(영문) 서울중앙지방법원 2018.4.26. 선고 2017고합1168 판결

Defendant shall be punished by a fine of 25,000,000 won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting KRW 100,000 into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

Reasons

Criminal facts

On August 5, 2017, at around 13:20 on August 5, 2017, the Defendant asked 2 cans of beer and 2 cans in the “D convenience store in the first floor of Seocho-gu Seoul Metropolitan Government, and asked 17 years of age to the victim E (here, 17 years of age) who worked there, and asked 25 years of age to “whether or not 25 years of age?” However, the Defendant asked 1 to “the victim is a high school student” and asked 25 years of age to “whether or not 25 years of age?” In response, the Defendant’s own left hand by the Defendant’s own hand to “the victim is a high school student,” thereby committing an indecent act by force against the juvenile victim by taking the victim’s hand.

Summary of Evidence

1. Partial statement of the defendant;

1. A victim's written statement of E;

1. Application of CCTV Acts and subordinate statutes to crime scene;

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and Article 298 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Registration of personal information with respect to a child exempt from an order to disclose or notify information, taking into account all the circumstances, such as the fact that there is no criminal record for the defendant, the indecent act level is relatively minor, the defendant's registration of personal information, and the completion of a sexual assault treatment program, and there is no evidence to acknowledge that the defendant has a criminal record of a sexual crime, and other benefits expected by the order to disclose or notify the information of this case and the effectiveness of preventing sexual crimes, and adverse effects and expected side effects therefrom, it is determined that there is a special circumstance that the disclosure or notification of the defendant's personal information should not be disclosed or notified, taking into account the following factors:

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The defendant did not intend to commit an indecent act on the date and place of the criminal facts stated in the judgment, and the fact that he/she gets the victim's left hand by taking the juvenile's hand on his/her left hand, but did not intend to commit an indecent act.

2. Relevant legal principles and determination

A. “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, which infringes on the victim’s sexual freedom. Accordingly, the determination should be made carefully by taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim before, circumstances leading to the act, specific manner leading to the act, objective situation surrounding the act, and sexual morality in the age. Moreover, the crime of indecent act by compulsion does not require any subjective motive or purpose to stimulate sexual humiliation as a subjective element necessary for the establishment of the crime of indecent act by compulsion (see Supreme Court Decision 2013Do5856, Sept. 26, 2013). In addition, the crime of indecent act by compulsion includes not only the case where an indecent act is committed after making it difficult to resist by causing violence or intimidation against the other party, but also the case where the act of assault itself is deemed an indecent act against the other party’s will, regardless of the fact that the assault in this case does not necessarily require suppression of the other party’s intent, 201.

B. Comprehensively taking account of the aforementioned evidence and the following circumstances revealed by the evidence duly examined in this court, Defendant’s act constitutes an indecent act, which objectively causes sexual humiliation to the general public and goes against good sexual morality, thereby infringing the victim’s sexual freedom, i.e., infringing on the victim’s sexual freedom, and the Defendant also recognized this point. The Defendant’s and the defense counsel’s assertion is rejected.

① The Defendant recognized the fact that the Defendant was faced with the victim’s hand, etc. after having taken away the victim’s left hand on his/her left hand. The Defendant’s act appears to have caused a sense of sexual shame of the victim at the time when he/she ought to be able to honor one creative sense and form a correct sexual sense of value.

② There is no material suggesting that the victim, who is a minor, had the intent to contact the Defendant’s body, who is a male of the year. At the time of committing the crime, the victim had worked at a convenience store. Considering the location characteristics of the convenience store, which is the space that is the space that is isolated from the outside, the victim seems to have caused sexual humiliation due to the flexic physical contact of an string customer. From the perspective of the average person with sound sexual values, the Defendant’s act contradicts the good sexual moral sense.

③ The subjective constituent elements necessary for the establishment of the crime of indecent act do not require a subjective motive or objective to stimulate, arouse, and satisfy sexual desire. Even if the Defendant had the intent of encouragement, such physical contact constitutes an indecent act that causes sexual humiliation or aversion to the victim and infringes on the victim’s sexual freedom, as it constitutes an act contrary to good sexual morality.

④ In addition, taking account of the victim’s gender, age, relationship with the Defendant, sexually competence of the young female, emotional integrity, the current changed social environment, sexual value standards, and moral sense, etc., it is difficult to view that the relationship between the Defendant and the victim, which has a sound common sense, is naturally permissible by ordinary social norms.

1. Reasons for sentencing: Amount of a fine of KRW 10 million to KRW 30 million;

2. Non-application of the sentencing criteria: The sentencing criteria shall not apply as they choose a fine.

3. Determination of sentence: In full view of the fact that a fine of KRW 25 million appears to have suffered mental impulses due to the instant crime, the Defendant did not make any effort to recover damage to the victim, and the victim wanted to punish the Defendant, a punishment corresponding to the liability should be imposed on the Defendant.

However, the degree of indecent act is not much severe, and the defendant has no record of crime in favor of him, etc. shall be taken into account, respectively, and all factors of sentencing as shown in the pleadings of this case, such as the defendant's age, character and conduct, environment, health condition, motive and circumstance of the crime, and circumstances after the crime, shall be comprehensively taken into account.

jury verdict and sentencing opinion

1. Innocence of guilt with an unanimous verdict of guilt or non-guilty;

2. Sentencing Opinion

2 Jurors: Fines 10 million won

Five jurors: Imprisonment with prison labor for at least one year, and it shall be decided as per Disposition through a participatory trial at the defendant's wishes.