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(영문) 대전고등법원 2017.08.04 2017노201
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)등
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The fact that the Defendant, who is a student, had a physical contact with the victims as stated in the facts charged itself is recognized.

However, as the time, place, etc. of physical contact appeared, the defendant did not have the intention to commit the crime.

The defendant mainly had a minor physical contact with the victim during the course of pointing out the situation of the victim's uniforms due to the lack of the victim's appearance during class hours.B. Sentencing unfair sentencing of the lower court (the completion of the sexual assault treatment program for 3 years and 80 hours) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts, the crime of indecent act by force includes not only cases where the other party commits an indecent act after making it difficult to resist by means of assault or intimidation but also cases where the body of the person of the act of assault is deemed to be an indecent act. In this case, the assault is not necessarily required to suppress the other party’s intent.

In a case where an indecent act objectively causes sexual humiliation or aversion to the general public and infringes on the victim’s sexual freedom, it refers to an act contrary to good sexual moral sense. The determination of whether an indecent act constitutes an act ought to be made with careful consideration of the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to such act, circumstances leading to the act, specific form of act, objective situation surrounding the act, and sexual moral sense in that time, etc. (see Supreme Court Decision 2015Do6980, Sept. 10, 2015). 2) As the Defendant recognized the entire facts charged at the lower court’s stage, the judgment on the assertion that the Defendant is on the ground of appeal is not included in the judgment below.

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below based on the relevant legal principles, the defendant had the intention to commit the crime and the facts charged.

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