2012No502 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

[Indecent act by indecent act by indecent act by indecent act by indecent act by minor who is partially recognized;

Part of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Violations (Indecent Acts such as deceptive scheme by minors, etc.) and minors of preliminary crimes

[Indecent Act by Compulsion]

A

Defendant

Park Jin-chul (Court Prosecution) and the highest court (Court trial)

Law Firm H, Attorney I

Gwangju District Court Decision 2012Gohap177 Decided October 25, 2012

February 7, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The defendant's order to complete a sexual assault treatment program for 40 hours. The information on the defendant shall be disclosed for five years. The prosecution against each minor's indecent act by compulsion is dismissed from spring in 2009 and spring in 2010 among the facts charged in this case.

1. Summary of grounds for appeal;

The punishment of the court below against the defendant (the completion of sexual assault treatment programs with imprisonment for two years and six months, 40 hours, and the disclosure and notification of information for five years) is too unreasonable.

2. Determination

Prior to the judgment on the grounds for appeal by the defendant, the prosecutor is in the first instance trial, and the prosecutor maintains the previous facts charged, as described in Article 1-A(b) of the part of the acquittal as stated in the preceding facts charged, and adds them to the selective charges of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Conducts in the 13th and the 13 years old and old) as stated in paragraph 1-B of the part of the acquittal. In addition, as mentioned in the following, an application for amendment to a bill of amendment was made to add the facts of the minor's constructive indecent act as an ancillary charge as stated in the dismissal of prosecution and the facts charged

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of the above ex officio reversal, and it is again decided as follows.

Criminal facts

피고인은 피해자 C(여, 14세)의 의붓 할아버지인바, 2010. 가을에서 겨울 사이 이하 일자 불상경 목포시 D아파트 307동 104호 안방에서 초등학교 6학년인 피해자를 바닥에 눕게 하고 피해자의 다리를 벌려 피고인의 어깨 위에 피해자의 다리를 걸쳐놓은 다음 입과 혀로 피해자의 음부를 핥고, 손가락을 피해자의 음부에 집어넣는 등의 방법으로 13세 미만인 피해자를 추행하였다.

Summary of Evidence

1. Statement by the defendant in court;

1. Each police protocol of statement of C, E, F, and G;

1. Family relation certificate attached to an application for punishment;

1. Application of Acts and subordinate statutes to investigation reports (Evidence records 153 pages);

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

Articles 305 and 298 of the Criminal Act (the occupation of indecent act by minors and the choice of imprisonment)

1. Order to complete programs;

Article 13(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order for disclosure;

The reason for sentencing under Article 38(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse is that the defendant commits an indecent act against the victim under 13 years of age as a shesheshesheshesheshes, and the nature of the crime is very heavy in light of the criminal law and the content, etc., and that the victim seems to have suffered a large mental shock, etc. as a result, shall be the circumstances unfavorable to the defendant. Provided, That there are no circumstances that may be favorable to the sentencing, such as the fact that the defendant recognized the defendant's mistake after the original judgment and against himself/herself, there is no history of punishment for the same kind of crime, and that the victim does not want the punishment against

The above sentencing factors and other sentencing conditions, including the defendant’s age, character and conduct, environment, circumstances before and after the crime, relationship with the victim, etc., shall be determined as ordered.

Part of Innocence (main or selective charges)

1. Summary of the facts charged

A. Main facts charged

The defendant is a person in a relationship with the victim, who must be blick of the victim.

(1) On 2009, the victim, who was the fifth grade of the elementary school, was placed in the Defendant’s rank at the time D Apartment 307, 104, 2009, and for 30 minutes in contact with the Defendant’s sexual flag and the victim’s sexual organ, committed an indecent act by force against the victim who was related to the victim by the following means.

(2) From springing on 2010, at the ward No. 307 104, 307-104, the victim was forced to commit an indecent act by force against the victim who was related to the victim by putting the victim into the same manner as that of the preceding paragraph at the ward No. 307-104, and by taking the victim’s chest into consideration his/her clothes.

(3) 2010. 가을에서 겨울 사이 이하 일자 불상경 위 D아파트 307동 104호 안방에서 초등학교 6학년인 피해자를 바닥에 눕게 하고 피해자의 다리를 벌려 피고인의 어깨 위에 피해자의 다리를 걸쳐놓은 다음 입과 혀로 피해자의 음부를 핥고, 손가락을 피해자의 음부에 집어넣는 등의 방법으로 친족관계에 있는 피해자를 강제로 추행하였다.

