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(영문) 서울고등법원 2019.11.28 2019노1591
아동ㆍ청소년의성보호에관한법률위반(음란물제작ㆍ배포등)등
Text

The judgment of the court below (including the part not guilty in the grounds) shall be reversed.

A defendant shall be punished by imprisonment for not less than three years and four months.

(b) the defendant;

Reasons

1. Summary of grounds for appeal;

A. As to Defendant 1’s violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes”), among the facts charged in the instant case, Defendant 1 made a confession at an investigative agency and the lower court, but the video, etc. seized by an investigative agency is not admissible as evidence obtained without a lawful search and seizure warrant. Thus, the lower court found Defendant 1 guilty of this part of the facts charged, but the lower court erred by misapprehending the legal doctrine and thus, the lower court’s sentencing is too unreasonable.

3) Although there are special circumstances that may not disclose and notify the personal information of the accused in violation of an order of disclosure disclosure, it is unreasonable for the lower court to order the accused to disclose and notify the information of the accused for five years. 4) It is unreasonable for the lower court to order the accused to be subject to employment restriction for five years with child and juvenile-related institutions, etc.

B. Prosecutor 1) In the facts charged in this case of mistake of facts, the court below found the Defendant not guilty of this part of the charges, which is erroneous in misunderstanding of facts, on September 12, 2018, concerning the violation of the Child Welfare Act (hereinafter “Child Welfare Act”) and the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse ( sex purchase, etc.) on the same day. However, according to the evidence submitted by the prosecutor, the court below found the Defendant not guilty of this part of the charges.

2. Judgment on the grounds for appeal by the defendant and prosecutor ex officio shall be examined ex officio.

A. As to the violation of the Child Welfare Act of September 12, 2018 among the facts charged in the instant case at the trial of the prosecutor, the method of the crime is “sexual abuse by inserting the victim’s sexual organ into his/her negative organ and considering the victim’s hand,” and “sexual abuse” in the method of the crime.

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