2015No107 Indecent Act by compulsion

○○ Kim (1968years) (1968) and marina business

Yongsan-gu Seoul Metropolitan Government Lee Tae-dong 20-40

Defendant

Park Sang-hoon (prosecution), and the head of a Si/Gun/Gu shall hold a public trial.

Attorney Kim Su-jin

Jeju District Court Decision 2014Ra1417 Decided February 12, 2015

July 23, 2015

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

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

1. Summary of grounds for appeal;

A. Error of mistake

The defendant, under the victim's explicit or implied consent, only committed a "romath to the victim" in accordance with the ordinary way of the industry with the victim's intention to commit an indecent act, and did not look at the victim's chest or her son, but did not have any intention to her son or her son with the victim's view to the victim.

B. Unreasonable sentencing

Even if a family defendant is guilty, the court below's punishment (ten months of imprisonment and 80 hours of order to attend school) is unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts

1) In full view of the evidence duly adopted and examined by the lower court including the statements of the victim, the victim and her husband ○○, and the following circumstances that can be recognized by such evidence, the Defendant can be found to have committed an indecent act by force against the victim as stated in the facts constituting the crime in the lower judgment.

① First of all, considering the circumstances leading up to the victim’s report, the victim visited Jeju-do, who was living together with her husband, reported to the police on the ground that the victim was suffering from the same damage as the criminal facts stated in the judgment of the court below. The victim was a person who was suffering from the damage, and the victim was a new part of the new part who made a new divorce trip, and even if the victim reported to the police immediately after her husband’s statement, it does not seem that the victim was suffering from false damage. In particular, according to the victim’s statement by her husband le○○○○, according to the victim’s husband’s statement, the victim was a person who was injured and her husband was a person who was flick and her husband was flick within the vehicle that was after her husband’s death and returned to her husband.

② Next, in light of the contents of the victim’s statement, the victim’s statement, first of all, stated that “after the victim’s mast and mast from the back, the Defendant should be placed on the part of the victim.” The victim should be exempted from teitts. The Defendant was discharged from teitts. While the victim reported on the ceiling, the Defendant was discharged from teitts. The Defendant did not her chest with her chest. The Defendant did not her chest on the chest. The Defendant was found to have her chest. The Defendant was her chest back on the chest. The Defendant was her chest, and the Defendant was her head, and her head, her head, her head, her head, her head, and her head, her head, her head, and her head, her head, and her head, her head, her head, and her head, her head, and her head, her head, her head, and her head, her head, her head, and her head, her head.

In addition, the court below made a more concrete statement, and (1) concerning the act of spreading her panty part on the bones of 5 meters, she shall not her panty part, and she shall not her her panty part on the upper part, unless she spanty part on the upper part of her her spanty part is spanty. Women who have made her son's her spanty part, shall not her rash. In relation to the act of spreading her chest, she shall her spanch, and she shall not her her spanty part of her spanty part, and she shall not her her spanty part of her spanty part, and shall her her part of her spanty part in the process of her spanching her chest."

Although the victim’s statement appears to be somewhat different in relation to the ex post facto relationship of the case according to the time when the statement was made, specific descriptions of the core contents of the case are consistent and conviction in the attitude of the victim’s statement. In addition, the victim’s statement contains very specific and clear expressions, and not only appears to have difficulty in making the victim’s statement without direct experience, but also goes beyond the misunderstanding that may be misunderstood depending on the case in the course of mathy. In particular, the part of the statement where the chest was delivered, or the part of the statement that the Defendant was sealed was contacted several times, or the part that the Defendant was sealed is not likely to cause such misunderstanding, regardless of the Defendant’s change in body contact, which may be in the process of mathing. The part that the victim’s statement made that the Defendant’s statement was not made to the husband does not constitute an indecent act in that it did not constitute an indecent act in view of the fact that the Defendant’s own opinion did not have any error.

③ In the court of the court below, the victim’s husband leap○ stated in the court below that “the defendant made a statement to the police that she had a defect in drinking her coffee,” and that she could not take the phone phone by cutting off his son. The defendant made a statement to the court below that she had the intent to commit an indecent act in that she did not have any error, and that she forced the defendant to force the defendant to commit such an act in that she did not act. In addition, her husband leap○ did not have any fact that she had contacted her hands off on the part of her, such as her husband. There was no fact that her son contacted her hand on the part of her husband.” In addition, her statement to the court below that this is different from what is obvious that the defendant's act of drinking her was made.” In addition, her statement to the above part of the defendant's statement that she made a statement to the her credibility.

④ Meanwhile, the statement of ○○○ and ○○○○○ appears to be consistent with the Defendant’s defense. However, even if the statement was made by ○○○○○○, the witness did not have any other experience, such as having her scke sckes or having her sckes. In addition, ○○○ did not take charge of female customers’ chest in the case of a male manager, and even according to the statement by ○○○○○○○○, it appears that “○○ does not have any contact with the Defendant’s sckes.” In addition, the statement by ○○○ does not come to contact with the witness’s face, and it does not appear that the witness’s sckes are insufficient to see if the witness’s statements are inconsistent with the facts charged in the instant case.”

1. The evidence submitted by the defendant and his defense counsel also lacks reasonable doubt that the victim has caused misunderstanding of the facts as stated by the victim, so that the victim's statement may not be rejected due to the lack of evidence to suspect the above victim's statement.

2) Therefore, the judgment of the court below which found the Defendant guilty of the facts charged in this case is correct, and there is no error of mistake of facts as alleged by the Defendant. This part of the defendant's assertion is without merit.

B. Determination on the assertion of unfair sentencing

The fact that the victim knowingly committed an indecent act with the victim's awareness that he was a fluoral father is an element of sentencing the sentencing of the defendant.

However, the court below's punishment is somewhat inappropriate in light of all the records and all of the sentencing conditions of this case, including the defendant's age, character and behavior, family environment, economic situation, means and result of the crime, etc., and the circumstances after the crime, etc., which are shown in the argument, there is no record of criminal punishment for the defendant once, and the previous conviction was not caused by the act of arranging sexual traffic, but not by the direct indecent act. The defendant seems to have been detained for about four months as the case in this case, and the sufficient time to reflect.

3. Conclusion

Therefore, the defendant's appeal is well-grounded, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

【Discretionary Judgment】

Criminal facts and summary of evidence

As stated in the corresponding column of the judgment of the court below, the summary of the facts constituting the crime recognized by this court and the evidence related thereto are cited in accordance with Article 369 of the Criminal Procedure Act. The application of statutes is as it is.

1. Relevant Article of the Criminal Act and the choice of the sentence for the crime: Article 298 of the Criminal Act; 1. Suspension of sentence: Article 62 (1) of the Criminal Act (Consideration of favorable circumstances as set forth in Article 2-2 (b) of the same Act);

Lee Jin-hee (Presiding Judge)

Yellow America

Kim Jong-Jin