credibility. The judgment of the court below is erroneous in the misapprehension of the legal principles

2) The assertion of unreasonable sentencing

Punishment (fine 20 million won) declared by the court below is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts such as Fraudulent Means, etc.) listed in [Attachment 2-4, 9, 10, 12]

The lower court acquitted the victims of this part of the facts charged on the ground that it is difficult to view that this part of the charges was proved without reasonable doubt. However, the lower court found the victims not guilty on the ground that ① the victims at the time are female students at middle school under the age of 13, who are emotionally sensitive and form sexual identity and values, ② there is a great damage appraisal compared to adults even if they are descendants, grandchildren, arms, and arms, ② the Defendant is not the victims' walleds, and it is difficult to view the victims as personal-friendly death to the extent that they have natural physical contact without rejection, ③ the physical contact was made by the Defendant against the victims’ will, ④ it is difficult to view the victims as simply contact with the victims, ⑤ In light of the fact that it is difficult to see that the Defendant committed an indecent act by an ordinary victim and an indecent act by force, etc., as well as the fact that the Defendant committed an indecent act by force and an indecent act by an ordinary victim, the lower court found the Defendant guilty of this part of the facts charged.

B) Violation of the Child Welfare Act (Child abuse) against victims B

The credibility of the victim B’s statement is high, because it is difficult to make a statement without consistent and actual experience. Comprehensively taking account of the evidence submitted by the prosecutor including the victim B’s statement, it is recognized that the Defendant committed a cruel act that damages the victim B’s body by putting the shoulder part of the victim B one time in the wooden atmosphere, and by harming the victim B’s body. Nevertheless, the lower court acquitted the Defendant of this part of the facts charged on the ground that it is insufficient to support the conviction of whether the Defendant committed an abusive act that damages the victim’s body, such as the Defendant’s shoulder in the victim B’s statement and D’s written confirmation of fact alone, is insufficient. Accordingly, the lower court erred by misapprehending the legal principles as seen above.

2) The assertion of unreasonable sentencing

The sentence of the court below is too unhued and unfair.

2. Judgment on the defendant's assertion of mistake of facts

A. Summary of the facts charged

On July 20, 2017, the Defendant committed an indecent act by force against the victims, who are juveniles, by committing an indecent act by force, against the victim B (one third years of age) who was reporting the film by pressing the body towards the left side during the moral class hours, when the Defendant shown in the first-year class class class class class of the ○○ Middle School located in Gwangju Metropolitan City on July 20, 2017, when he was able to do so on two occasions with the victim’s left side buckbuck part, which was under the Defendant’s protection and supervision, and by committing an indecent act against the juvenile by force between September 20, 2017 and September 1, 2017, such as the list of crimes Nos. 1,5 through 8, and 111.

B. The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the lower court determined that the Defendant recognized the fact that the Defendant committed an act identical to each of the facts charged, and, even if the Defendant did not have any subjective motive or purpose to stimulate sexual desire for the Defendant in doing the above act, it was reasonable to view that the Defendant, at least, knew that his act constitutes an objectively indecent act.

① The victims are consistently stated in the investigative agency and the court of original instance in detail in the situation at the time of physical contact, the statement made by the Defendant, the method of physical contact, the assessment of the pipe, etc. at the time. The contents of the statement include detailed matters that cannot be known unless they experience.

② Although the victims’ statements are somewhat inconsistent until the investigative agency and the court of the court below, considering that they were the students of the first-year course of the middle school at the time of the instant case, this is either due to a lack of expression, etc., or due to the possibility of making only a simple statement without any actual experience during the investigation process or due to the limitation of memory following the passage of time. As long as the victims’ statements are consistently made in the main part, it is difficult to reject the credibility of the victims’ statements.

