Attorney Southern-il

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

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

The defendant shall be subject to employment restrictions for each two years at child and juvenile-related institutions, etc. and welfare facilities for disabled persons.

A. Defendant

The sentence of the lower court (eight months of imprisonment, 80 hours of completing a sexual assault treatment program, 2 years of employment restriction) is too unreasonable.

(b) Prosecutors;

The sentence of the court below is too uneasible and unfair.

2. Ex officio determination

The grounds for appeal by the defendant and prosecutor shall be examined ex officio prior to judgment.

According to Article 29-3(1) of the Child Welfare Act, when a court declares a sentence or medical treatment and custody for committing a crime related to child abuse, it shall, by judgment, issue an order to operate a child-related institution or not to provide employment or actual labor to a child-related institution during the period of employment restriction (hereinafter referred to as "employment restriction order") at the same time with the judgment of a case related to child abuse. In addition, according to Article 3-7-2 of the same Act, "child abuse-related crime" refers to a crime falling under any of the crimes under Article 2-4 of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes or Articles 250 through 255 of the Criminal Act against a child.

Although the instant crime was committed against a child under 13 years of age, the Defendant does not constitute a crime of child abuse under subparagraph 4 (l) of Article 2 of the Act on Special Cases concerning the Punishment, etc. of Child Abuse Crimes, i.e., child abuse by his guardian, as long as the Defendant is not the victim’s guardian, and does not fall under any of the crimes under the subparagraphs of Article 71(1) of the Child Welfare Act. Therefore, as long as the Defendant cannot be deemed to have committed a crime of child abuse-related, the lower court, despite that the Defendant cannot issue an employment restriction order against a child-related institution, did not order the Defendant to place an employment restriction order for two years

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for ex officio reversal, and the following is again decided after oral argument.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 71(1)1-2 and Article 17 subparag. 2 of the Child Welfare Act, Selection of Imprisonment

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

The former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 16622, Nov. 26, 2019); the proviso to Article 49(1) and the proviso to Article 50(1) of the former Act (amended by Act No. 16622, Nov. 26, 2019); and the fact that the registration of personal information and the completion of sexual assault treatment programs can expect the effect of recidivism to a certain extent; and other circumstances, such as the defendant’s age, family environment, social relationship, expected profits and preventive effects from disclosure and notification orders, and disadvantages and side effects from disclosure and notification of personal information, should be considered as special circumstances where disclosure and notification of personal information of the defendant is prohibited

1. An employment restriction order;

Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 16622, Nov. 26, 2019); Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; the main sentence of Article 59-3(1) of the Act on Welfare of Persons with Disabilities

Reasons for sentencing

1. Scope of applicable sentences under law: One month to ten years; and

2. Non-application of the sentencing criteria: The sentencing criteria are not set;

3. Determination of sentence;

The crime of this case committed sexual abuse against a victim of 13 years of age who the defendant came to know through smartphone hosting display, in light of the course, contents, degree, method, etc. of the crime, and the contents of the crime are very serious. The victim of the Green Age appears to have experienced considerable difficulties in forming a sexual value and self-help in the future due to the crime of this case. The defendant did not receive a letter from the victim and his family members.

However, considering the favorable circumstances for the defendant, such as the fact that the defendant acknowledges the crime of this case, the first offender who has no record of the crime, and the fact that the victim's remaining after maturity was committed once, etc., the defendant's age, environment, family relationship, motive and circumstance of the crime, etc. In addition, all the sentencing conditions specified in the arguments of this case, such as the defendant's age, environment, family relation, motive

Registration and submission of personal information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency pursuant to Article 43

Judges Kang Sung-young

Judges Yu-ju