2017No683 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Acts, such as Fraudulent Means)

A person shall be appointed.

- Thai-dong 239 - 1

Defendant and Prosecutor

Maintenance fever ( Prosecution) and Park Jae-young (Trial)

Law Firm International Law Firm

Ulsan District Court Decision 2017Gohap77 Decided November 2, 2017

June 21, 2018

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of innocence is publicly announced.

1. Summary of grounds for appeal;

A. Defendant

Although the Defendant did not commit an indecent act or indecent act against the victims, the lower court convicted all of the charges of this case on the grounds of the statements made by B and K without credibility. In so doing, the lower court erred by misapprehending the legal doctrine.

(b) Prosecutors;

The sentence (a fine of KRW 20 million, etc.) sentenced by the court below against the defendant is too unhued and unfair.

2. Determination on B’s indecent act and attempted indecent act

A. Summary of this part of the facts charged

This part of the facts charged is as stated in Paragraph 1 of the facts charged in the judgment of the court below.

B. The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged with the purport that, in light of the circumstances acknowledged by the lower court’s ruling by comprehensively taking account of the admitted evidence, the credibility of the B’s statement consistent with this part of

C. The judgment of this Court

In light of the spirit of substantial direct examination adopted by the Korean Criminal Procedure Act, an appellate court shall not reverse without permission the first instance judgment on the credibility of a statement made by a witness of the first instance solely on the ground that the first instance judgment is different from the appellate court's judgment. However, in light of the content of the first instance judgment and the evidence duly examined by the first instance court, there are special circumstances to deem that the first instance judgment on the credibility of a statement made by a witness of the first instance was clearly erroneous, or in exceptional cases where it is deemed significantly unreasonable to maintain the first instance judgment on the credibility of a statement made by a witness of the first instance in light of the result of the first instance examination and the evidence duly examined by the first instance court at the time of the closing of arguments in the appellate court, and the result of additional examination by the time of closing of arguments in the appellate court (see, e.g., Supreme Court Decisions 2008Do7302, Dec. 24, 2008; 2011Do1857, Nov. 27, 2014).

In light of the following circumstances acknowledged by the court below and this court comprehensively adopted the evidence, it is difficult to see that the defendant's statement is sufficiently reliable, and the remaining evidence submitted by the prosecutor alone is insufficient to deem that the defendant was proven to the extent that there is no reasonable doubt that he committed an indecent act or attempted to commit an indecent act by force, as shown in the facts charged in this case, and there is no other evidence to acknowledge it otherwise. Therefore, the above argument by the defendant is reasonable. (1) B of the statement of the witness B of the court below is a sexual scam during the course class period. He was "I would like to listen to his scam during the course class period." He was unable to hear his scambling, "I would like to write down his face to the investigation agency, such as "I would like to see that I would like to make it close to the face," and "I would like to have prepared a statement that I would like to present a statement to the student."

(2) On November 10, 2016, B used the Defendant’s indecent act during the course of study on May 6, 2015, “The Defendant stated that he was able to use the part of the broke in the above three times using his hand floor, and that he was able to use his second floor with C on the background of the Defendant’s attempted indecent act.” The Defendant’s statement that he was “I or I or I or I or I or I would like to use I or I or I would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to use I or would like to see that I or she would like to see that I or she would like to use I or she or she would like to see how I or she would have her her own her own life.

B) The disagreement between the statement and the statement (1) B was written by the Defendant during his class hours in his first written statement to the effect that he was sexually piced by him, and that he was unable to hear at the time. However, in the investigation agency and the court of original instance, B reversed that he was not his class hours but was in the first and seventh half of his class.

(2) B) The investigation agency stated that B, after the Defendant was informed of C first and was rejected, that “I would know what I would know,” but in the court of the court below, that the Defendant first told him that he would be aware of, and refused to do so, and that there would be no consistent statement on the specific circumstances at the time when the Defendant made the statement. (3) B, the investigation agency, “I would am the mother of the fact of damage,” and “I would am son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's her son's son's her son's son's 2's son's son's son'.

