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(영문) 서울고등법원 2017.05.12 2016노3890
아동ㆍ청소년의성보호에관한법률위반(위계등추행)
Text

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 10,000,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. As stated in the facts of the crime No. 1-A in the judgment of the court below, the defendant did not have had his sexual organ contact the victim C with his sexual organ, as stated in the facts of the crime No. 1-A.

The defendant did not have the intention to commit an indecent act when he committed each crime in the judgment below against the victims.

There is no fact that the defendant has exercised violence against the victims, and there is no fact that he committed an indecent act against the victims by exercising force by taking advantage of the father's status of the guardian interest.

As stated in the facts of the crime, the defendant committed an indecent act by force by force against the victim, such as the victim's chest and tur, etc.

The lower court erred by misapprehending the legal doctrine and thereby adversely affecting the conclusion of the judgment.

B. The sentence sentenced by the lower court (one year and six months of imprisonment, and two years of suspended execution) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, there is no legal rule that the victim C and F’s credibility of each statement made by the same person as the victim C and F’s own statement made by an investigative agency and the legal testimony are different. Thus, even if the facts of crime are acknowledged by believing the same person’s legal testimony and the statement made by another investigative agency, it constitutes a free evaluation of evidence insofar as it is not unlawful (see Supreme Court Decision 88Do740, Jun. 28, 198, etc.). Meanwhile, in a case where the victim’s statement and the legal statement made by an investigative agency conflict with the one made by the investigative agency, more weight should be added to the legal statement than the one made by the investigative agency based on the basic principles of criminal procedure, such as the court-oriented principle and the substantial direct psychological principle, the circumstance that the statement is reversed, its rationality, objective reasonableness, consistency, consistency, degree of credibility of other objective evidence or circumstantial evidence, contrary to the facts charged.

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