2017Do10871 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age)

(Indecent Act by Compulsion by Minors)

2017. Beforeward75 (Consolidation) An order to attach an electronic device

Persons whose attachment order is requested;

A person shall be appointed.

Defendant and the respondent for attachment order

Law Firm B

Attorney Q, AR, C, andN

Seoul High Court Decision 2017 90, 2017 Jeonno2 (Joint) Decided June 22, 2017

September 21, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. The establishment of the facts charged against the accused case ought to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

The lower court, on the grounds the same as indicated in its reasoning, acknowledged that the statement made by the victims, who are children, in the course of investigation, was reliable and that it is reasonable to deem that the Defendant and the respondent for the arrival order (hereinafter “Defendant”) forced victims to commit an indecent act by force, and accepted the Defendant’s argument that the first instance court did not accept the Defendant’s argument disputing the facts of the crime in the judgment of the first instance, and rejected the Defendant’s allegation in the grounds for appeal as to the mistake of facts

The allegation in the grounds of appeal is purporting to dispute the fact-finding that led to such judgment by the lower court, and is merely an error of the lower court’s determination on the selection and probative value of evidence, which belong to the free judgment by the lower court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal principles and relevant legal principles and evidence duly admitted, the lower court did not err by exceeding the bounds of the free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles

The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

2. Examining the various circumstances indicated in the records, such as the Defendant’s character, conduct, age, family environment, criminal record, background of the instant crime, means and method, in light of the relevant legal principles as seen in the lower judgment, the lower court did not err by misapprehending the legal doctrine on the requirements for the attachment order of location tracking devices, contrary to what is alleged in the grounds of appeal, in so determining that the Defendant committed two or more sexual crimes and the risk of recidivism is recognized as having been committed and the period of attachment of location tracking devices recognized by the first instance

3. Conclusion

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

Justices Park Sang-ok

Justices Kim Yong-deok

Justices Kim Jae-han

Justices Park Il-san