(영문) 서울중앙지방법원 2020.11.26.선고 2020노299 판결

Defendant shall be punished by a fine of KRW 3,000,000. Where the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

To order the accused to complete the sexual assault treatment program for 40 hours. An order to pay an amount equivalent to the above fine shall be issued.

Reasons

1. Summary of grounds for appeal;

A. Error of mistake

The lower court determined otherwise even if the Defendant did not have the intention of indecent act by compulsion.

B. Unreasonable sentencing

The punishment of the lower court (the fine of KRW 5,000,000, etc.) is too unreasonable.

2. Determination

A. As to the assertion of mistake of fact

Comprehensively taking account of the reasoning of the lower judgment and the evidence duly examined by the lower court, the fact that the Defendant forced the victim E to commit an indecent act can be sufficiently recognized as recorded in the facts constituting the crime in the lower judgment. This part of the Defendant’s

B. Regarding the assertion of unfair sentencing

It is not good that the victim's indecent act was committed in a way that bucks and rhums in the course of playing together at a club, and it is not good that the victim's indecent act was committed, and it is not possible to receive a letter from the victim.

A favorable normal situation: there is no record of being punished for the same crime.

Considering the above circumstances and the Defendant’s age, character and conduct, environment, the circumstances leading up to the instant crime, and various sentencing conditions as shown in the records and arguments, such as the circumstances after the instant crime, the lower court’s punishment is deemed to be too unreasonable. This part of the Defendant’s assertion is with merit.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the entries in each corresponding column of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 298 of the Criminal Act (Selection of Fine)

1. Invitation of a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Prior to the reasons for the reversal of the sentence, the overall circumstances were considered. The duty to register and submit personal information were to be considered.

Where a conviction against a defendant becomes final and conclusive, the defendant is a person subject to registration of personal information in accordance with Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency under Article 43 of

Disclosure Order or Notice Order and Exemption from Employment Restriction Order

Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse shall not be issued to the accused in full view of the Defendant’s age, occupation, risk of repeating a crime, type, motive, process, seriousness of the crime, disclosure order or notification order, the degree of disadvantage the accused is affected by the order, the effectiveness of preventing sexual crimes subject to registration to be achieved thereby, the protection of the victim, etc.