2013No488 obscenity

A person shall be appointed.

Both parties

Kim Byung-J Co., Ltd. (Lawsuits) and duplicating (Trial)

Attorney Park Gyeong-hwan

Ulsan District Court Decision 2012No3419 Decided May 30, 2013

September 27, 2013

The judgment of the court below is reversed.

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

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The probation order shall be issued to the accused and community service for 80 hours.

Of the facts charged in the instant case, the charge of public performance and obscenity on April 17, 2012 is acquitted.

1. Summary of the grounds for appeal;

(a) A prosecutor;

The sentence of the lower court (six months of imprisonment and two years of probation, probation, and community service order 120 hours) is too unhued and unreasonable.

B. Defendant

1) misunderstanding of facts

The Defendant did not have publicly conducted obscene acts at the time and place indicated in the facts charged. The testimony of a witness who was a witness, who was the Defendant identified as an offender, was lower than the credibility of the testimony when the witness did not properly observe the procedure to enhance credibility in the criminal identification procedure.

2) Unreasonable sentencing

The above sentence of the court below is too unreasonable.

2. Determination

A. Points of mistake of facts

1) In the criminal identification procedure based on the appearance, etc. of the suspect, it shall be deemed that the credibility of the witness's statement in the criminal identification procedure by such a method is low because it is possible for the suspect to make the suspect aware that the suspect himself/herself or a person on his/her photograph is suspected of being a criminal under the limitation and inaccuracy of his/her memory, and in detail, the suspect's testimony is considerably high probative value (see Supreme Court Decision 2003Do7033, Feb. 27, 2004). However, if there are additional circumstances such as the suspect's appearance in the previous criminal identification procedure, not only the victim's statement but also there are other circumstances to suspect the suspect as a criminal, unless there is any motive or reason to make a false statement (see Supreme Court Decision 2003Do70333, Feb. 27, 2004).

In light of the above legal principles, it is necessary to examine whether the probative value of evidence, which was directly witness, has been credibility of each of the criminal facts of this case.

2) Determination as to paragraphs 1 through 3, 5, and 6 of the facts charged

The evidence conforming to the facts charged in the above facts of the crime is the witness B, C, Kim Il, D, and E, each of the statements shown in the records of the case, namely, the following circumstances: (a) the witness B et al. was killed at the time of the witness to the crime of this case; and (b) C, D, and E were witnessed at a certain distance of 2 meters at the time of the criminal's self-defense; (c) it appears that they could have been able to have been witnessed at a relatively clear range; (b) B and E appeared several times after the first witness; and (c) the offender was given money at the time of the first witness to the police officer on January 2012; and (b) the B, C, at the investigative agency and court of the court of the first instance, took a photograph of the defendant to have obscene act at the time of the occurrence of the crime of this case; and (d) the victim took part in the vehicle.

The number, color, and model are specifically stated, and the same in the same place at the time.

12 Report 112, the police officer arrived at the site for ten minutes, and the police officer raises the offender.

The Defendant appeared to be a criminal on the ground that he/she heard B, etc.’s testimony on the crime of this case and presented his/her photograph to the Defendant, and C, etc. consistently stated that he/she had correctly informed the police officer of the vehicle number that he/she was next to the crime of this case, and the vehicle number that C, etc. was almost identical to the vehicle number that he/she memoryd. As such, it is difficult to dismiss the credibility of B, etc.’s statement on the ground that five witnesses appeared to have used the crime of this case’s cell phone number at the time when he/she appeared to have been aware of the fact that he/she had been using the Defendant’s cell phone number at the time of the crime of this case, and that the Defendant appeared to have used the Defendant’s first cell phone number at the time of the crime of this case, and that the Defendant appeared to have been using the Defendant’s cell phone number at the time of the crime of this case, including the Defendant’s appearance and the fact that it was not significantly different from the Defendant’s temporary appearance, and that the Defendant was using the Defendant’s cell phone.

Therefore, the defendant's argument on this part is without merit.

3) Determination as to Article 4 of the facts charged

According to the fact that the defendant used his/her mobile phone in the boundary of the place of the occurrence of the case before and after the date of the above charges, the defendant was identified as the suspect by reporting the defendant in his/her photograph and court, it is true that there is a doubt as to whether the defendant was not a criminal who committed the same act as stated in Paragraph 4 of the facts charged in this case.