Rather, D made a statement in the original trial at the court of the lower trial, “I am flick, I am blick, am flick, am flick, or flickly flick,” and “I am flick, I am flick, I am flick, and I am flick, I am flick, and I am flick, I am flick, and I am flick. In light of these statements, I am flick, rather than see that I flicked the fact of damage from B in detail, I am flickly and flick, I am flick with B’s investigative agency and the court of the lower trial’s testimony. Such a statement in D cannot support the credibility of the testimony in the investigation agency and the court of the first instance.

B) The ○○○○, the mother of the part B of the Defendant’s statement made by the witness of the lower court, was aware of the Defendant’s sexual intercourse by 00, and sought an investigation from the head of the secretariat of the alumni conference to hear the damage of the Plaintiff’s sexual intercourse students, and requested the head of the secretariat of the alumni conference to conduct an investigation. During the process of the case, B, his/her dependent, was aware of the same damage inflicted on the Defendant. The written statement was prepared that “The investigation was conducted at the school level with respect to the Defendant’s indecent act against ○○○.” The investigation was conducted on August 2016.

is light.

However, in the court below's decision, ○○ stated the facts of damage from B in the first and second semesters (in the second half of 2015, the second half of 2015). "Woo stated the fact of damage from B" in the court below's decision, "It is not consistent with B's statement as to the reasons for recognition, recognition, etc. of the facts of damage from B.

In addition, on August 2016, ○○ did not notify his or her father at the time when he or she reported the case to the Dong branch of his or her father on an indecent act against his or her father B. Considering that the criminal case against his or her father may be disadvantageous in school life, etc., it is difficult to find reasons to fully understand the fact that ○○○ did not inform his or her father of the damage to his or her father’s father.

In addition, the ○○○’s statement is merely a fact of damage from B, and in light of the inconsistency of the above statements and the circumstances of the following cases, the ○○’s statement cannot support the credibility of the B’s investigation agency and the lower court’s judgment.

C) The part of the statement of the witness E and the part of the statement of the witness C in the court below (1) in the investigative agency and the court of original instance, “E made a false statement. However, in the court of original instance, E did not contain any doubt about the Defendant’s sexual fence, and did not inform B of this fact, it conflicts with B’s statement. Moreover, in the investigation agency and the court of original instance, “E did not have any specific circumstance to deem that E made a false statement.” However, in the court of original instance, “E did not want to make a false statement at the time of attempted indecent act by the Defendant,” and “E did not want to make a false statement from May 2015 to back to back to back to back to back from back to back to back from back to back from back to back from back,” and there was a number of lessons even with the victim B, and there was no specific circumstance to deem that E made a false statement.

However, around August 2016, there is no specific circumstance to deem that C made a false statement. There is no specific circumstance to see that C made a false statement.

3) Facts that the circumstances before and after the instant case were recognized

The following facts are acknowledged in full view of the evidence duly adopted and examined by the court below and this court.

(1) On July 29, 2016, the Defendant filed an application for candidate registration with the school principal recruitment system implemented by the Ulsan High School on the Fransan High School, and at that time, the principal G of the above high school presented the Defendant’s opinion as to whether “it would be better to become a principal after passing a group of assistant principals” (5 pages of the record of the examination of the witness G of the lower court). (2) On the other hand, the father-child ○○, the mother of the lower court, was informed the Defendant of the fact that ○○○ was sexually indecent act by the Defendant from the Defendant on August 2016, 2016, and then reported the fact to the general branch of the above high school. The general branch filed a suspicion of the Defendant’s sexual indecent act with the school juristic person on the 18th day of the same month.

(3) On August 19, 2016, the principal G of the above high school instructed H of the student department H to investigate the Defendant’s indecent act against the Defendant’s Do○○○. (7 pages of the record of the examination of the witness G of the lower court).

(4) Ultimately, after the investigation of a school juristic person, the Defendant was concluded to have not committed a sexual indecent act or a fact against Hu○○○, and the Defendant was appointed as the principal of the Ulsan High School on September 27, 2016.

B) In general, the determination (1) does not seem to have much probability that B made a false statement on the sex offense committed by the Defendant or that ○○○ had his/her father, a minor, had his/her father make a false statement on the sex offense. Also, the instant criminal case itself does not appear to have any particular benefit in school life process, etc. (2) However, in light of the following circumstances acknowledged by comprehensively taking into account the evidence duly adopted and examined by the lower court and this court, it is difficult to readily conclude that B or ○○ did not have any motive to make a false or exaggerated statement on the facts of the instant damage from the standpoint of B or west○.