③ Although the Defendant submitted the materials that seem to be inconsistent with the statements of the victims in the investigative agency and the court of the court below, most of the above materials did not have committed an indecent act by the Defendant merely on the premise of other students in the ○○ Middle School and other students’ specific circumstances, or on the basis of written confirmation, written application, etc., it is difficult to deem the credibility of the above victims’ statements. Meanwhile, during the investigation process, 14 survey was conducted by 15 students in the ○○ Middle School and 15 students in the 15th century, and as a result, the Defendant stated the 15 students in the 15th female students as “the teacher who assaulted the students not for sexual indecent act or educational purpose,” and the Defendant responded that there was an answer that there was a 's stalking’ film that the students like the victim B had finished most of the 15 students in the 19th century.

④ The Defendant and his defense counsel argued that the Defendant sent an obscene site link to the victim E and the victim F with respect to the disciplinary action against school violence. The Defendant and his defense counsel argued that the victim did not ask the victims to make a false report, and that in fact, the Defendant and his defense counsel stated that the victims were sexual indecent acts or emotional assault not for educational purposes during the investigation, or that the victims were aware of the false report? However, it is difficult to view that the victims reported the instant case to the police station around September 25, 2017, and that it was difficult for them to make a false statement to inform the victims of the instant disciplinary action on the ground that they did not meet the victim's oral statement, and that it was difficult for them to view that the victims reported the instant case to the police station as a substitute for the victim's body and that it was difficult for them to report the instant case to the victims by reason of this case.

⑤ Examining the following points, it is reasonable to view that the Defendant, at least at the time of performing the above act, knew that his act constitutes an objectively indecent act.

At the time of the victims of the crime to be established, the victims of the crime were female students at the middle school of 13 years of age, and the Defendant became aware of the victims as teachers. In light of the victims’ age and the relationship between the victims and the defendant at the time of formation of sensitive and sexual identity and values, it does not appear that the victims are naturally and naturally in a relationship with the defendant without any particular refusal.

The Defendant committed an act, such as taking charge of a buckbucking area, face, seeing, entering, and drinking. From the perspective of the general public, such an act is naturally allowed by means of forming trust between male teachers and female students, or by means of spawning and admonitioning, or it is difficult to view that such need exists.

The victims of ‘Ch' stated that the Defendant’s act was ‘unrest,’ and ‘not good,’ and that it was discussed measures to cope with the Defendant’s act before the report of the instant case. In light of the above circumstances, the victims did not accept the Defendant’s act as a general act that male teachers could make to female students at middle school or as a form of decoration and decoration.

C. The judgment of this Court

1) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts, such as Fraudulent Means, etc.), listed in attached Table 1, 5, 7, 8, 11

Examining the reasoning of the lower judgment on this part of the facts charged in light of the lower judgment and the evidence duly admitted and examined by this court, the lower court’s aforementioned determination is justifiable. Therefore, the Defendant’s assertion of mistake

2) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act through Fraudulent Means, etc.) listed in Attached Table 6

A) In a criminal trial, the burden of proving the facts constituting an offense lies in the prosecutor, and the conviction shall be based on the evidence of probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant shall be determined (see, e.g., Supreme Court Decision 2006Do735, Apr. 27, 2006).

B) In light of the following circumstances revealed by the lower court and the evidence duly adopted and examined by this court, it is insufficient to recognize that the Defendant committed this part of the crime against the victim solely based on the victim H’s statement, and there is no other evidence to acknowledge this.

① On September 1, 2017, the victim H stated in the first written statement prepared by the investigative agency that the Defendant was fluent in the school room due to cremation, and the Defendant stated that the Defendant was her face and her face in his/her hands, and was present at the court below to the same effect. However, the victim stated in this court that the Defendant was present at the court as a witness to the effect that “the Defendant was trying to answer questions of the defense counsel about the situation at the time,” and that he/she was trying to answer the question of the situation at the time,” and that “the trial court asked the Defendant to answer the question of the Defendant.” Accordingly, the victim’s oral statement to the effect that “I will not accurately memory the Defendant’s face.” Therefore, it is difficult to determine whether the victim’s face and her face were fluent, and whether the victim was her only her was sworn, but it is difficult to determine whether the victim was her only her.

