2017No2831 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (compreting by deceptive means), children

The violation of the Act on the Protection of Juveniles against Sexual Abuse (Quasi-rape), children and administrations

Violation of the Juvenile Protection Act (Indecent Act by compulsion), children and juveniles

Indecent Act on the Protection of Sexual Abuse (Indecent Act such as Fraudulent Means, etc.), indecent act by indecent act, or child

Violation of the Dong Welfare Act

2017Mno. 138 (Joint Attachment Orders)

A

Defendant and Prosecutor

Yellow Na-young (prosecution) and court name (public trial)

Attorney BH

Seoul Central District Court Decision 2017 Gohap256, 2017 Gogo13 Decided September 12, 2017

(Consolidated) Judgment

March 6, 2018

All appeals filed by the defendant and prosecutor are dismissed.

The judgment of the court below shall delete 29 pages 29, 3, and 29 paragraphs (a) and (b) to "(2)(A)(2) and (b)", and the 32 pages 9 shall correct "five years of imprisonment" to "seven years and six months of imprisonment".

1. Summary of grounds for appeal;

A. Defendant's assertion of mistake of facts

A) As to each sexual intercourse and indecent act

Since the Defendant did not have a position to exercise influence over the time of the victims' entry and the time of the victims, there is no room for the Defendant to use force against the victims. The Defendant did not have sexual intercourse with the victim’s N and did not commit any indecent act or sexual intercourse against the victim’s will, nor did he committed any indecent act or sexual intercourse with the victim’s J, M,O, or P. The Defendant sent the victim’s sexual intercourse with the victim’s sexual intercourse with the victim, and it was revealed that there was no fault on the part of the Defendant even though there was a sexual indecent act by the student at around 2010. The victims filed a complaint with the investigative agency after a long period of time had elapsed since they had been forced to commit indecent act by force against the victim. In light of these circumstances, there was no credibility of the victim’s statement against the above assertion. Nevertheless, the lower court erred by misapprehending the fact that the Defendant found otherwise guilty of each charge under this part of the judgment, which affected the conclusion of the judgment.

B) As to each violation of the Child Welfare Act

The Defendant did not engage in sexual abuse, such as sexual harassment, which causes a sense of sexual shame to the victims who are children, as stated in the facts constituting the crime of the lower judgment. The Defendant merely expressed the victims as a third party and provided counsel. The statement of the victims contrary thereto is not reliable in light of the time of the filing of the complaint. Nevertheless, the lower court erred by misapprehending the facts that found the victims guilty of each of the facts charged under this part of the lower judgment, and thereby adversely affecting the conclusion

B. Prosecution's assertion of mistake

A victim P stated that the Defendant “I am bling. I do not am bal. I do not am bal. I am bal. I do not am bal. I am bal. I do not am bal. I am bal. during the practical class hours.” Considering the Defendant’s sexual speech and behavior, this statement by the Defendant would cause a sense of sexual humiliation to P. The Defendant’s sexual humiliation. Nevertheless, the lower court erred by misapprehending the fact that the Defendant acquitted the Defendant of this part of the facts charged, thereby affecting the conclusion of the judgment.

C. The prosecutor appealed against the lower judgment on a sexual crime case, which is a specific crime as stipulated in Article 2 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders as the part of the appeal for which the request for attachment order is sought, and thus, the prosecutor’s appeal regarding the dismissal of the request for attachment order among the lower judgment pursuant to Article 9(8) of the Electronic Monitoring Act is deemed to have been filed.

D. The defendant and prosecutor's assertion of unreasonable sentencing

The defendant asserts that the punishment of the court below (a prison term of eight years and an order to complete a sexual assault treatment program of 200 hours) is excessive so that the amount of the punishment is unreasonable, and the prosecutor asserts that the amount of the punishment is unreasonable because the amount of the punishment is too unhued.

2. Determination

A. As to the defendant's assertion of mistake of facts

1) Regarding each sexual intercourse and indecent act

According to the evidence duly admitted by the court below, it is justified that various circumstances recognized in detail from 12 pages to 28 of the judgment of the court below are justified, and further, the following circumstances are revealed. Comprehensively considering these circumstances, the evidence submitted by the prosecutor including the victims' legal statement in the court below can be acknowledged without any reasonable doubt as to each of the charges against the defendant. Thus, this part of the defendant's assertion is without merit.

① The contents of the victims’ statement in the lower court’s legal statement are sufficiently detailed and specific to deem that they have experienced, as well as are not inconsistent with the statements made by an investigative agency, and does not seem to have any particular circumstance that may doubt the reasonableness of the statement itself. Moreover, there is no doubt that the victims’ statement is doubtful because it does not coincide with other circumstances that have already been objectively revealed.

② The victims developed a number of elbows to enter a university due to their grammatic talents and talents and to make a part of the literature. They also entered the university, which was a very serious problem with human life. It may be sufficiently affirmed in light of the empirical rule and common sense that the victims, who had directly met the victims and emphasized their grammatic capabilities or influence while providing counseling and guidance about the course of the university to the victims from time to time, may have caused the victims to suffer from their influence or weights. The circumstance that the Defendant did not live in the school for more than 10 years, or that the second time had already occurred for a long time, cannot be said to have any doubt in the previous judgment. The reason is that the victims did not have influence on the determination of whether the victims were the actual life of the Defendant or the last time publication year, as the victims stated in the court of the lower court.