(4) When the Defendant, who was anchored at the north port of the Sinpo-si on a date not later than 2010, was at the inside of the ship that was a seafarer, he forced the victim to commit an indecent act by force by inserting the victim’s chest into his clothes and taking charge of the victim’s chest.

B. Selective charges

The Defendant committed an indecent act against the victim by pretending that the victim under the age of 13 did not know about the sex, and by using what he believed and follows the Defendant, committed an indecent act against the victim in a deceptive manner in the same manner as described in the above A. The Defendant committed an indecent act against the victim in a manner as described in the above A.

2. Determination

A. The facts charged above, in itself, did not specify what kind of force or force the Defendant had exercised in a specific manner in carrying out the prosecution of the victim.

B. Furthermore, although the defendant does not specifically dispute the confessions or selective charges since the court below's decision, in light of the fact that the defendant has denied his/her criminal act in the investigative agency, and the victim's statement as seen below, the confessions by the defendant merely recognize the facts of indecent act and do not purport to recognize the use of force or deceptive scheme.

그런데 피해자의 진술은, ① 2009. 일자 불상경 및 2010. 봄에서 여름 사이 각 추행 당시 피고인이 '피고인이 배가 아프다'고 하면서 피해자를 피고인의 배 위로 올려놓고 피고인의 성기와 피해자의 성기가 맞닿은 상태에서 피해자를 위, 아래로 흔드는 방법으로 추행하였는데 피해자는 할아버지가 그렇게 하면 배가 아프지 않은 것으로 여겼거 나(수사기록 10, 11, 13쪽), 피고인이 '얼마큼 컸나'라고 하면서 피해자의 가슴을 만졌는데 피해자는 그러한 행위가 무엇인지 몰라 거절하는 등 반응을 보이지 않았다는 것이고(수사기록 14쪽), ② 또한 2010. 이하 일자 불상경 선박 내실에서의 추행 당시 피고인이 쉬었다 가자며 함께 누운 상태에서 피해자의 가슴을 만지는 등의 행동을 하여 피해자가 빨리 집에 가자고 하자 피고인이 그만 두었다는 것이며(수사기록 20쪽, 22쪽), ③ 2010. 가을에서 겨울 사이 추행 당시 피고인이 '한 번 봐볼께'라고 하면서 피고인의 입과 혀로 피해자의 음부를 핥고 피해자의 음부에 손가락을 살짝 넣었는데, 피해자가 아파서 피하자 피고인이 그만 두었고(수사기록 17쪽, 18쪽), 그 이후부터 피고인의 추행하려 할 때 피해자가 거부반응을 보였다는 것인바(수사기록 27쪽), 피해자의 위와 같은 진술만으로는 피고인이 피해자를 강제로 각 추행하였다거나 '할아버지가 손녀를 예뻐하기 위하여 어르는 것처럼 가장하여' 위계로써 피해자를 각 추행하였다고 보기 어렵고, 달리 합리적 의심 없이 피고인이 강제로 또는 위계로써 피해자를 추행하였다고 인정할 만한 증거가 없다.

C. Therefore, since each of the facts charged above constitutes a case where there is no proof of a crime, a not-guilty verdict should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act; however, as seen below, each of the conjunctive facts charged as to each of the indecent acts in spring in 2009 and on the date and in 2010; hereinafter referred to as the same shall apply) shall be dismissed; and as long as the court found the minor guilty of an indecent act by force, which is the ancillary facts charged as to the indecent act between B and B on 2010, the court shall not render a separate verdict of innocence.

The summary of the conjunctive facts charged as to each indecent act in spring of 2009 and 2010 and 2010. hereinafter the date of dismissal is as follows: the defendant committed each indecent act against the victim under 13 years of age in the same manner as described in Article 1-A-2 (1), (2), and (4) of the aforementioned acquittal part; and it is a crime falling under Article 305 or 298 of each Criminal Code and cannot be prosecuted against the victim's express intent under Article 16 (proviso) and subparagraph 2 of Article 16 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260 of April 15, 2010). According to the records, it is evident that the victim expressed his/her intention not to be punished against the defendant on October 25, 2012, which is prior to the judgment of the court below, and thus, the public prosecution is dismissed pursuant to Article 1327 (1) of the Criminal Procedure Act.

The presiding judge shall be appointed by a judge.

Judges Sickjin

Judges Lee So-hee