2015No25 Indecent Act by compulsion

Sa○ (1969 students), souping employees

Defendant

Park Sang-hoon (criminals) and the chief of a court shall hold a public trial.

Jeju District Court Decision 2014 Godan1077 Decided January 15, 2015

July 2, 2015

The judgment of the court below is reversed.

The sentence of sentence shall be suspended for the defendant.

1. Summary of grounds for appeal;

Since the defendant had committed an indecent act by compulsion by force against the defendant to help the victim, the judgment of the court below is erroneous in misconception of facts.

2. Determination

A. Judgment on the assertion of mistake of facts

The victim stated that the defendant was forced to commit indecent acts by force by force by inserting his son from the body of the victim, putting his son into the body of the victim, making his son away from the body of the victim. As acknowledged by evidence duly admitted and investigated by the court below, the court below stated that ① the victim's death agencies and the court below's statements are consistent, ② the defendant also took action to salute his son immediately after making the victim's salute from the body of the victim (p. 107 of this case's death recordp.107), and the victim appears to have seen that salute the victim's salute at the time of the victim's action. ③ The defendant merely stated that salute his face with the victim prior to the crime of this case was limited to the extent that salute of the victim's face was not closely divided into several parts, but also deducted the proposal about the indecent acts by force of the defendant. In light of the fact that the defendant committed indecent acts by mistake is not accepted.

B. Ex officio determination of sentencing

With respect to the grounds that affect the judgment, the appellate court may decide ex officio, even where the grounds for appeal are not included in the statement of grounds for appeal (Article 364(2) of the Criminal Procedure Act), and where the defendant appealed only on the grounds of mistake of facts, the appellate court may reverse ex officio the judgment of the first instance on the grounds of unfair sentencing, and determine a minor sentence than the sentencing of the first instance on the grounds of unfair sentencing (see Supreme Court Decision 90Do1021

As to the instant case, if the Defendant committed an indecent act against the victim, it is not easy that the Defendant committed an indecent act against the victim. However, the Defendant’s motive is the first offender without any previous conviction, and the Defendant’s motive was mixed to some degree with the awareness about the victim’s happiness, as alleged by the Defendant. In full view of equity with criminal punishment for other crimes similar to the instant crime, including the Defendant’s age, character and behavior, background, means and method of the instant crime, and other various factors, which are the conditions for the argument and sentencing as indicated in the record, such as the circumstances after the instant crime, etc., the punishment (three million won of fine) imposed on the Defendant is unreasonable.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, since the above ground for ex officio reversal exists, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as that of the original judgment, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

§ 298 of the Criminal Code. Selection of fine

1. Suspension of sentence;

Article 59(1) of the Criminal Act ( considered as seen earlier)

Punishment to be suspended: 3 million won by fine, 100,000 won by day by the confinement in a workhouse (Article 70(1) of the Criminal Act);

69(2)

Reasons for sentencing

The above 2. The reasons for sentencing are as stated in Paragraph (b).

Registration and Submission of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a sex offense subject to registration, the defendant is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, but is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act.

However, if it is deemed that a suspension of sentence against a defendant is revoked for two years without the invalidation of the suspension of sentence after the judgment of suspension of sentence becomes final and conclusive, the person subject to registration shall be exempted from the obligation to submit personal information as a person subject to registration (see Supreme Court Decision 2014Do3564, Nov. 13, 2014).

Exemption from an order to disclose or notify personal information

In full view of the Defendant’s age, occupation, risk of recidivism, type of crime, motive, process, consequence, and gravity of the instant crime, the degree of disadvantage and anticipated side effects of the Defendant’s entrance due to the disclosure order or notification order, the preventive effect of the sexual crime subject to registration which may be achieved therefrom, the effect of protecting the victims, etc., the Defendant shall not be ordered to disclose or notify personal information pursuant to the proviso of Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and the special circumstances against which the disclosure order or notification order shall not be issued against the Defendant.

Lee Jin-hee (Presiding Judge)

Yellow America

Kim Jong-Jin