③ The victims were unable to properly recognize the Defendant’s mistake by dividing the Defendant’s power and status into the Defendant’s right and position even after the completion of the student’s enrollment at high school or the adult age, and rather, the victims were sexual awareness that they made mistake on what they did because they were the Defendant’s behavior. Only after the passage of the age of majority, the victims came to know that not only the Defendant but also other students were the Defendant as they were the same as the Defendant. This victim’s statement does not go against the rule of experience or common sense. Accordingly, there is no room for any reasonable deliberation on the Defendant’s complaint only after the victims did not file a complaint at the time of the Defendant’s crime.

In addition, in light of the fact that the defendant was accused of having sexual assault committed against the student prior to the instant case and there is no time to file a complaint, the defendant's assertion that the victim's statement is more doubtful than the victim's statement is false rather than the victim's false statement is a sole reason and there is no reasonable circumstance to suspect the victim's statement.

④ It is difficult to find out circumstances to suspect that the victims are not the Defendant. Although the victims have continuously asserted that there are circumstances to suspect the Defendant, it is difficult to find out what the victims are the specific situations.

However, the Defendant, at the same time in 2015, entered a university, and only 00,000 won was passed by the Defendant. After the Defendant, the Defendant made a bI, 00 victims, and her bb to AB, and the victim M brought about a big dispute after this was seen as the background of the Defendant’s accusation. However, the Defendant’s motive to dismiss the Defendant beyond what is the opportunity for the victim M to commit the Defendant’s crime, and further, it is not good that the victims, including the victim M, including the victim M, et al., become a motive or reason to identify the Defendant.

⑤ In light of the frequent correspondence between the Defendant and AV, a written statement of August 17, 2017 (hereinafter “trial record 477 pages”), e-mail, text messages, etc., the lower court’s witness AV’s legal statement cannot be deemed as materials to doubt the credibility of the victims’ statement.

2) As to each violation of the Child Welfare Act

According to the evidence duly adopted by the court below, all of the circumstances acknowledged in the part of "the violation of the Child Welfare Act" of not more than 21 pages 21 of the judgment of the court below are justified, and the following circumstances can be found additionally. In full view of these circumstances, the defendant can be acknowledged without any reasonable doubt that he committed sexual abuse, such as sexual harassment, etc., which causes a sense of sexual humiliation, to the victims who are children, by doing the act or horse as shown in the crime sight table (excluding No. 3 and No. 19) attached to the judgment of the court below. Thus, the defendant's assertion of mistake of facts is without merit.

① According to the victim’s statement in the court below, although the victim was unable to hear or act the victim’s words such as the statement in the list of crimes attached to the judgment of the court below when he heard or acted, the victim was aware that he was wrong because he was his life, the defendant was aware of what he was his life and that his behavior was wrong only after he became adult. The defendant’s behavior and words were hindered in normal development by having sexual values and judgment ability to the extent that the victims can exercise their right to sexual self-determination properly.

Although the Defendant’s intentional act ought to be determined at the time of committing the crime, the relationship between the victim and the victim before and after committing the crime may also be considered to recognize the existence thereof. Comparing to the timing of the Defendant’s speech or behavior as well as the timing of sexual intercourse or indecent act with the victims, the Defendant’s above sexual harassment or act was found in a series of series corresponding to that of sexual intercourse or indecent act. Accordingly, the Defendant’s speech or act of sexual harassment does not simply mean that between the son and the student who could normally appear in a close relationship with the victims.

B. Regarding the prosecutor's assertion of mistake

According to the evidence duly admitted by the court below, the following facts are justified: "3.0 judgment" among the "not guilty portion of not more than 35 pages of the judgment of the court below," and "3.3.0 judgment at the same time" are acceptable. In light of these circumstances, it is insufficient to recognize that the evidence submitted by the prosecutor alone proves that this part of the facts charged is sufficiently proven to the extent that there is no reasonable doubt. Therefore, the judgment of the court below to this purport is just, and the prosecutor's allegation in this part of the judgment of the court below disputing

C. As to the case of the attachment order claim

According to the evidence duly adopted by the court below, various circumstances recognized in the "2. Judgment" among the judgment below's 37 pages and below's "decision on the request for attachment order" are acceptable. In addition to these circumstances, in addition to the fact that the person subject to the request for attachment order could not be employed as a teacher to commit a crime against the student in the school, the evidence submitted by the prosecutor alone is insufficient to recognize that the part on the claim basis that the defendant is highly likely to recommit a sexual crime is sufficiently proven to the extent that there is no reasonable doubt. Therefore, the judgment of the court below to this purport is just, and the prosecutor's assertion that is deemed a dispute is groundless.

D. As to the assertion of unfair sentencing by the Defendant and the prosecutor did not submit new data on sentencing at the appellate court, there is no change in the conditions of sentencing compared to those of the lower court. In full view of all the grounds for sentencing revealed in the instant trial, it does not seem that the lower court’s punishment is too harsh to the extent that it exceeded the reasonable scope of discretion of the court. Accordingly, each of the grounds for appeal by the Defendant and the prosecutor are without merit.

3. Conclusion

All appeals filed by the defendant and the prosecutor are without merit, and all appeals are dismissed. It is so decided as per Disposition.

4. The decision of the court below to correct the "five years of imprisonment" of 29, 29, 32, 9 of the 29, 32 and 9 of the original judgment to "29, 29, 3, 29, 29, 29, 29, 29, 29 (a), 29, 29, 1, 29) and 2, 32, 9, 32 and 9 of the 29, by its own authority pursuant to Article 25 (1) of the Regulation on Criminal Procedure.

The presiding judge of the Supreme Court;

Judges Jeong Jae-ok

Judges Lee Young-young