In a case where Defendant was prosecuted for violating the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes on the ground that female victims were stolen from side partitions by intrusion into toilets installed and managed by Company A for the purpose of meeting sexual desire, the case affirming the judgment of the first instance which convicted Defendant on the ground that the crime of violation of Article 12 of the above Act was established when the public toilets, etc. prescribed in subparagraphs 1 through 5 of Article 2 of the Public Toilets, etc. Act were invaded, on the grounds that the above toilets invaded by Defendant constituted public toilets, etc., in full view of all the circumstances, the case affirming the judgment of the court of first instance which convicted Defendant on the ground that

In a case where Defendant was indicted for violation of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15156, Dec. 12, 2017; hereinafter “former Sexual Violence Punishment Act”) on the ground that female victims were stolen by intrusion into toilets in a building installed and managed by Gap corporation (hereinafter “B toilet”) for the purpose of meeting sexual desire, the case held that Article 2 subparag. 1 of the Public Toilets Act provides that the crime of violation of Article 12 of the former Sexual Violence Punishment Act is established when the Defendant intruded into public toilets in a public toilet, etc. prescribed in subparagraphs 1 through 5 of Article 2 of the Public Toilets Act (hereinafter “Act”), and that it constitutes “public toilets, etc. installed by the State, local governments, corporations, or individuals” and that “public toilets are not installed in public toilets,” and thus, it is justifiable for the Defendant to be deemed “public toilets,” which are “public toilets installed in public toilets,” which are “public toilets,” and are “public toilets,” which are installed in public toilets or public toilets.”

Article 12 of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15156, Dec. 12, 2017); Article 2 of the Public Toilets, etc. Act

Defendant

Defendant

Yellow Shee et al. and one other

Law Firm Wool, Attorneys Kim Byung-jin et al.

Daegu District Court Decision 2017Gohap2861 Decided August 8, 2017

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

(a) Fact and legal scenarios;

The judgment of the court below which convicted the defendant by applying Article 12 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15156, Dec. 12, 2017; hereinafter “former Sexual Crimes Punishment Act”) does not constitute public toilets, etc. However, the judgment of the court below which convicted the defendant by misunderstanding the facts and legal principles.

B. Unreasonable sentencing

The punishment sentenced by the court below (two months of imprisonment, two years of probation, and forty hours of the sexual assault treatment lectures) is too unreasonable.

2. Determination

A. Whether the facts and legal scenarios are true

According to the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, toilets invaded by the defendant constitutes public toilets as stipulated in Article 2 subparagraph 1 of the Public Toilets, etc. Act (hereinafter “Public Toilets Act”). Therefore, it is justified and acceptable for the court below to find the defendant guilty on the charges of the defendant by applying Article 12 of the former Sexual Violence Punishment Act, and there is no error of law by misunderstanding the facts and legal principles in the judgment of the court below, which affected the conclusion of the judgment. Accordingly, this part of the defendant’s assertion is without merit.

① 구 성폭력처벌법 제12조 는 공중화장실법 제2조 제1호 내지 제5호 에서 정한 화장실(이하 ‘공중화장실 등’이라 한다)을 침입한 경우에 성립한다. 위 공중화장실법에서 정한 공중화장실 등은 ㉠ 공중화장실( 제1호 , 공중이 이용하도록 제공하기 위하여 국가, 지방자치단체, 법인 또는 개인이 설치하는 화장실), ㉡ 개방화장실( 제2호 , 공공기관의 시설물에 설치된 화장실 중 공중이 이용하도록 개방된 화장실 또는 제9조 제2항 에 따라 특별자치도지사·시장·군수·구청장이 지정한 화장실), ㉢ 이동화장실( 제3호 , 많은 사람이 모이는 행사 등에 일시적으로 이용하기 위하여 설치하는 화장실), ㉣ 간이화장실( 제4호 , 공중화장실을 설치하기 어려운 지역에 설치한 소규모의 화장실), ㉤ 유료화장실( 제5호 , 화장실의 설치·관리자가 이용자에게 이용료를 받을 수 있는 화장실)을 의미한다.

② Meanwhile, Article 2 Subparag. 1 of the Public Toilets Act provides that “public toilets” refers to toilets installed by the State, local governments, corporations, or individuals to provide for public use, and the requirements for public toilets are not delegated to other regulations or subordinate regulations. Therefore, it is reasonable to deem that “public toilets installed by the State, local governments, corporations, or individuals to provide for public use” under the said Act constitutes public toilets under the said Act.

③ Since the instant toilets were installed within the ○○○○○○○○ in which Nonindicted Co., Ltd., a corporation, and were provided for free use, there is no room for falling under subparagraphs 2 through 5 of Article 2 of the Public Toilets Act, and thus, whether the said toilets constitute “public toilets” as prescribed in subparagraph 1.

④ However, the above “public” refers to “human beings,” “general public,” and “general public,” and if the use of public toilets is open to the general public in light of the nature, size, and form of use of the building, the use of public toilets should be deemed to have been provided to the general public.

⑤ As the instant toilets are provided for cultural and assembly facilities for the use of unspecified persons, the nature of the above space is significant to the extent that it has a public nature, and users cannot be easily identified. In addition, the Nonindicted Co., Ltd., which installed the instant toilets, is a corporation with a stake of 81.14% in Daegu Metropolitan City, which is a local government, and the Nonindicted Co., Ltd., is designing and constructing, managing, and operating the instant toilets as public toilets under the Public Toilets Act in order to provide the instant toilets to the public. In addition, in Daegu Metropolitan City, which is an administrative agency having jurisdiction over the administrative agency, the instant toilets as public toilets as prescribed in the Public Toilets Act. Accordingly, it is reasonable to deem that the instant toilets as toilets installed from the time of their installation to provide them to the public.

B. Whether to impose unfair sentencing

It is desirable to refrain from rendering a sentence that does not change in the conditions of sentencing compared with the first instance court, and where the first instance court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect the first instance court’s sentencing. Although the first instance court’s sentencing falls within the reasonable scope of discretion, it is reasonable to reverse the first instance court’s judgment solely on the ground that it is somewhat different from the appellate court’s opinion (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Based on the above legal principles, there is no change in the conditions of sentencing compared with the original court because a new sentencing data is not submitted in the trial, and considering the factors of sentencing revealed in the records and arguments in this case, the lower court’s sentencing is too inappropriate and it does not seem to have exceeded the reasonable scope of discretion. Accordingly, the Defendant’s assertion on this part is without merit.

3. Conclusion

Therefore, the Defendant’s appeal is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition (However, pursuant to Article 25(1) of the Regulations on Criminal Procedure, Article 12 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes shall be amended as Article 12 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15156, Dec. 12, 2017).)

Judges Permitted-gu (Presiding Judge)