2019No98 Indecent Act by compulsion

A

Defendant

Maddens (prosecutions) and new stocks; public trial

Attorney Cho Chang-soo

Cheongju District Court Decision 2018Dadan252 Decided January 10, 2019

February 14, 2020:

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of this decision shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The Defendant did not commit an indecent act against the victim as stated in the facts charged in the instant case. Nevertheless, the lower court found the Defendant guilty on the ground of the victim’s statement without credibility. In so doing, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine

B. Unreasonable sentencing

The punishment sentenced by the court below (the fine of three million won, the order to complete a sexual assault treatment program 40 hours) is too unreasonable.

2. Judgment on misconception of facts and misapprehension of legal principles

A. Summary of the facts charged

On October 6, 2016, from around 01:00 to 02:00 on the same day, the Defendant committed an indecent act with the victim D (Ga name, 21 years old) who is the employee partner of the C Center at which the Defendant works, together with E, drinks the victim who sits on the floor of the guest room at that place, and committed an indecent act with the victim’s her own son’s son’s son.

B. The judgment of the court below

Although the defendant and his defense counsel argued to the same effect in the court below, the court below rejected the defendant and his defense counsel's assertion on the grounds that the victim's statement, a direct evidence consistent with the facts charged, is reliable.

C. Judgment of the court below

1) Relevant legal principles

Article 307(2) of the Criminal Procedure Act provides, “The recognition of facts must be made to the extent that there is no reasonable doubt.” Therefore, in a criminal trial, the conviction ought to be based on evidence of probative value, which leads to a judge to have the conviction that the facts charged are true, to the extent that there is no reasonable doubt. In a case where such conviction does not reach the extent that the evidence submitted by the prosecutor alone does not lead to such conviction, the interest of the defendant should be determined even if there is a doubt of guilt. In a case where the victim’s statement is the sole evidence in determining whether a indecent act by compulsion was committed, in order to determine the defendant on the basis of this, the conviction that the victim’s statement was true to the extent that there is no reasonable doubt in light of the objective circumstance and empirical rule as well as the reasonableness and feasibility of the content of the statement itself, and that there is sufficient credibility to reject the Defendant’s assertion of innocence (see Supreme Court Decision 2016Do21231, Oct. 31, 2017).

2) Determination

이 사건 공소사실을 뒷받침하는 직접증거로는 피해자의 수사기관, 원심 및 당심 법정에서의 진술이 유일하다. 피해자의 진술의 요지는 '이 사건 당일 피고인과 함께 출장을 갔는데 호텔 객실에서 피고인, E와 함께 술을 마셨다. E는 저랑 눈을 마주치고 뭔가에 대해서 설명하고 있었는데 왼쪽 엉덩이를 누가 만지는 느낌이 들어서 놀라 그 쪽을 쳐다봤더니 피고인이 나의 엉덩이를 만지고 있었다. 깜짝 놀라서 바로 그 자리에서 일어나 화장실로 도망쳤다. 화장실에서 마음을 추스르고 한참 뒤에 나왔을 때는 피고인은 이미 잠이 들어있었다.'는 것이다.

However, in light of the following circumstances, the evidence of the lower court and the evidence additionally adopted and examined in the trial (the testimony of the injured party, H, and G party, and the conversation recording between the accused and the injured party as of March 7, 2018), it is difficult to view that the injured party’s statement is credibility to the extent that the injured party’s convictions that the facts charged are true without any reasonable doubt, and the other evidence submitted by the prosecutor alone is insufficient to recognize the facts charged, and there is no other evidence to acknowledge it. Accordingly, the Defendant’s assertion of mistake of facts is with merit.

A) At the time of the instant case, the Defendant and the victim, and the victim, and E were laid down in a rectangular form on the floor between the bed and the cremation room (see, e.g., evidence records). The interval between the parties was difficult to the extent that one person cannot sit between them. While the Defendant and the victim, and the victim, and the E were on the ground where they were seated, there was no other obstacle that obstructs the view of each other. As such, the fact that the Defendant attempted to commit an indecent act against the victim, while the third party was reported immediately as seen earlier, is the case where the Defendant attempted to commit an indecent act against the victim.

