[1] The reason why the Act on the Protection of Children and Juveniles against Sexual Abuse intends to protect children and juveniles from sexual impairment or exploitation of others

[2] The case affirming the judgment below which rejected the defendant's assertion disputing the credibility of Gap's entire statement and found guilty on the grounds that Gap's act was not a circumstance to reject the credibility of Gap's statement even if Gap's act was found at the defendant's house after he was rape and was found at the defendant's office on the day after he was rape, since Eul's act did not constitute a circumstance to dismiss the credibility of Gap's statement, since Gap's behavior was not a part of the behavior after the crime, and the victim's behavior was lacking in the support of victim.

[1] Article 2 subparag. 1 and Article 7(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse / [2] Article 7(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 308 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2015Do9436 Decided August 27, 2020 (Gong2020Ha, 1872)

Defendant

Defendant

Attorney Full Il-soo

Daejeon High Court Decision 2019No243, 454, 2019No44 decided May 29, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. A. Article 2 Subparag. 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse defines “children and juveniles” as “persons under the age of 19 (excluding those who face with January 1 of the year in which they reach the age of 19)” and Article 7(1) of the same Act provides that persons who commit rape against children and juveniles by assault or intimidation shall be punished by imprisonment for life or for a limited term of not less than five years.

The reason why the above law particularly intends to protect children and juveniles is because it is difficult for them to exercise their right to self-determination yet due to social, cultural constraints, etc., and it is difficult for them to defend themselves from sexual infringement or exploitation of others due to lack of cognitive, psychological, and related resources. Furthermore, given that children and juveniles are in the process of forming sexual values and completing sexual health, sexual infringement or exploitation of children and juveniles against their sexual abuse or exploitation of children and juveniles may seriously and adversely affect them to pursue their mental and physical health and to form and develop their own personality with respect to their performance (see Supreme Court en banc Decision 2015Do9436, Aug. 27, 2020).

B. Of the facts charged in the instant case, the violation of the Act on the Protection of Children and Juveniles against the Victim’s Non-indicted (Gain, 14 years old) against the victim (Rape) was committed on January 26, 2018 by preventing the victim from resisting against the victim by putting the victim’s shoulder on the part of the defendant’s residence, putting the victim’s shoulder on the part of his/her arms and knee, preventing him/her from going against the victim’s shoulder and knee, etc., and sexual intercourse was committed after preventing the victim from resisting against the victim. The victim’s sexual intercourse was requested at the same place as the next day, and the victim’s sexual intercourse was requested by the victim who caused the death on the preceding day, but the victim refused it, and the victim could not be divided into the victim’s body next to the body set on the part of the victim, and thus, sexual intercourse was committed after preventing the victim from resisting.

C. On January 26, 2018, the Defendant asserted that, under the agreement with the victim on January 26, 2018, the victim was only sexual intercourse once, and that on January 27, 2018, the victim did not have any contact with the victim, and in particular, it is difficult to accept the statement that the victim was raped after the serious assault before and after the previous sexual assault, who was found the victim to find the married defendant into the house where the defendant was only the defendant and was raped again.

D. The lower court determined as follows.

Even though the victim, after being raped by the defendant, found the house of the defendant again on the next day after being raped by the defendant, in light of the general average person’s experience and common sense, it cannot be readily concluded that the victim’s testimony was not reliable immediately. The response of the victim and the response method chosen by the victim after having experienced the crime is limited to only a thousand person, and it cannot be said that the victim ought to keep the perpetrator at the scene of the rape and avoid it. Accordingly, it cannot be said that it is impossible for the victim to take the offender first without leaving the perpetrator separately or avoid the perpetrator, and to find the perpetrator first. In light of the victim’s age difference between the victim and the defendant and the defendant, the victim did not appear to have been raped by the defendant, who was aware that he had been raped by the defendant, to the extent that it was impossible for the victim to hear the victim’s statements to the extent that he would have been raped by the victim, and thus, it cannot be seen that the victim could not have been tried and impossible.

E. Examining the aforementioned legal principles and the evidence duly admitted, the lower court’s determination as above is justifiable in rejecting the Defendant’s assertion disputing the credibility of the entire victim’s statement on the grounds that the victim’s speech and behavior was insufficient after committing the crime and the victim’s communication was insufficient. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed. In this case where a more minor sentence is imposed on the Defendant, the argument that the sentence is too unreasonable is not legitimate grounds for appeal.

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

Justices Noh Tae-tae (Presiding Justice)