(영문) 수원지방법원 2019.10.4. 선고 2019노3313 판결

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

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

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

Reasons

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant tried to photograph the body of the victim at the time and place stated in the facts charged, but did not reach the number of pages.

B. Unreasonable sentencing

The punishment of the court below (2 million won of fine and 40 hours of order to complete a sexual assault treatment program) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. Summary of the facts charged

On July 19, 2018, around 22:15, the Defendant discovered that the victim D (one person, two years of age, and 21 years of age) suffered from the original scam in front of the C community service center located in Ansan-si B, Ansan-si, and recorded the victim's scambama using the cell phone camera function.

As a result, the defendant taken the body of the victim who could cause sexual humiliation or shame by using a camera or other similar mechanism.

B. Judgment of the court below

The court below found the defendant guilty of the facts charged in this case by taking full account of the evidence in its judgment.

C. Judgment of the court below

Comprehensively taking account of the following circumstances acknowledged by the record, the evidence submitted by the prosecutor alone cannot be deemed as proved beyond a reasonable doubt that video information, such as the victim's body, etc., which could actually cause sexual humiliation or shame, has reached the conclusion of the crime by entering the victim's video information into a cell phone storage device. Accordingly, the defendant's assertion has merit.

① The video files taken by the Defendant were not produced as evidence, and the video images taken by the Defendant were not found in digital sirens on the two cell phones used by the Defendant (whether or not they were taken by any one of them). The Defendant, at the time of shooting, taken the back camera of the cell phone as above, and deleted the given video files without confirming the contents of the given video files while escapeing after the discovery of the crime. As such, there is no evidence to prove that the Defendant confirmed the images taken before recognizing the facts charged in the lower court’s trial.

② According to the statement of the victim, "the victim was suffering from the original scam set at the time, and the defendant was aware of the victim's original scam set at the time when the witness was aware of the victim's body part was not taken, or the body part taken by the witness did not reach the degree of sexual humiliation or shameing," "the defendant knew that the victim was near the victim's scam," and "the defendant was subsequent to the victim's 1-2 differences in stairs." However, even if the defendant attempted to take the scam as above, it cannot be ruled out that the victim's body part was not taken, or that the body part taken by the witness did not reach the degree of sexual humiliation or shameing.

3. Conclusion

Since the defendant's appeal is well-grounded, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, but the charges of this case include attempted use of camera, etc., and even if the defendant's attempt to take pictures such as camera, etc. is acknowledged in light of the progress of the trial of this case, it does not pose a substantial disadvantage to the defendant's exercise of his right to defense. Thus, without changing the indictment, the court

another judgment)

Criminal facts

On July 19, 2018, around 22:15, the Defendant discovered that the victim D (one person, two-one years of age) suffered from the primary skin and tried to photograph the victim's body part of the victim's primary skin body, which may cause sexual humiliation or sense of shame by using the cell phone camera function, in front of the C community service center located in Ansan-gu, Mayang-si, Mayang-si, Mayang-si, and tried to take the victim's sexual humiliation or sense of shame against the victim's will. However, the Defendant attempted to turn on the victim's body part of the victim's primary skin body, which may cause sexual humiliation or sense of shame.

Summary of Evidence

1. The defendant's oral statement in court;

1. Statement made by the police in relation to D;

1. Each report on internal investigation (the sequence 3, 4) and photographs attached thereto;

Application of Statutes

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

Articles 15 and 14(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15977, Dec. 18, 2018); Selection of fines

1. Detention in a workhouse;

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

1. Order to complete programs;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The crime of this case is committed in full view of various circumstances, including the fact that the defendant tried to photograph the parts of the body body of the victim against his will and the nature of the crime is not good. The defendant has the record of being suspended from indictment for the same kind of crime; the defendant has agreed with the victim; the defendant's age, character and conduct, environment; the motive and circumstance leading to the crime of this case; and the circumstances after the crime, etc., which are conditions for sentencing as shown in the argument of this case, shall be determined as per the order.

Registration of Personal Information

Where a conviction becomes final and conclusive on the criminal facts of this case against the defendant, 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

Disclosure of Registered Information and Exemption from Notice

In full view of the Defendant’s age, occupation, risk of repeating a crime, motive for, method of committing a crime in this case, seriousness of the crime, the degree and expected side effects of the Defendant’s disadvantage due to an order of disclosure or notification, the preventive effect of a sexual crime subject to registration which may be achieved therefrom, the effect of protecting the victim, etc., the Defendant shall not be ordered to disclose or notify personal information pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso of Article 49(1) and the proviso of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and thus, the Defendant shall not be ordered to

Exemption from Employment Restriction Orders

Considering the Defendant’s age, occupation, content and motive of the crime, method and consequence of the crime, seriousness of the crime, risk of repeating a crime, the degree and expected side effect of the Defendant’s disadvantage due to the employment restriction order, the prevention and effect of the sexual crime that may be achieved therefrom, and the effect of protecting the victim, etc., the Defendant shall not be issued an employment restriction order to the Defendant.

The acquittal portion

The summary of this part of the facts charged against the defendant is as described in 2-A(A) and 2-3(c) of the same Act, and thus, the defendant must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because he/she falls under the case where there is no proof of criminal facts, or the defendant is found guilty of the attempted to use a camera, etc. in relation to the crime, the defendant shall not