The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

Sexual assault, 40 hours against the defendant.

Summary of Grounds for Appeal

A. Defendant: The lower court’s imprisonment (one year and six months, etc.) is unreasonable.

B. Prosecutor: The lower court’s sentence is unhued and unreasonable.

2. We examine both of the judgment parties’ assertion of unreasonable sentencing.

The State and society shall bear various duties to protect children and juveniles.

This is also stipulated in the Constitution and various laws, and the court has judged cases against children and juveniles on the premise that children and juveniles should be specially protected.

The reason for protecting children and juveniles is that it is difficult for children and juveniles to exercise their full right to self-determination yet due to social, cultural constraints, etc., and it is difficult for them to defend themselves from sexual invasion or exploitation due to lack of cognitive, psychological, and related resources.

In addition, given that children and juveniles form sexual values and complete sex health, sexual impairment or exploitation of children and juveniles can seriously and continuously affect the pursuit of their mental and physical health and the formation and development of autonomous personality in relation to their performance.

(See Supreme Court en banc Decision 2015Do9436 Decided August 27, 2020). The instant case is a case in which the Defendant had sexual intercourse three times with the victim who is an elementary school student under the age of 11.

It was not revealed by the evidence that the defendant exercised the force of assault, intimidation, etc. in sexual intercourse with the victim.

However, the victim stated to the effect that the defendant was unable to reject the request for sexual intercourse, but the victim did not refuse to make a sexual intercourse.

(Evidence Records No. 198, etc.). There may be various reasons for the victim to not refuse the sexual intercourse which is not originally intended. However, above all, the most important reason is the victim.