Defendant

Defendant and Prosecutor

Cho Jae-chul, Macran (Public Trial)

Attorney Kim Jong-sung

Incheon District Court Decision 2013Meu7588 Decided April 16, 2014

The judgment of the court below is reversed.

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

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to take a 40-hour course for sexual assault treatment.

Of the facts charged in this case, the prosecution against the victim non-indicted 2's indecent act is dismissed.

1. Summary of grounds for appeal;

A. Defendant

The defendant did not commit an indecent act against the victims as stated in the facts charged.

(b) Prosecutors;

The sentence of the lower court (one year of imprisonment, two years of suspended execution, and 56 hours of an order to attend a course) is too unhued and unreasonable.

2. Ex officio determination

A. Summary of the charge of indecent act by compulsion against the victim non-indicted 2 among the facts charged in the instant case

On September 2012, at around 11:15, the Defendant found the victim Nonindicted Party 2’s signature at the “○○○○○○○○○” book located in the Nam-gu Incheon Metropolitan City ( Address omitted)’s (hereinafter “O○○○○○○”) book, and had the victim Nonindicted Party 2 committed indecent act by force.

The Defendant, who was seated in the victim's side, carried his arms on the part of the victim, and her own arms on the part of the victim, followed by the dancing, and led the victim's left am, only once, and led the female to indecent act by force.

B. Determination

Before determining the grounds for appeal by the Defendant and the prosecutor, the above facts charged constitute an offense falling under Article 298 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; hereinafter “former Criminal Act”). Article 2 of the Addenda to the Criminal Act (amended by Act No. 11574, Dec. 18, 2012); and Article 306 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012) and Article 306 of the former Criminal Act.

In addition, the main text of Article 230(1) of the Criminal Procedure Act provides that no complaint may be filed after the lapse of six months from the date on which the offender becomes aware of a crime subject to victim's complaint. [Article 19(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11729, Apr. 5, 2013) provides that the period for filing a complaint against a crime subject to victim's complaint among sexual crimes shall be one year, but the above Act was amended by Act No. 11729, Apr. 5, 2013, Article 19 of the former Act, which stipulates special cases concerning the period for filing a complaint, was deleted, and the foregoing Addenda does not have any separate provisions concerning the scope of application of the above amended provisions. Accordingly, around August 27, 2013, the main sentence of Article 230(1) of the Criminal Procedure Act as to the period for filing a complaint subject to victim's complaint shall apply]

However, according to the records, it is recognized that Nonindicted 2 was aware of the fact that he was the defendant on the day when he was forced to commit indecent act by compulsion. Thus, it is obvious that six months have passed since it was committed on August 27, 2013, the complaint against Nonindicted 2, which was filed on August 27, 2013, is illegal as being filed after the expiration of the period for filing a complaint. Since the charge of indecent act by compulsion against Nonindicted 2 among the facts charged in the instant case, and the charge was instituted based on illegal complaint, it constitutes a case where the procedure for filing a prosecution is invalid in violation of the provisions of the law. Nevertheless, the judgment of the court below on the charge of indecent act

However, notwithstanding the above reasons for ex officio destruction, the defendant's assertion of mistake of facts as to the indecent act by force against the victim non-indicted 1 among the facts charged in this case is still subject to the judgment of this court, and this is examined.

3. Determination of the defendant's assertion of mistake of facts concerning the indecent act by force against the victim non-indicted 1

A. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged by taking account of the evidence in its judgment.

B. Judgment of the court below

The lower court and the lower court acknowledged that “○○○○○○○○○○○○○○” had lawfully adopted and investigated evidence, namely, ① the statements made by the victim at the investigative agency and the lower court on the background leading up to the commission of an indecent act by the Defendant would be consistent specifically, as well as the circumstances leading up to the accusation of the Defendant. As to the circumstances leading up to the accusation of the Defendant, the victim asked the victim’s house image through the Internet and asked him of the number of floors. As such, as “the victim would have destroyed,” the Defendant would not be able to have been able to raise credibility of the Defendant’s complaint,” and it was difficult to recognize that there was an indecent act by the Defendant against the Defendant on the ground that “○○○○○○○○○○○○○ was committed by Nonindicted Party 2, a retired employee, and that there was an indecent act by the Defendant against the Defendant,” and that it would have been difficult for the victim to have easily known that there was an indecent act by the Defendant on the part of the Defendant. However, the lower court stated that there was an indecent act by the Defendant.

4. Conclusion

Therefore, there is no ground to believe that the defendant's mistake of indecent act against the victim non-indicted 1 among the facts charged in this case is erroneous, but the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act, and it is again decided as follows.

1. On February 1, 2013, the Defendant boarded the bus at the front bus stop located in the Jung-gu Incheon Metropolitan City Jung-gu, Jung-gu, Seoul, at the time of the opening of the bus stop, and discovered the victim Nonindicted 1 and was seated in the right side of the female.

The Defendant, within the instant bus week 1), committed indecent acts by force on the victim’s right side by using the victim’s left hand floor and by force on the part of the victim.

2. On February 12, 2013, at around 06:45, the Defendant: (a) at the entrance of a laundry room located in the third floor of “○○○○○○○○,” located in the Southern-gu Incheon Metropolitan City ( Address omitted); (b) asked the said victim to promptly hold a launde; (c) led the victim to indecent act by force; and (d) led the victim to the victim’s right-hand her arm’s length with his/her own hand by force; and (c) led the victim to indecent act by force.

3. Around 06:40 on March 28, 2013, the Defendant: (a) was waiting for the signal to attend the crosswalk in front of a knife elementary school located in the Dong-gu Incheon Metropolitan City, Dong-gu; (b) discovered the above victim waiting for the signal in front of a knife; (c) led the victim to the indecent act by force; and (d) made the victim’s left knife by using the victim’s knife floor one time and by force.

The summary of the evidence against the defendant recognized by this court is the same as the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 298 of the Criminal Code, Selection of Imprisonment

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act: Consideration of the circumstances favorable to the defendant as shown below;

1. Order to attend lectures;

Article 16(2) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012)

Where a conviction becomes final and conclusive due to a sex offense subject to registration of the instant case, the Defendant constitutes 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, is obligated to submit personal information to the competent agency pursuant to

An order for disclosure or notification of registered information needs to be carefully and carefully given that it may have a significant impact on the defendant, and in this case, it is determined that there are special circumstances such as that the registration of personal information alone appears to have an effect to prevent recidivism of the defendant and that the disclosure of personal information should not be made. Thus, it is not an order for disclosure or notification of registered information.

The crime of this case is committed repeatedly by the defendant, who is a workplace partner, and the nature of the crime is bad, and is disadvantageous to the defendant.

However, the defendant has no record of being punished or sentenced to a fine in excess of the same type of crime, and other sentencing conditions specified in the records and arguments, such as the age, sex, environment of the defendant, and circumstances before and after the crime, shall be determined like the order.

Of the facts charged in the instant case, the gist of indecent act by compulsion against the victim non-indicted 2 is the same as the statement in Article 2-A-B. This falls under the case where the procedure of prosecution is null and void in violation of the provisions of law for the same reason as the statement in Article 2-2-b. Thus, this part of the prosecution is dismissed under Article 327 subparagraph 2 of the Criminal Procedure Act, and

Judges Kim Gung-do (Presiding Justice)

(1) The indictment and the lower court’s criminal facts indicated in the indictment as follows: “When the bus enters the road near the Dong-dong, Yeonsu-gu, Incheon, Incheon, it is apparent that it is a clerical error, and thus ex officio correction is made.