② N, which had been the son’s life, was present in this court as a witness, and provided guidance to the victim in the school room by duplicating and suplicating the situation at that time. The duplicating of the duplicating and suplicating the duplicating. The Defendant’s talking about cremation after the passage of the duplicating and the duplicating between the suplicating and the duplicating. The Defendant had no physical contact between the Defendant and the duplicating. When the duplicating the duplicating and the duplicing of the duplicating, the duplicating and suplicating of the duplicating of the duplicating. Since the duplicating and the duplicating of the duplicating, the Defendant could not be deemed to have only the duplicating of the duplicating. N appears to have the credibility of the duplic’s statement.

③ In light of the victim H’s statement in this court and the above N’s statement, it is doubtful whether the victim H did not make a statement as to the case related to this part of the facts charged differently from the actual facts at the time when the investigative agency prepared a written statement and at the time when the court below made a statement, it did not make a statement as to the fact that the case occurred in the school office other than the school office.

C) Therefore, even though this part of the facts charged constitute a case where there is no proof of crime, the court below found the defendant guilty, which is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

3. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

1) Summary of the facts charged

On July 28, 2017, the Defendant committed an indecent act by force against the victims F (the 13-year old age), who was walking in the corridor of the second floor of the ○○ middle school, by committing an indecent act against the victims, who are juveniles, by force during the period from September 28, 2017, as stated in the table of crimes Nos. 2 to 4, 9, 10, and 12, by force, by a student under the protection and supervision of the Defendant, as well as by a student under the protection and supervision of the Defendant from the right shoulder of the victim.

2) The judgment of the court below

According to the evidence submitted, the court below determined that the defendant's act of sexual humiliation or sexual humiliation against the victim's physical sense is difficult to readily conclude that the defendant's physical behavior, including the victim's arms, was against the victim's sexual humiliation or sexual humiliation, or that the defendant's act of sexual humiliation or sexual humiliation against the victim's physical sense cannot be objectively determined by taking into account the following facts: (i) it is hard to conclude that the defendant was sexual humiliation or sexual humiliation against the victim's bodily harm, as alleged by the defendant; (ii) it is difficult to conclude that the defendant's act of sexual humiliation or sexual humiliation against the victim's bodily harm, such as the victim's bodily harm, and (iii) it is difficult to objectively conclude that the defendant's act of sexual humiliation or sexual humiliation against the victim's bodily harm, such as the victim's bodily harm, as the victim's bodily harm or sexual humiliation, was committed by the victim's leader at the time of his school life, or that the victim's act of sexual humiliation or sexual humiliation against the victim's physical harm.

3) The judgment of this Court

In light of the circumstances revealed by the court below and the evidence duly adopted and examined by the court below, it is difficult to view that the defendant committed an indecent act against the victims as stated in each part of the facts charged, and there is no other evidence to acknowledge this, and such fact-finding and decision by the court below is just, and there is no error of law by mistake of facts or misunderstanding of legal principles as alleged by the prosecutor. Accordingly, the prosecutor's allegation of facts and misapprehension of legal principles is

① At the time, the Defendant, as the only male teacher in the first year, was in charge of guiding students’ life, and appears to have frequently taught students’ uniforms, living attitudes, etc. in his/her lifelong corridor.

