[1] Whether Article 26(3) and (4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which recognize the admissibility of a video-recording that recorded the statement of the victim of a sexual crime, violates the Constitution (negative)

[2] The method of determining the credibility of a statement made by a child victimized by sexual harassment

[3] Type and degree of "Assault" in the crime of indecent act by compulsion

[4] The meaning of and standard for determining “indecent act” in the crime of indecent act by compulsion

[1] Articles 10 and 11(1) of the Constitution of the Republic of Korea; Article 26(3) and (4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 161-2, 163, 294, 295, and 308 of the Criminal Procedure Act / [2] Articles 298 and 305 of the Criminal Act; Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 308 of the Criminal Procedure Act / [3] Article 298 of the Criminal Act / [4] Article 298 of the Criminal Act

[2] Supreme Court Decision 2005Da61027 decided Oct. 26, 2006 (Gong2006Ha, 1983) Supreme Court Decision 2006Do2520 decided Jul. 10, 2008 (Gong2008Ha, 1191) / [3] Supreme Court Decision 2001Do2417 decided Apr. 26, 2002 (Gong2002Sang, 1306) / [3] Supreme Court Decision 94Do630 decided Aug. 23, 1994 (Gong194Ha, 2567) / [4] Supreme Court Decision 2007Do1050 decided Mar. 13, 2008; Supreme Court Decision 2007Do1050 decided Feb. 36, 2010

Defendant

Defendant and Applicant for medical treatment and custody and respondent for attachment order

Attorney Kim Young-ho

Assistants

Daejeon High Court Decision 2011No444, 2011No21, 2011No71 decided March 28, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal on the unconstitutionality of Article 26 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Article 26(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides, “If the victim is under the age of 16 or lacks the ability to discern things or make decisions due to any physical or mental disability, the content and process of the victim’s statement and the investigation shall be recorded and kept with a video recording device, such as a video recording device,” and Article 26(4) of the same Act provides, “The victim’s statement recorded in a video recording made under paragraph (3) may be admitted as evidence if it is recognized to be genuine by the statement of the victim or a person in a fiduciary relationship who was present in the investigation process on the day of preparatory hearing or court date.”

Each of the above provisions is prepared to ensure that the human rights of the victim of a sexual crime is not infringed in the course of investigation and trial. The legislative necessity and legitimacy is recognized. In order to recognize admissibility of the victim's statement recorded in video recording under the above provisions, at least a person present in the investigative process must make a statement recognizing the authenticity thereof on the date of preparatory hearing or trial. The defendant may arrest the victim's statement by examining circumstances necessary for determining admissibility and probative value of the victim's statement, such as whether the victim's statement recorded in video recording conforms to the contents of the statement in fact, attitude of the victim's statement at the time of video recording, details of the statement, etc. Even though admissibility of the victim's statement is recognized through such procedures, the judge shall determine probative value of the victim's statement in accordance with logical and empirical rules including the above circumstances. In this case, the prosecutor is still responsible for proving the victim's statement to the extent that there is no reasonable doubt about the crime, notwithstanding the above provisions, and if deemed necessary, the court may summon the victim's right to participate in the witness examination or ex officio the witness examination.

Therefore, the lower court’s judgment that recognized the admissibility of each of the statements made by Nonparty 1 and Nonparty 2 recorded in video recordings in accordance with Article 26(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and employed as evidence of guilt did not err by misapprehending the legal doctrine on the unconstitutionality of the above legal provision or the burden of proof of facts charged

2. As to the ground of appeal on the defendant's case

A. When determining the credibility of a statement made by an indecent act victim by evidence at an investigative agency, considering the fact that the child’s age is strong and is likely to confuse the situation and reality, or to not properly recognize the source of memory, the child’s age should be examined; how much the child’s age occurred; how much the child’s statement was made after the occurrence of the case; how much the guardian or investigator who first heard the child’s damage in the course of the process from the occurrence of the case to the occurrence of the statement; and whether there is room to bring about a change in the child memory by providing the child with information not true at a simple prejudice or inducing a specific answer through repeated newspapers; whether the question is not repeated that may be found by the questioner at the time of the statement; whether the child’s statement was affected by the interviewer; whether the child’s statement was made by the interviewer; what kind of statements were made in court; and whether the content of the statement should also be reviewed and explained in detail to the investigative agency; and whether the statement contains more than 200 detailed descriptions and descriptions of the case’s.

According to the reasoning of the judgment below, the court below judged that the defendant and the requester for medical treatment and custody and the requester for attachment order (hereinafter referred to as the "defendant") committed an indecent act by force on the part of the 8 years old and 7 years old and female women's sexual part by hand, it is consistent with the victim's statement about the core contents of the damage, and it is reasonable that the victims filed a false complaint in light of the investigation process of the crime of this case and the circumstances in which the victims' parents specified the defendant as the offender and the victim's parents filed a criminal complaint. The court below found that the victim's statement was credibility in the victim's statement on the grounds of the circumstances as stated in its reasoning, such as the circumstance that the contents of the defendant's name and the attached main part at the time of arrest coincide with the victim's statement about the situation at the time of the crime of this case and the like.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations,

B. The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is deemed an indecent act. In such a case, the assault does not necessarily require that the degree of suppressing the other party’s will be limited, and inasmuch as there is the exercise of tangible force contrary to the other party’s will, regardless of its force, it is objectively an indecent act that causes sexual humiliation or aversion to the general public and infringes on the victim’s sexual freedom. Whether it constitutes such an act should be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the victim and the victim, circumstances leading to such act, specific form of act, objective situation, and sexual morality at that time (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002).

According to the facts established by the court below, the defendant found that the victims play in the public market and caused the victims to do so by hand. In addition, considering the relation between the defendant and the victims recognized by the evidence duly adopted, the victim's age and intent, the situation and situation leading to the above act, response of the victims after the above act, and influence on the victims, it is difficult to view that the defendant allowed the victims to take advantage of the victim's taking advantage of the victim's taking advantage of the victim's taking advantage of the above act, even if the victim did not raise any resistance, even though the defendant did not take any resistance, the defendant's taking advantage of the victim's taking advantage of the form of force which was committed against the will of the victims. The defendant's above act is a positive act, but it constitutes an act of causing sexual humiliation or aversion to the general public, and it constitutes an act contrary to good sexual morality, and it constitutes an act contrary to the legal principles as seen in the above.

The lower court did not err by misapprehending the legal doctrine on the establishment of the crime of indecent act by compulsion, contrary to what is alleged in the grounds of appeal.

3. As to the medical treatment and custody claim and the request for attachment order

When a defendant files an appeal against a prosecuted case, the appeal is deemed to have been filed with respect to the medical treatment and custody case and the case of request for attachment order, but the appellate brief does not state the grounds for appeal and does not state the grounds for appeal.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)