Defendant

Defendant and Prosecutor

Shoho Lake

Attorney Lee Jae-han

Seoul Western District Court Decision 2006Gohap292 Decided April 20, 2007

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

One day of detention before the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

피고인의 항소이유 제1점의 요지는, 피고인은 이 사건 당시 피해자 공소외 1의 가슴을 빤 적이 없을 뿐만 아니라 설사 피고인이 피해자의 가슴을 빨았다고 하더라도 이 사건 모텔에 투숙하기까지의 경위와 정황 등에 비추어 볼 때 피고인이 피해자의 행동을 오인하고 애무를 한 것에 불과하므로 피고인에게는 피해자를 추행할 의사가 없었음에도 불구하고, 원심은 그 판시와 같이 피고인이 이 사건 준강제추행 범행을 저질렀다고 사실을 잘못 인정하거나 준강제추행죄의 고의에 관한 법리를 오해함으로써 판결에 영향을 미친 위법이 있다는 것이고, 피고인의 항소이유 제2점의 요지는, 준강간치상죄로 기소된 사건에서 공소장변경 없이 준강제추행죄를 유죄로 인정할 수는 없음에도 불구하고 원심은 공소장변경 없이 준강간치상죄로 기소된 피고인을 준강제추행죄로 처단하였으니, 원심판결에는 공소장변경에 관한 법리를 오해함으로써 판결에 영향을 미친 위법이 있다는 것이며, 피고인의 항소이유 제3점의 요지는, 원심의 형이 무거워 부당하다는 것이다.

The gist of the prosecutor's ground of appeal No. 1 is that the victim suffered from the outer part of the case, the part of the room, the scarcity, and the scarcity, etc., and the victim stated that he was subject to sexual assault at the time when he received treatment immediately following the day when he was damaged by the hospital, and that he was exempted from all the clothes of the victim without consciousness and exceeded the defendant's own clothes; the victim scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scarbly scar, etc.

First, in light of the Defendant’s first ground for appeal, in light of the health team, Nonindicted 1’s legal statement by witness at the trial and the various evidence adopted by the lower court through lawful evidence examination, the Defendant can sufficiently be recognized as committing the instant quasi-indecent act as stated in the lower court’s holding, and even after examining the record, it cannot be found that the lower court erred by misapprehending the legal doctrine on the intent of the crime of quasi-indecent act or by misapprehending

다음으로 피고인의 항소이유 제2점에 관하여 본다. 원심이 적법한 증거조사를 거쳐 채택한 여러 증거들을 종합하여 보면, 피고인은 수사기관에서부터 이 법정에 이르기까지 일관하여 이 사건 준강제추행 범행 자체를 부인해 왔을 뿐만 아니라 피해자의 진술과 같이 피고인이 피해자의 가슴을 빤 행위가 있었다고 하더라도 그와 같은 정도의 행위만으로는 피고인의 준강제추행 범의를 인정할 수 없다고 변소해 온 사실, 원심과 당심은 위와 같은 피고인의 준강제추행 범행에 관해서도 충분히 심리한 사실을 인정할 수 있다. 위 인정사실에다가 원심이 유죄로 인정한 준강제추행죄는 공소가 제기된 준강간치상죄에 포함되어 있을 뿐만 아니라 그 공소사실과 동일성이 인정되는 점을 보태어 보면, 피고인을 공소장변경 절차 없이 준강제추행죄로 처벌하더라도 피고인의 방어권 행사에 실질적 불이익을 초래할 염려가 있다고 볼 수 없으므로 원심판결에 공소장변경에 관한 법리오해의 위법이 있다고 할 수 없다. 피고인의 위 주장도 이유 없다.

Furthermore, I examine the prosecutor's argument of mistake.

The summary of the facts charged in this case is as follows: (a) around 04:30 on June 20, 2006, the Defendant: (b) around 204:30, the Defendant: (c) reported the victim Nonindicted 1, who was under the jurisdiction of Yongsan-gu Seoul, Yongsan-gu 38, and attempted to engage in sexual intercourse with the victim who was under the influence of alcohol, and was unable to resist; (d) he did not go against the victim, and (e) did not go through the wind against the victim, while he was frighten with his finger, and (e) did not go against the victim; and (e) during that process, the victim was suffering from the part of the flusium requiring treatment for about a week.

(1) In order to establish the crime of attempted quasi-rape under the premise of the above facts charged, the lower court acknowledged the Defendant’s intentional act of having sexual intercourse with the victim by taking advantage of the victim’s mental disorder or unknown condition. However, according to the records of the case, the lower court determined that the Defendant was out of the victim’s clothes so that the victim may no longer ask the victim’s clothes, and that the Defendant was out of the clothes, and that the Defendant was out of the victim’s clothes, and that the Defendant was out of the victim’s clothes, and that there was a lack of sufficient evidence to acknowledge that the Defendant was out of the victim’s clothes and handbags for the purpose of treating the victim, and that there was a lack of sufficient evidence to acknowledge that the Defendant was out of the victim’s clothes for the purpose of treating the victim, and that there was a lack of sufficient evidence to acknowledge that the Defendant was out of the victim’s clothes to the extent that the Defendant was out of the victim’s body due to the act of assaulting immediately after the crime.

In light of the records, a thorough examination of various evidences adopted by the court below through legitimate evidence examination, the court below's determination that the facts charged in this case were not guilty is just and it is not recognized that there was an error of law that affected the conclusion of the judgment by misunderstanding facts due to a violation of the rules of evidence as pointed out by the prosecutor in the judgment below. Thus, the prosecutor's allegation

Finally, in full view of all the circumstances on the grounds of unfair sentencing by the Defendant and the prosecutor, the lower court’s sentence is unreasonable.

Therefore, the Defendant’s appeal is reasonable, and the facts charged by quasi-rape and injury resulting from quasi-rape which the lower court found the Defendant guilty on the grounds of the crime are not exempt from reversal in entirety, and the lower judgment is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the lower judgment is further determined as follows through pleading.

The substance of the facts charged by this court and the summary of the evidence are as shown in the corresponding column of the judgment of the court below, so it is cited in accordance with Article 369 of the Criminal Procedure Act, except for the addition of “non-indicted 1’s statement in this Court” to the summary of the evidence.

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

Articles 299 and 298 (Selection of Imprisonment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (In addition, it shall be considered that the victim deposited 30 million won with the beginning of the crime)

The facts charged regarding the injury resulting from quasi-rape of this case are as seen earlier, and the above facts charged constitute a case where there is no evidence of crime as above, but inasmuch as the court found the defendant guilty of quasi-indecent act in the relationship with the crime, the court below did not render a separate verdict of innocence.

It is so decided as per Disposition for the above reasons.

For judges in the first instance and second instance (Presiding Judge)