However, since 00 witness of this case does not designate the defendant as a suspect among various similar figures, it is confirmed whether only one defendant is a suspect under the condition of his own photograph, and it is highly probable that the defendant was a suspect, and 00 only stated that he was a cap, salut, salut, and salute, salute and salute worn at the time of preparation of a written statement against the first suspect, and there is no specific description of the suspect's face face, salute, salute, and salute, and salute salute, etc., 00 were worn by the suspect at the time, and it is difficult to conclude that the witness was not a suspect under the condition of 00, considering that there is no reasonable doubt that the suspect was a suspect under the condition of 00, and that there was no evidence that the suspect was a witness under the condition of 000, salute of the defendant's photograph at the time of presentation.

3. Conclusion

Therefore, the appeal by the defendant against the judgment of the court below shall be reversed for some reasons, and the court below considered the above part as concurrent crimes between the defendant's remaining criminal facts and Article 37 of the Criminal Code and rendered a single sentence. Thus, the judgment of the court below shall be reversed in its entirety in accordance with Article 364 (6) of the Criminal Procedure Act, and the public prosecutor and the defendant's each assertion of unfair sentencing shall be reversed, and the following decision shall be

Criminal facts

1. On January 1, 2012, the Defendant committed a publicly obscene act, such as: (a) following the building of 000 parts of a 16th century located in Ulsan-gun, Ulsan-gun, which is a student of E,00 high schools E,00, B, and00, which is a student of the 000-class E, B, and00 high schools; and (b) scaming sexual organ into a scam and scaming it; (c) the Defendant committed an obscene act;

2. On March 2012, the Defendant: (a) committed an obscene act openly, such as unloading 00 high-level school students from the 00 studio front of Ulsan-gun, Ulsan-gun, in a 00-round 00-round 13:0,000; (b) doing so; (c) doing so; (d) doing so; (d) do so; (e) do so; (e) do so; (e) do so;

3. On April 2012, the Defendant: (a) committed a publicly obscene act, such as: (b) 17:30, on the front of B, a student of Ulsan-gun, who was a student of at least 000, in front of B,000, in which the name located in Ulsan-gun cannot be identified; and (c) b) b, a student of at least 00, in a scam and scambling the sexual organ, thereby committing a self-defense;

4. On May 7, 2012: (a) the Defendant publicly commits an obscene act, such as unloading C, B,00,000 high school students from Ulsan-gun, Ulsan-gun, around 00, at around 00, whether he/she was a student of C, B,00, and C, B,000, who was a student of Ulsan-gun, and committing a self-defense by taking a sexual organ into consideration; (b) the Defendant publicly commits an obscene act;

5. At around 11:30 on May 11, 2012, the Defendant publicly conducted an obscene act, such as unloading a 00-high school student E, 000, and D from 00 flive play lives mold, located in Ulsan-gun, U.S., and committing a self-defensive act.

Summary of Evidence

1. Each statement of B, C, 00, D and E in the second trial records of the court below

1. On board the enemy, vehicle photographs, investigation reports (as to attachment of a detailed statement of currency), and telephone calls;

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 245 (Selection of Imprisonment with Labor)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravated Punishment on May 11, 2012)

Aggravation of concurrent crimes with obscenity stated in the public performance crime

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Considerations in favor of the Defendant among the following reasons for sentencing)

1. Probation and community service order;

Article 62-2 (1) of the Criminal Act

Grounds for sentencing

The crime of this case is a case in which the defendant committed an obscene act in front of many unspecified female students five times, and the nature of the crime is not less than that of the defendant, the defendant denies his wrong and denies the crime, and the defendant has the previous ability to be punished for the same kind of crime, the defendant is the most recent family members who gather her mother, the defendant has no history of being punished for the suspension of qualification or more, and the defendant has no history of being punished for the punishment as shown in the record, such as the age and environment of the defendant. In full view of all other circumstances, the sentence shall be determined as ordered.

Parts of innocence

1. Summary of the facts charged

On April 17, 2012, at around 08:50, the Defendant openly committed an obscene act, such as: (a) 000 students, who were students of the high school, were 100 high school, and was scambling sexual organ and scambling it; and (b) 3) the Defendant committed an obscene act.

2. Determination

As seen earlier in the grounds for reversal, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the above defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges fixed line

Judge Ro Round

Judges Mahova-Gyeong