2014No767 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts, etc.)

A

Both parties

Moved (prosecution) and removal from office (public trial)

Law Firm B, Attorneys C, and D

Incheon District Court Decision 2013Gohap665 Decided February 14, 2014

December 19, 2014

The guilty portion of the judgment of the court below shall be reversed.

The defendant shall be innocent.

The prosecutor's appeal against the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

Although the Defendant’s act against the victim E and F constitutes an indecent act beyond ordinary medical treatment, the lower court acquitted the Defendant by misunderstanding facts and misapprehending the legal doctrine on indecent act.

B. Defendant

1) misunderstanding of facts and misapprehension of legal principles

The defendant only provided medical treatment to the victim I and did not commit an indecent act against the victim I.

2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

2. Determination

A. Summary of the facts charged in this case

As a medical specialist in home medicine, the defendant has been working in the H (hereinafter referred to as the "instant hospital") located in the second floor in Nam-gu Incheon Metropolitan City.

1) Crimes against victims E

At around 10:30 on April 10, 2013, the Defendant: (a) visited the hospital to the patient E (including physical temperature measurement) of the victim E (including 14 years of age) who was seated in the clinic due to the symptoms of her hair, and (b) conducted a diagnosis of the drafting, etc., the Defendant committed an indecent act against the victim, who was a child or juvenile, by taking advantage of the treatment. Accordingly, the Defendant committed an indecent act against the victim, who was a child or juvenile, by taking advantage of the treatment.

2) Crimes against the victim I

At around 10:30 on April 10, 2013, the Defendant: (a) at the diagnosis and treatment room No. 10:30, the Defendant: (b) included a physical temperature in the ear of the victim I (the age of 14) who was in a treatment room and was in a treatment room; (c) examined the neck and part of the body; (d) checked the knee of the victim; (e) took the bridge into the knee of the victim; (e) took the victim’s knee and knee of the victim; and (e) continued to put the victim into the treatment room; and (e) continued to put the victim into the victim’s knee in the treatment room; and (e) put the victim’s kne in the victim’s knee and kne; and (e) the Defendant committed an indecent act against the child or juvenile by deceptive scheme.

3) Crimes against victim F

At around April 22, 2013, the Defendant visited the hospital to treat the Plaintiff, and inspected the ear (including physical temperature measurement) of the victim FF (including 14 years old) who was seated in the clinic by taking care of the Plaintiff’s clinic in order to treat the Plaintiff, and repeated the Defendant’s act of cutting down buckbucks and sexual knee to the victim’s knee. In doing so, the Defendant committed an indecent act against the victim, who is a child or juvenile, by taking care into account the treatment.

B. Judgment on the mistake of facts by prosecutors and defendants

1) The judgment of the court below

A) As to the part of the facts charged in the instant case regarding the crime against the victim E and F, the lower court acknowledged the Defendant’s act of punishing the bridge while examining the victims at each time and place indicated in this part of the facts charged, and repeating the victim’s knee and knee. However, the following circumstances acknowledged by the evidence duly adopted and examined, namely, ① the Defendant’s act of taking the body temperature of the above victims using the body temperature, making it available for inspection, and taking the victim’s knee and neck into consideration the victim’s knee and buck, etc. using light or string, it appears that the Defendant’s act falls under the scope of the victims’ general treatment, and ② it appears that the Defendant’s act of exposing the victim’s body and kneegic act was difficult to readily conclude that the Defendant’s act was in contact with the victim’s kneegic act in light of whether it was an indecent act in light of the shape and structure of the Defendant’s body and the length of the patient’s body.

B) However, with respect to the part of the crime against the victim, the court below found the above victim's statement credibility, and it can be acknowledged that the defendant committed an act identical to that stated in the facts charged. ① The defendant's statement appears to be in contact with knee of the above victim without the defendant's sexual origin; ② The above victim's symptoms clearly refer to the change in its symptoms; ② there is considerable doubt as to whether it is necessary to have the above defendant placed the victim on a simple beds and have to have the above victim's knee of the above act like this part of the facts charged; and it seems that it goes beyond the ordinary way of promoting the happiness of women who complained of knee symptoms; the three defendant did not explain the reason for promoting the part of the defendant's statement by this method or did not seek understanding about it; although the above victim's open part was said to be the above part for a long time, the defendant's act of committing an indecent act was found guilty by taking into account the above part of the defendant's panty without any explanation.

2) Determination of the immediate deliberation

A) The establishment of facts constituting an offense in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that such convictions may lead to such convictions, even if the defendant’s assertion or defense is contradictory or unreasonable, and there is suspicion of guilts, such as inciting the defendant’s assertion or defense, it should be determined with the benefit of the defendant (see Supreme Court Decision 2010Do14487, Apr. 28, 201). As for the doctor’s act conducted in the course of the medical examination and treatment for the body of the patient, there may be misconception and criticism by indecent conduct, depending on the patient’s awareness, so it may be deemed that such act may be evaluated as an indecent act conducted under the intention of infringing the patient’s sexual freedom. If there is no reasonable doubt as to the prosecutor’s proof of the facts, it should be determined with the overall benefit of the defendant even if it does not reach the extent of conviction in the process of treatment.

B) In light of the above legal principles, the lower court’s reasoning on the circumstances stated in the part concerning the crime against the victim E and F among the facts charged in the instant case, and based on the evidence duly adopted and examined by the lower court and the lower court, the evidence presented by the prosecutor alone is difficult to deem that the Defendant’s act in the course of treatment against the victims constitutes an indecent act infringing the victims’ sexual self-determination right, or that the Defendant committed the above act under the victim’s criminal intent, without reasonable doubt, and there is no other evidence to prove otherwise. Therefore, the Prosecutor’s argument about the charge against the victim E and F in the lower judgment is without merit, and the Defendant’s argument about the mistake of facts regarding the part concerning the crime against the victim I is with merit.