① At the time of marriage, ○○, a mother of B, had a friendly relationship, such as the principal of Ulsan FF High School G at the time of marriage and the giving and receiving of news in SNS.

② On May 2016, B received an expulsion from school on the 25th of the same month due to a speech or behavior against a teacher during the school travel period, and was subject to a mitigated instruction for the suspension of attendance thereafter. The principal of the Ulsan High School at the time is G.

③ On July 29, 2016, the school foundation announced the selection plan of the principal of the Ulsan FF High School. On the other hand, the former principal G and the former principal of the high school opposed that the Defendant would be the principal of the school. On the other hand, the first notification of the Defendant’s sexual indecent act on the Do○○○ by the Defendant appears to be the mother of B, which is the mother of B, and the Seo ○○ also appears to oppose the Defendant’s appointment of the principal of the school, and the Seo ○○○ was not in a pro rata relationship with the members of the said general branch of the school.

④ On August 9, 2016, the Korean Film Association visited a school juristic person to resist the fact of issuing a middle school by the former principal to the school juristic person. On the contrary, the school juristic person, including I and J, filed a complaint against the members of the Korean Film Association, such as interference with business, around September 2016. The Defendant also filed a complaint against I on charges of defamation, etc., but the non-prosecution was non-prosecution disposition. (Evidence Record 250 pages)

⑤ On October 17, 2016, the KOB demanded the resignation of the Defendant by criticizeing the Defendant and educational foundation about the appointment of the principal of the Ulsan FF High School without passing through a deputy principal (see evidence 13.4). B of the statement submitted by the Defendant.

In the process of the instant case, ① there was a conflict between the existing principal of B/L and the school juristic person in connection with the appointment of the principal of B/L, ② there was no witness at the time of the instant damage, ③ there is no other witness, ③ the damage statement in B is in conflict with E and C, ④ the fact-finding survey on school violence at Ulsan High School, ④ the student who responded to the purport that there was an indecent act by force from March 2015 to October 2016. It appears that there is no possibility that the lower court could not be ruled out that there was an indecent act by the Defendant at the time after the occurrence of the instant case, ⑤ the Defendant was reported to the investigation agency after the Defendant was appointed as the principal of B/L, ③ there is no possibility that the Defendant was an indecent act by force on the part of B/L, which is a minor, and there is no possibility that the Defendant would have made a false statement on the part of B/L, which is an indecent act by force, as well as an objective testimony and reasoning of the lower court.

3. Determination on the indecent act against K

A. Summary of this part of the facts charged

This part of the facts charged is as stated in Paragraph 2 of the facts charged in the judgment of the court below.

B. The judgment of the court below

In light of the circumstances acknowledged by the lower court based on the adopted evidence, the lower court convicted him of this part of the facts charged with the purport that the credibility of K’s statement consistent with this part of the facts charged is recognized.

C. The judgment of this Court

In a criminal trial, the burden of proof for the facts constituting an offense charged is imposed on the prosecutor, and the conviction shall be based on the evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt for guilt against the defendant, the interest of the defendant should be determined (see Supreme Court Decision 2003Do5255, Dec. 26, 2003).

This part of the facts charged is only K’s statement. Considering the above legal principles and the above legal principles in light of the following circumstances acknowledged by the court below and the evidence duly adopted and investigated by the court below, it is difficult to view that the remainder of the evidence submitted by the prosecutor alone proves that the defendant committed an indecent act by force, such as the facts charged in this case, to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge this. Therefore, the above argument of the defendant is reasonable. (1) K tried not to see the defendant’s oral statement of the witness of the court below. (1) K tried to make the oral statement of the witness of the court below, "I would like to ask the defendant during the test." On the other hand, I am dynasium and walk the answer, first, and dynasium and dynasium, but the defendant dynasium and dynasium the defendant dynasium.

