In a case where the defendant was prosecuted for violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the case affirming the court below's decision that recognized the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes without any changes in indictments

In a case where the defendant was prosecuted for violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act by compulsion of the disabled) with the summary of "the defendant's act of inducing Gap into his/her own car and forced him/her to talk with his/her own sexual organ," the case affirming the court below's determination that there is no evidence to acknowledge that the defendant committed assault and intimidation to the extent that it would be considerably difficult to resist the resistance of the disabled, and that the use of force against the defendant constitutes "dedecent act" in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act against the Disabled Persons, etc.) and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act against the Disabled Persons, etc.) without any actual disadvantage to the defendant's exercise of his/her right to defense.

Article 6(1), (3), (5), and (6) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012); Article 297 of the former Criminal Act (Amended by Act No. 11574, Dec. 18, 2012); Article 298 of the Criminal Act; Articles 254 and 298 of the Criminal Procedure Act

Defendant

Defendant

Attorney Lee Dong-sik

Busan High Court Decision 2014No109 decided July 3, 2014

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion on the modification of indictment

In a case where a court recognizes a minor criminal facts included in the criminal facts charged, within the scope recognized as identical to the facts charged, and where it deems that there is no concern that the exercise of the defendant's right to defend, in light of the progress of the trial, it may recognize ex officio the facts charged different from those stated in the indictment, even if the indictment has not been modified (see Supreme Court en banc Decision 96Do755 delivered on May 10, 196; Supreme Court Decision 96Do1922 delivered on April 15, 199).

According to the reasoning of the lower judgment, the lower court stated to the effect that, of the facts charged in the instant case, “the Defendant was guilty of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Rape with Disabled Persons) and the Act on Special Cases Concerning the Punishment, etc. of Victims of Sexual Crimes (Rape with Disabled Persons) on the Punishment, etc. of the Victims of Sexual Crimes on May 2012, 201, the victim, who is a first-class disabled person within the Defendant’s car, was unable to exercise his/her right to defense against the victim by deception or by force, constitutes an indecent act by force against the victim by means of a deceptive scheme, etc., even if the victim was aware that his/her ability to distinguish himself/herself from the victim as a disabled person, such as recognition ability and memory ability, and rape once, constitutes a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act by compulsion with the disabled Persons).” The lower court did not clearly establish the type and intimidation of the victim’s desire to commit sexual assault or intimidation on the victim.”

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below and the records of this case, the above measures of the court below are just in accordance with the legal principles as seen earlier, and there is no error of law by misunderstanding the legal principles as to the necessity of modification of indictment

2. The remaining grounds of appeal are not erroneous as to the defendant's act of assaulting, threatening, or not exercising force against the victim at each date, time, and place as stated in the judgment of the court below, and it is not erroneous as to the charge of finding facts with evidence belonging to the exclusive authority of the court below, and even if examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, it is just for the court below to find the defendant guilty of all the charges of this case (excluding the part not guilty in the grounds of appeal) and there is no

3. Conclusion

The appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)