[1] The criteria for distinguishing between ordinary concurrence and legal concurrence agreement, and the meaning of "special relationship" as the form of legal concurrence agreement

[2] Whether a crime of violation of Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is related to a special law on a crime of violation of Article 7(5) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (negative)

[3] In a case where the defendant was prosecuted for violating Article 7 (5) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse by force by committing an indecent act against the victim who is a child or juvenile, the case affirming the judgment below holding that even if the above facts charged constitute the elements of a crime of violating Article 10 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against the child or juvenile who is a crime of no will, if the prosecutor prosecutes the defendant as a crime of violating Article 7 of the former Act on the Protection of Children and Juveniles against Sexual Abuse, the case affirming

[1] Commercial concurrence refers to a case where a single act actually satisfies several elements. Legal concurrence refers to a case where a single act appears to meet the elements of several crimes, but actually constitutes only one crime. Whether a single crime is established or several crimes should be determined in terms of the evaluation of the elements of a crime and the legal interests and interests protected by the law. In addition, in a case where a special relation, which is the form of a legal concurrence, is established in addition to all the elements of other elements, the act of meeting the elements of a special law does not meet the requirements of a special law, on the contrary, the act of meeting the requirements of a special law does not meet the requirements of a special law.

[2] In comparison with the elements of a crime of violation of Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the elements of a crime of violation of Article 7(5) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sept. 15, 201; hereinafter “Juvenile Act”), each of the above crimes is different in terms of the subject matter and form of the act, and the awareness of the fact that the subject matter of the crime is a child or juvenile. Since the elements of a crime of violation of Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes constitute a case where the elements of a crime of violation of Article 7(5) and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes are not included in all the elements of a crime of violation of Article 7(5) and (2

[3] In a case where the Defendant was prosecuted for violating Article 7(5) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 15, 2011; hereinafter “Juvenile Act”), by force, due to the indecent act of the victim who is a child or juvenile, the case affirming the judgment below which held that the aforementioned facts charged constitute the crime of violating Article 10(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against the Child and Juvenile against the Child and Juvenile (hereinafter “Sexual Crimes Act”), even if the facts charged constitute the crime of violating Article 10(1) of the former Act on Special Cases Concerning the Sexual Crimes against the Child and Juvenile against Sexual Abuse (amended by Act No. 11287, Feb. 1, 2012).

[1] Article 40 of the Criminal Act / [2] Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 7(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 7(5) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11047, Sep. 15, 201) / [3] Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 7(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 7(5) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11047, Sep. 15, 201); Article 16 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11287, Feb. 1, 2012)

[1] Supreme Court Decision 84Do782 Decided June 26, 1984 (Gong1984, 1382), Supreme Court Decision 93Do498 Decided June 22, 1993 (Gong1993Ha, 2192), Supreme Court Decision 2002Do6033 Decided April 8, 2003 (Gong2003Sang, 1127), Supreme Court Decision 2010Do10451 Decided December 9, 2010

Defendant

Defendant

Attorney Cho Jae-chul et al.

Gwangju High Court Decision 2012No3 decided May 17, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. The term "ordinary concurrence" refers to a case where a single act actually satisfies several elements. The term "legal concurrence" refers to a case where a single act appears to meet the elements of several crimes in appearance, or practically constitutes only one crime. The term "one crime" or " several crimes" shall be determined by considering the evaluation of the elements of a crime and the protection of legal interests and interests (see, e.g., Supreme Court Decisions 84Do782, Jun. 26, 1984; 2002Do6033, Apr. 8, 2003). In addition, the term "special relationship", which is a form of a mutual agreement with the legal concurrence, consists of other elements except the whole elements of the elements of a special law, and the act meeting the elements of a special law, which is contrary to the general law, does not meet the elements of a special law (see, e.g., Supreme Court Decisions 93Do498, Jun. 22, 193; 2003Do403636, Mar. 208, 200

2. The lower court, on the grounds indicated in its reasoning, held that even if the facts charged as a crime under Article 7(5), 7(2)1, and 2 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Act”) constitute the elements of the crime under Article 10(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Children and Juveniles (hereinafter “Sexual Crimes Act”), even though the facts charged as a crime under Article 7(1)1 and 2 of the same Act constitute the crime under Article 10(1) of the same Act, the lower court reversed the judgment of the first instance court that dismissed the prosecution against this part of the facts charged, and remanded the case to the first instance court.

In light of the above legal principles, when comparing the elements of the crime of violation of Article 10(1) of the Sexual Violence Act and the elements of the crime of violation of Article 7(5) and (2) of the ASEAN, each of the above crimes is different from the objects and patterns of the act, and the awareness of the fact that the crime is a child or juvenile, and the elements of the crime of violation of Article 10(1) of the Act on the Special Cases of Sexual Violence do not include all the elements of the crime of violation of Article 7(5) and (2) of the ASEAN. Thus, it cannot be deemed that the former is a special law relationship with the latter.

Therefore, the court below is just in holding that this part of the charges charged for a violation of Article 7 (5) and (2) of the ASEAN Act does not constitute a crime of non-compliance with the intent of the court below, and there is no error in the misapprehension of legal principles as to the crime of non-compliance with the intent of Article 16 of the ASEAN Act, as otherwise alleged in the ground of appeal.

3. Therefore, without examining the remaining grounds of appeal, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)