① The front door of the instant hospital’s medical clinic where the Defendant treated a patient is the entrance of the hospital at which people have frequent access to the hospital at ordinary times. The door of the above medical clinic is the front of the patient waiting room, and the immediate side of the above medical clinic is the place where the patient working at the hospital’s staff, including the reception unit. In addition, in the above medical clinic, the windows leading to the outside passage at a height of 135 cm and the windows are opened, those who are passing through the path can easily look at the situation in the medical clinic. The instant hospital was located at a hospital with a large number of outpatients, namely, 569 out of the victim E and I, and 682 out of the victim F. on April 22, 2013.

As above, it supports the possibility that the defendant's act did not constitute an indecent act in favor of the victim at the time of damage or immediately after the victim's act committed in an open environment medical care room where the victims may immediately be aware of if they were to be resisted or at issue.

② The victim’s statement that the victim’s knee-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kne-kn.

Rather, in light of the fact that the statement of the victims about the medical attitude of the defendant at the time of the medical examination and treatment by using the physical temperature and the transfer of the patient is consistent with the victim's symptoms, the above self-determination of the defendant is likely to be viewed as the defendant's usual medical treatment person due to the shape and structure of the doctor in the medical room and the physical characteristics of the defendant as stated by the court below.

③ With respect to the fact that the conspiracy of the above victim was caused in the course of the police investigation, the victim I stated that the defendant's finger was not aware of what part of the defendant's finger in the police investigation process. However, the victim made a statement to the effect that "it was the same sense that the defendant's finger did not go to any part of the defendant's finger." However, during the prosecutor's investigation process, the victim stated that "the conspiracy was made up of the same sense that "in the course of the prosecutor's investigation, it was made up to the fluence, the half of the fluence was made up," and that "the defendant was made up of half of the fluences and the fluences, which led to the panty," and therefore, the defendant's finger was in depth into panty, and this was not by the panty but directly made a statement to the effect that "the panty of the defendant was directly made."

In light of the fact that the statement on the part of the victim I’s statement on the part where the victim’s conspiracy was disturbed among the victim’s statements, the description of the victim’s conspiracy was revealed during the investigation process up to the court below’s trial process, and that the defendant’s conspiracy was unexpectedly changed in the direction to the conclusion that the victim’s conspiracy was broken down, the victim’s statement on this part is difficult to avoid reasonable doubt in terms of accuracy and credibility.

④ The medical records of the victim I, which appear to have less possibility of after-the-fact manipulation as being immediately prepared at the time of the patient treatment, include the following: the victim's body body, cocoding force, age, a musta, a mustath, a mustath, a fire-fighting disorder (dyspepsia, a fire-fighting disorder), a paradminpa, abdominpa, and a schina, and the name of the diagnosis that the defendant issued to the above victim, stating that the above victim's symptoms at the time were 'astronomical, acute chronitis, seasonal almitis, chronological hemosis, multiple schina, a functional disease, and a functional disease.'

A professional examiner R in the trial of the above symptoms and name of diagnosis can promote the uniforms by using more information as much as possible when the medical examination of a large number of parts is conducted, and therefore, it is absolutely necessary to promote the uniforms. ① The method of promoting uniforms is that the patient's body is recovered by hand, kidy, rain, etc., and the kidy, flusium, etc., or the flusium or flusium flusium, are spreaded or the flusium flusium flusium flusium flusium flusiumsiumsium, and the flusium flusiumsiumsium flusiumsium flusiumsium flusiumsium flusiumsium flusiumsium flusium flusiumsium flusiumsium flusium flusiumsium flusium flusium flusium.

The consistent statement of the above victim about the defendant's act of promoting the happiness against the above victim was first divided by several times, and the victim was asked about whether he had the surrounding part, and the defendant did not have the right. The defendant's act of promoting the uniforms seems to be consistent with the opinion of the professional examiner of the trial court about the promotion of the uniforms of the defendant's act of promoting the uniforms, and the defendant's act of promoting the uniforms again seems to be consistent with the part of the opinion of the expert examiner of the trial court about the promotion of the uniforms, because the defendant's act of promoting the uniforms again seems to be consistent with the above part of the opinion of the expert examiner.

6. 위와 같은 사정들에 비추어 보면, 의과대학을 졸업하고 수련의 과정을 마친 후 바로 이 사건 병원에 봉직의로 재직한 지 얼마 되지 않아 진료 경험이 많지 않던 피고인이 감수성이 예민한 시기의 피해자들과의 신체 접촉을 조심하고 주의하기 보다는 진료행위에 충실하여 오해를 샀을 가능성이 있는바, 피고인의 행위가 진료행위에 필요한 행위였다면 이로 인해 환자가 다소 불쾌감과 수치심을 느꼈다고 하더라도 이를 추행행 위로 평가할 수는 없고, 피고인에게 추행의 범의가 있었다고 단정하기도 어렵다.

3. Conclusion

Therefore, the defendant's appeal against the guilty part of the judgment of the court below is with merit, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the prosecutor's appeal against the acquittal part of the judgment of the court below is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act.

The summary of the facts charged concerning the defendant I's crime committed against the victim I is the same as that of the above 2.A.2. This constitutes a case where there is no proof of a crime for the same reason as that of the above 2.b.2., and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

The senior judge of the presiding judge;

Judges Woo-ok

Judge Lee Jae-soo