② The victim H appeared as a witness in this court and made a statement to the following effect:

○ 별지 범죄일람표 3 기재 범행선생님이 원래 친해지려고 평소에도 악수를 잘 하시고, 당일에도 웃으면서 오기에 악수를했는데 손을 좀 오래 잡고 있었다. 그 부분은 별로 기분이 엄청 나쁘다거나 그런 건 아니었다. 손을 만지면서 수업 관련된 이야기를 하고 웃으면서 훈계를 하는 것 같았다. 저는 악수한 번하고 끝날 줄 알았는데 조금 길어지니까 불편하고 좋지는 않았다. 당시 복도에는 지나다니는 학생들이 있었다.○ 별지 범죄일람표 12 기재 범행그냥 무슨 말을 하시려고 오면서 어깨를 처음에 딱 잡고 약간 내려갔다. 살짝 쓰다듬었다.어깨와 팔 부위를 왔다 갔다 했다. 기분이 많이 나빴다. 무슨 말을 하였는지는 기억이 나질않는다. 다른 남자선생님들은 그런 것도 안하고, 여자선생님도 터치를 안 하는데, 다른 반남자 선생님이 오셔서 어깨를 만지시니까 당황스럽고 나빴다. 피고인과 친한 것도 아니었고, 그냥 웃으면서 말하는 정도의 사이였다.

According to the statement of the victim H, the Defendant gets her hand or shoulder and talked with him/her on the corridor where another student passes. In light of the Defendant’s role and the situation at the time, the Defendant’s above victim’s attitude as a result of the Defendant’s leging of the victim in the corridor is highly likely to have inflicted a warning on the degree of living of the said victim. However, it is difficult to readily conclude that the act of a life guidance teacher gets sexual humiliation or aversion to the general public objectively and goes against good sexual morality.

(3) The place where the defendant has contacted the victims' body is a corridor or classroom open to the public, and even if based on the statement of the victims, other students appears to have been in such place.

B. Violation of the Child Welfare Act (or abuse)

1) Summary of the facts charged

On July 24, 2017, the Defendant committed an act of abuse that causes damage to the body of the victim, who is a child, on the ground that the victim B (the name, the son, the 13-year old age) in the class of the first grade ○○ Middle School and the 1st grade O of the 2017 a.m. said, the Defendant stated that the victim B (the son, the son, and the 13-year old age) was "at the night," and that he was able to say that he was "at the seat of the victim one time, and that he was at the seat of the son, and that he was at the seat of the victim, only once".

2) The judgment of the court below

In light of the following circumstances acknowledged in its holding, i.e., K’s statement and the confirmation letter of facts prepared by K, the lower court determined that it is difficult to view that the Defendant abused the victim’s body without any reasonable doubt because the evidence submitted by the prosecutor alone alone is difficult to view that the victim B suffered from the Defendant, and that the victim B thought that he was playing his excessive behavior at the time of the victim B, or that the Defendant was able to have contacted the victim’s body inevitably, and that the possibility that the Defendant was able to capture the victim’s body cannot be ruled out; ② the victim B testified that the other victims of this case were her face, but the other victims as stated in the lower court’s court did not make such a statement, it is difficult to deem that the Defendant abused the victim’s body without any reasonable doubt because it is difficult to deem the victim B’s shoulder part at once.

3) The judgment of this Court

Examining the reasoning of the lower judgment in light of the evidence duly admitted and examined by the lower court, the lower court’s determination is justifiable. Therefore, the Prosecutor’s allegation of mistake and misapprehension of

4. Conclusion

Of the guilty portion of the judgment of the court below, the defendant's assertion of mistake as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Fraudulent Means, etc.) stated in the attached list 6 of the judgment of the court below has merit, and the court below judged that this court accepted the defendant's appeal and rendered a single punishment as it judged that the part which judged not guilty and the remaining conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the conviction portion of the judgment below should be reversed. Accordingly, without examining the prosecutor's and the defendant's assertion of unfair sentencing, the guilty portion of the judgment of the court below shall be reversed pursuant to Article 364 (6) of

【Grounds for a new judgment on the reversed part】

Criminal facts and summary of evidence

Except as described in No. 1, 5, 8, and 11 below below the second sentence of the judgment of the court below, a total of six times is equal to the judgment of the court below, with a total of five times as described in No. 1, 5, 7, 8, and 11 in order.

