피고인은 아동·청소년인 갑(여, 18세)과 카카오톡 오픈채팅방에서 알게 되어 처음 만난 사이인데, 당일 놀이공원에서 갑과 함께 다니던 중 수회에 걸쳐 갑의 손을 갑자기 잡고, 옆구리를 쿡쿡 찌르며, 볼을 갑자기 만지고, 계속하여 팔을 벌려 껴안으려고 함으로써 갑을 강제로 추행하였다는 아동·청소년의 성보호에 관한 법률 위반(강제추행)의 공소사실로 기소된 후 국민참여재판으로 진행된 사안에서, 검사가 제출한 증거만으로는 피고인의 행위가 ‘추행’에 해당한다고 보기 어렵다는 이유로 무죄를 선고한 사례

피고인은 아동·청소년인 갑(여, 18세)과 카카오톡 오픈채팅방에서 알게 되어 처음 만난 사이인데, 당일 놀이공원에서 갑과 함께 다니던 중 수회에 걸쳐 갑의 손을 갑자기 잡고, 옆구리를 쿡쿡 찌르며, 볼을 갑자기 만지고, 계속하여 팔을 벌려 껴안으려고 함으로써 갑을 강제로 추행하였다는 아동·청소년의 성보호에 관한 법률 위반(강제추행)의 공소사실로 기소된 후 국민참여재판으로 진행된 사안이다.

“Indecent act” means an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether an act constitutes such act is determined with careful consideration of the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to the act, circumstances leading to the act, specific form of act, objective situation, sexual moral sense in the age, etc. In full view of the existing relationship between the defendant and the Gap, circumstances and degree of physical contact at issue, etc., the case holding the defendant not guilty on the ground that the evidence submitted by the prosecutor alone is difficult to prove that the defendant’s act constitutes an “indecent act” beyond reasonable doubt (a verdict of innocence by only seven persons of jurors).

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 298 of the Criminal Act; Article 46(2) and (5) of the Act on Citizen Participation in Criminal Trials; Article 325 of the Criminal Procedure Act

Defendant

Maintenance smoke et al.

Law Firm Ban, Attorneys Noh Jeong-hee et al.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. The facts charged in this case

The defendant was aware of the victim non-indicted (n, 18 years old) who is a child or juvenile and the open marketing room at the Kakao Stockholm, and the first time is the space on the day.

피고인은 2018. 12. 18. 10:00경부터 같은 날 12:00경까지 사이에 용인시 (주소 생략) ‘○○○○’ 테마파크에서 피해자와 함께 다니던 중 수회에 걸쳐 피해자의 손을 갑자기 잡고, 피해자의 옆구리를 갑자기 쿡쿡 찌르며, 피해자의 볼을 갑자기 만지고, 계속하여 피해자를 팔을 벌려 껴안으려고 하였다.

Accordingly, the defendant committed an indecent act by force against the victim who is a child or juvenile.

2. Claims by the defendant and defense counsel;

Although the Defendant made a physical contact with the victim as the facts charged, this does not constitute “indecent act” as provided for in the crime of indecent act by compulsion.

3. The jury verdict;

Not guilty: Seven persons (with a unanimous charge).

4. Determination

A. The burden of proving the facts constituting an offense prosecuted in a criminal trial is to be borne by the public prosecutor, and the conviction shall be based on the evidence of probative value that makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it shall be determined in the interests of the defendant (see, e.g., Supreme Court Decisions 2002Do5662, Dec. 24, 2002; 2005Do767, Apr. 15, 2005). Meanwhile, an indecent act is objectively an act that causes sexual humiliation or aversion to the general public and is contrary to good sexual morality, thereby infringing on the victim's sexual freedom. The determination of whether it constitutes it shall be made after careful consideration of the victim's intent, gender, age, relationship between the offender and the victim prior to such act, circumstances leading to such act, specific act, objective circumstances surrounding it, and sexual morality in the age (see, e.g., Supreme Court Decision 2006Do416.).

B. In light of the existing relationship between the Defendant and the victim based on the evidence adopted and examined by the court, the circumstance and degree of the physical contact in question, etc., it is difficult to deem that the evidence submitted by the prosecutor alone constitutes “indecent act” under the legal doctrine as seen earlier, and there is no other evidence to acknowledge it otherwise.

5. Conclusion

Thus, since the above facts charged constitute a case where there is no proof of a crime, the court shall pronounce innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act and publicly announce the summary of the judgment of innocence against the defendant pursuant to Article 58(2)

It is decided as per Disposition through a participatory trial according to the defendant's wishes for more than one reason.

Judges Yang Sung-ju (Presiding Judge)