(2) On November 10, 2016, K asked "I am son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

2) On January 31, 2017, 2017, K made a written statement that "the time of damage was changed to "the end of the second semester" and submitted it to the Ulsan District Prosecutors' Office (Evidence Record 138 pages). (2) K stated that the defendant committed an indecent act, such as "the time of damage when first investigation is conducted at an investigative agency." On January 31, 2017, K's statement that "the time of damage was changed to "the end of the second semester" (Evidence Record 138 pages). (1) K stated that the defendant committed an indecent act, such as "the location and supervision of the first grade 3 of the first grade 1 and second grade 2013 on which K was employed," "the defendant was not likely to enter the front of the first class of the first class supervision and supervision of the first grade 1 and second class of the first class 1 in the middle class," and "the defendant was not likely to enter the front class and the second class of the first class."

(3) On the remaining five minutes of the test time, K first submitted a test answer to the students, and made a statement to the effect that the Defendant was confisced with D, etc. However, the witness of the lower court stated that there was no possibility that most of the students would first submit the answer sheet to the witness of the lower court (4 pages of a record of the examination of the witness of the lower court).

3) The portion of the statement made by the relevant witnesses is as follows: K’s 2nd half-yearly test in 2013, K’s 2013, which was carried out by the vice supervising the “actual English II” subject, the first instance court stated that the Defendant does not make any such speech or behavior as is identical to the facts constituting the crime in this part.

B) In light of the aforementioned circumstances as seen earlier and the following circumstances acknowledged by the lower court and the evidence duly adopted and investigated by the court below, it is insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge this part of the facts charged. However, there is no evidence to acknowledge this part of the facts charged.

(1) In the process of the instant case, there was a conflict between the existing G principal or the Dong branch and the school juristic person in relation to the appointment of the principal of the Defendant. (2) The parent-child ○○ in B reported the Defendant’s indecent act on the Defendant’s Do○○○, to the Dong branch. Not only the members of the Dong branch but also the Seo ○○ appears to oppose the Defendant’s appointment of the principal. On October 2016, K listened to the damage of B from the mother-child Doz B and ○○ in relation to the Defendant’s appointment of the principal.

Ultimately, after about three years after the occurrence of the instant case, K reported to an investigative agency only after the Defendant was appointed as the principal. K also has a false or exaggerated or different part in making a statement about the Defendant’s indecent act. (3) K did not respond to the purport that there was no witness as to the facts of the injury, and K did not respond to the fact-finding survey on school violence conducted at Ulsan FF High School to the effect that there was an indecent act against the Defendant.

(4) This part of the facts charged is rhym the Defendant’s use of K during the examination and supervision several times, and the Defendant’s indecent act against K during the examination and supervision is no more than 2 to 3 times. In light of the damaged part, the place and circumstances of damage, etc., it cannot be ruled out that the Defendant committed an indecent act against the Defendant at the time of the instant case cannot be said that the Defendant intended to commit an indecent act against the Defendant at the time of the instant case, considering that the Defendant’s act with the victim’s clothes, etc. is objectively difficult to readily conclude that the Defendant’s act constitutes an indecent act that causes sexual humiliation or aversion.

B) The subject of strict certification includes all specific criminal facts as stated in the indictment by the prosecutor. In particular, since the date and time of the crime specified in the indictment is the main object of exercising the defendant’s right to defend, the criminal facts should be recognized through strict certification, and it should not be recognized that there is proof of the criminal facts on the ground that there is a probable probability that the crime was committed in another time even though such proof is insufficient (see Supreme Court Decision 2010Do1487, Apr. 28, 201).

Although the contents of K’s statement of damage appear specifically, in light of the background leading up to the reversal of K’s statement, the aforementioned L’s statement, and the passage of about three years after the occurrence of the case, it is insufficient to conclude that the Defendant used the victim’s statement in the “on-site English II” examination, which is the date and time specified in the facts charged, during the second semester of 2013, the end of the first semester of 2013, which is the date and time specified in the facts charged, and the Defendant used the victim’s statement at a time different from the assertion by K.

rh or tamping is possible. If so, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant committed an indecent act against K on the specified date and time of the crime.

4. Conclusion

Thus, the defendant's appeal is reasonable, and without further determination as to the prosecutor's allegation of unfair sentencing, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act, and the following is again decided through pleading.

[C] The summary of the facts charged in this case is as stated in the above 2-A and 3-A. This constitutes a case where there is no proof of a crime as stated in the above 2-C and 3-C, and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly announced pursuant to Article 58(2) of the Criminal Act.

Judges Kim Jong-chul

Judge Park Sung-sung

Judge Maximum Financial Resources