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(영문) 서울고등법원 2019.01.22 2018노1991
아동ㆍ청소년의성보호에관한법률위반(강제추행)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of one year and four months.

except that, for two years from the date this judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Error of facts and misapprehension of legal principles (Defendant and defense counsel) 1) The Defendant did not make the same remarks as indicated in this part of the facts charged with the intent to arouse or satisfy his/her sexual desire. 2) The part of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by compulsion) did not commit an indecent act against the victim, with a view to inducing or satisfying his/her own sexual desire.

In addition, even if the statement of the victim is based on the victim's statement, the defendant does not commit any indecent act against the victim, and it can be confirmed that the defendant is aground for the shoulder of the victim or is suffering from the victim's view and the end naturally by dividing the conversation with the victim, and then it can be confirmed that the defendant has no intention to refuse the victim's refusal. Thus, the defendant has no intention to commit an indecent act against the defendant.

B. When each of the crimes of this case was committed, the Defendant was in a state of mental disability as a mental patient.

C. The lower court’s imprisonment (one year and six months of imprisonment, two years of suspended execution, etc.) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles by the defendant and his defense counsel, the court below found the defendant guilty of the facts charged in this case on the ground that the defendant's act constitutes an indecent act, and the defendant's act constitutes an intentional act, and also constitutes the defendant's intent to commit an indecent act. In full view of the circumstances acknowledged by the evidence adopted and examined, the court below acknowledged the facts charged in this case for the purpose of inducing or satisfaction of his sexual desire.

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