Defendant

Both parties

Kim Jong-Un (Court of Prosecution) and the fixed number of trials

Attorney Seo Chang-gu

Gwangju District Court Decision 2016 Godan1194 Decided June 17, 2016

The judgment of the court below is reversed.

The sentence against the accused shall be set forth as a fine of six million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

To order the defendant to complete 80 hours of sexual assault treatment program.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Note 1) Defendant

(1) misunderstanding of facts and misapprehension of legal principles

The front corridor part of the apartment site of this case does not correspond to the other person's residence, which is the object of the crime of intrusion upon residence, and even if it falls under the residence, the defendant did not constitute the crime of intrusion upon residence, since he did not know that the victim was changed his password. Since the defendant did not know that he was changed, the defendant did not have the intention of intrusion upon residence, and the act of the defendant does not go against the social rules.

(2) Unreasonable sentencing

The sentence of the lower court (four months of imprisonment and 80 hours of order to complete a sexual assault treatment program) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too unhued and unfair.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

Since the crime of intrusion upon residence is de facto protected as a legal interest to protect the peace of residence, whether a resident or manager has the authority to reside in or manage a building, etc. does not depend on the establishment of a crime. Even if a person is permitted to enter a residential building due to the relation with the resident or manager, etc., if the act of entering a residential place goes against the explicit or presumed intent of the resident or manager, then the crime of intrusion upon residence is established (see Supreme Court Decision 2007Do2595, Aug. 23, 2007). Meanwhile, in the crime of intrusion upon residence, the crime of intrusion upon residence does not merely refer to the house itself, but also includes the above summary such as the fixed number. Therefore, the stairs and corridor used for public use in the apartment house such as multi-household, multi-household, multi-household house, apartment house, etc. are naturally annexed to the exclusive part of each household or household used as a residence, and it is planned to monitor and manage the daily life and there is a need to protect the peace of the residence.

In full view of the following circumstances acknowledged by the court below and the evidence duly admitted and examined by the court below, even if the defendant was between men and women in the victim's residence and did not enter the apartment of this case at the time, the victim's front corridor is a place where the victim's house is commonly used in the apartment, and the defendant's act of avoiding disturbance, such as taking a bath in the front corridor of the victim's house and cutting down the door door of the apartment door from the victim's house, is against the victim's explicit or presumed intention, and thus, it constitutes a crime of intrusion upon residence, and the defendant's intention can also be recognized. Further, the defendant's above act cannot be seen as an act that does not go against the social rules. Therefore, the judgment of the court below is just, and the defendant'

(1) At the time, the Defendant was a spouse who has reported a marriage with the victim, and was in an internal relationship with the victim. The Defendant appears to have been frequently female in the instant apartment, but does not seem to have run the principal life.

② At the time of the instant case, the victim, in the form of the victim, the victim’s father, and the Defendant, etc., required to delete and hedging the victim’s sexually related dynamic images and the body photographs, and subsequently changed the password of the apartment entrance of the instant case after collecting them to the Defendant.

③ Thereafter, around 01:00 on January 10, 2016, the Defendant took a bath on the ground that the password of the apartment entrance of this case is changed and the victim does not open the entrance door, and the Defendant was able to avoid disturbance in the front corridor of the apartment building of this case by no later than 03:30 on the same day, such as cutting off the entrance door of the apartment, etc.

B. As to the assertion of unfair sentencing

The Defendant had already been punished by a fine on two occasions due to the same type of driverless driving, and committed the instant crime during the period of the suspended sentence after being sentenced to two years of the suspended sentence due to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes. This is a disadvantageous condition to the Defendant. On the other hand, the victim Nonindicted 1 and the victim Nonindicted 1 wished to have a prior wife several times by mutual agreement with the victim Nonindicted 1. There are some circumstances in light of the circumstances leading up to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amera, etc.) and the intrusion into residence. The video and photographs taken by the Defendant do not have any fact other than sending them to Nonindicted 2, and there seems to have been no additional damage. Considering the circumstances leading up to the instant crime, the circumstances after the commission of the instant crime, the Defendant’s age, character and conduct, etc., the Defendant’s aforementioned assertion is too unreasonable, and thus, is justified.

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 the appeal by the defendant is again decided as follows ( insofar as the appeal by the defendant is accepted, the appeal by the prosecutor shall not

The summary of facts constituting an offense and evidence recognized by this court shall be as stated in each of the judgment below (Article 369 of the Criminal Procedure Act).

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

Article 14(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the distribution of photographs), Article 319(1) of the Criminal Act (the occupation of intrusion upon residence), Article 152 subparag. 1 of the Road Traffic Act, Article 43(1) of the Road Traffic Act (the occupation of driving without a license), the selection of each fine.

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in 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

If a conviction on the crime of paragraph (1) of the judgment that is a sex offense subject to registration becomes final and conclusive, the defendant is a person subject to registration of personal information under 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 head of the competent police office

In full view of the Defendant’s age, occupation, family environment, social ties, risk of recidivism, benefits expected by an order to disclose or notify the same, disadvantages and side effects therefrom, etc., it is deemed that there are special circumstances where personal information shall not be disclosed or notified. Thus, pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the order to disclose or notify the Defendant pursuant to 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 is not issued.

Judges Lee Jong-soo(Presiding Judge)

1) The Defendant asserts to the effect that it does not constitute distribution or did not have intention on the part of the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Ameras, etc. of Sexual Crimes) through a defense counsel’s opinion on August 12, 2016. However, the above assertion is merely an assertion in the above written document submitted after the expiration of the period for submitting the statement of grounds for appeal, and it does not constitute a legitimate ground for appeal. Therefore, it