Application of Statutes

1. Article applicable to criminal facts;

Article 7(5) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act (a indecent act against children and juveniles by force), Article 71(1)2 and Article 17 subparag. 3 (a) of the former Child Welfare Act (Amended by Act No. 14925, Oct. 24, 2017); Article 257(1) of the Criminal Act (a)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act / Articles 40 and 50 (Child Welfare Violation (Child Abuse) Crimes against Victims C and Punishment for Serious Bodily Injury Crimes)

1. Selection of punishment;

Selection of each fine

1. Aggravation for concurrent crimes;

The punishment prescribed in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the punishment shall be aggravated for concurrent crimes of violation of the Child Welfare Act (Child Abuse) against D with the largest victim D, but the lowest sentence shall be determined by the punishment determined for violation of the Act on the Protection of Children and Juveniles from Sexual Abuse (dedecent Act, etc.).

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Orders to disclose and notify information and exemption from employment restrictions orders;

In full view of all the circumstances such as the circumstances leading up to the crime of this case, the circumstances after the crime of this case, the circumstances after the crime of this case, the benefits and preventive effects expected by the disclosure and notification order and the employment restriction order, disadvantages and side effects resulting therefrom, etc., the defendant's personal information shall not be disclosed or notified, and the special circumstances that the defendant's personal information shall not be subject to the disclosure or notification order and the employment restriction order shall not be issued.

1. Invitation of a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Reasons for sentencing

Each of the instant crimes is an indecent act by force by the Defendant, who is a middle school teacher, committed an indecent act against female students under his/her direction, and committed the act against the students by using the tree atmosphere, and thus, the nature of the crime is not weak. In addition, the victim C and D, who were physically abused by the Defendant, wished to punish the Defendant in the court below. Such circumstances are disadvantageous to the Defendant.

On the other hand, the type of force and the degree of indecent act committed by the defendant against the victims is relatively limited. The victims except the victims E, among the indecent victims, reported the wrong acts in investigation agencies and the court below, but they stated that they are not subject to criminal punishment until criminal punishment.

The Defendant is a primary offender who has no criminal history. The Defendant started school life at a relatively late age and led students to lead students in good faith for ten years.

Such circumstances are favorable to the defendant.

In full view of the above circumstances and other factors of sentencing as shown in the records and arguments of this case, including the defendant's age, character and conduct, environment, method and circumstances after the crime, etc., the punishment as ordered shall be determined.

Registration of Personal Information

Where a conviction becomes final and conclusive on the crime committed in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, as stated in No. 1, 5, 7, 8, and 11 No. 11, 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 thus, the Defendant is obligated to submit personal information to the competent agency pursuant to Article

In light of the statutory punishment of each of the above crimes subject to registration and the remaining crimes not subject to registration, the nature of the crimes, and other circumstances shown in the argument in this case, it is not recognized that the period of registration is determined in accordance with Article 45 (1) 4 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Parts of innocence

1. The summary of the facts charged (the point of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act, such as Fraudulent Means) stated in attached Table 6);

The defendant is a teacher in the subjects of ○○ Middle School in Gwangju and a teacher in the first grade ○○○ School and a teacher in the first grade ○○ School in Gwangju, and the victim H (V, 13) is a student in the first grade of the above school.

On September 2017, the Defendant committed an indecent act by force on the part of a student under the protection and supervision of the Defendant, who was educated by a teacher in a school room, on the ground that he had been trained by cremation in the above school room.

2. Determination

This part of the facts charged is the case where there is no evidence of a crime as stated in the above '2. c. 2. 2., the judgment of the defendant on the mistake of facts', and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. The summary of the judgment of innocence is not publicly announced pursuant to the proviso of Article 58(2

Judges

Justices Kim Tae-ho

Judges Yang Young-hee

Judges Hong Man-man

Note tin

1) Although there is room to regard the act of taking grandchildren as an indecent act depending on the case, there is room to regard it as an indecent act. However, as long as it can be seen that male teachers in daily life make female students with bad faith, the circumstances should be recognized to view it as an indecent act.