나) 그런데 이 사건 현장에 있었던 E는 원심과 수사기관에서 일관되게 '피고인이 피해자의 엉덩이를 만지는 모습이나 피해자가 화들짝 놀라 도망가는 모습을 보지 못했고, 이 사건 전후로 특별히 이상한 점을 느끼지 못했다.'라는 취지로 진술하고 있다. 앞에서 본 이 사건 현장의 상황과 E가 바로 앞에서 피해자를 바라보며 얘기하고 있었던 점에 비추어 볼 때, 피고인이 위와 같이 피해자를 성추행하였는데도 E가 피고인의 행위나 깜짝 놀란 피해자의 반응을 전혀 눈치 채지 못한다는 것은 불가능하진 않다고 하더라도 쉽게 일어날 수 있는 일은 아니라고 할 것이다.

C) When the victim returned to the toilet, the defendant had already been satisfed in the bed, and it is not clear that E is due to what is because E is, however, the victim's arms were satisfed with a little face, and it was thought that E was satisfing about the damages such as E at the time of satisfing. When considering the satisf and sat at the time, the victim stated that this situation was "................ In this situation, the victim did not make any satfling to E, a woman, even though it is possible to satfe about the defendant's abnormal behavior, and eventually, E did not inquire about any satfe about sexual indecent conduct, but it is difficult to understand it.

D) While the victim stated that E was under the influence of alcohol at the time, it is difficult to readily conclude that E was under the influence of her knowledge and her ability to recognize as her, while E was under the influence of her husband and wife at the time of the lower trial.

마) E는 피해자보다는 피고인과 더 오래 전부터 알고 지내던 관계이기는 하나 피해자나 피고인과 매년 한 두 차례 업무상 만나는 것일 뿐이고(소송기록 96쪽), 특히 피고인과 사적으로 친한 사이였다고 볼 만한 자료는 보이지 않는다. E가 피고인의 성추행을 목격하거나 피해자로부터 전해 들었는데도 이를 은폐할 만큼 피고인과 특별한 친분관계에 있었다거나, 피해자에게 일부러 불리하게 진술할 만큼 피해자와의 사이가 나빴다고 보기 어렵다(E는 원심에서 피해자의 성격에 관하여 '밝고 친절하고 사람들과 잘 어울렸으며 모나거나 욕을 먹을 만한 행동이 없었다'라는 취지로 긍정적인 평가를 하였다).

F) The victim had experienced difficulties in finding a contractual position at the F Council related to the C Center, and had an interest in employing the victim as a member of the suspension from office at C Center. On February 2018, G, the head of C Center, had expressed his opinion on employing the victim as a member of the suspension from office of the said Center, but the Defendant took negative answers. The victim, who became aware of such circumstances, she was frightd to sexual harassment against the Defendant, who did not recommend himself as the suspension from office of the said Center. Since then, from March 2, 2018 to March 6, 2018, the victim expressed that he was sexual harassment against the Defendant from the head of C Center and his employees, L, J, and K (the Defendant submitted an application to the investigative agency for an indecent act against the Defendant) on the ground that he was sexual harassment against the Defendant during the period of 10 years, and that he had expressed his opinion on his sexual harassment against the Defendant’s work.

G) The circumstance leading up to the above accusation alone cannot be readily concluded that the victim made a false accusation with the Defendant. However, even if the victim worked together for more than three years, it appears that the Defendant’s attitude indicating negative opinions in his/her temporary employment was an important reason causing the accusation. As such, the possibility that the victim had made an exaggeration or false statement in the process of evaluating and reconsting the past past cases which had been long before the time based on such hostile sentiment cannot be ruled out completely.

3. Conclusion

Since the defendant's appeal of mistake of facts and misapprehension of legal principles are well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and

【Discretionary Judgment】

The summary of the facts charged in the instant case is as indicated in Article 2-1(a) of the Criminal Procedure Act. However, as examined in Article 2-2(c) of the same Act, since the facts charged in the instant case falls under a case where there is no proof of crime, the facts charged in the instant case shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act,

Judge of the presiding judge; and

Judges Kim Gin-tae

Judges Gin Jae-in