[Defendant-Appellee]

A defendant shall be punished by imprisonment for five years.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

The defendant shall be subject to employment restrictions for five years with institutions related to children and juveniles, etc. and welfare facilities for disabled persons.

The sentence of the court below (six years of imprisonment, etc.) is too unreasonable.

2. Determination

The crime of this case was committed by the Defendant following a victim without any awareness of her face-to-face, resulting in rape and attempted rape, and resulting in injury on the part of the victim. It is not very good that the crime was committed. Since the instant case, the victim complained of the victim who was unable to lead a normal daily life, such as taking out out her out of the country, and was suffering from considerable mental and physical shock and pain. Such circumstances are disadvantageous to the Defendant.

On the other hand, the Defendant: (a) led to the confession from the lower court to the offense of this case; (b) committed several times in the past, and (c) expressed the victim’s intent to commit the crime of attempted rape; (d) the Defendant committed rape. The Defendant paid a considerable amount of money for the recovery, etc. of damage inflicted upon the victim in money, transferred his intent to commit the crime; and (c) submitted to this court a written application of no punishment to the effect that the victim does not want the punishment of the Defendant by receiving it. It is evident that the social relationship of the Defendant is evident, such as the Defendant’s desire for the Defendant’s wife-friendly relationship, and there is no history of criminal punishment. Such circumstances are favorable to the Defendant.

In full view of such circumstances as the Defendant’s age, character and conduct, environment, family relationship, motive, means and consequence of the crime, circumstances after the crime, and the scope of recommended punishment according to the sentencing guidelines set by the Supreme Court sentencing committee, the sentence of the lower court is deemed unreasonable.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence recognized by this court is the same as that of the original judgment, 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;

Articles 8(1), 15, and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 319(1) and 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Supreme Court Decision 2007Da1541, Apr. 2, 2007

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An employment restriction order;

Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( November 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

1. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the defendant has no record of punishment for sexual crimes; the registration of personal information, the completion of programs for treating sexual assault, and restrictions on employment can expect the effect of preventing recidivism to a certain extent; the defendant’s age, occupation, social relationship; the details and circumstances of the crime in this case; other benefits expected by the disclosure or notification order; the effect of the crime in this case; disadvantages and anticipated side effects therefrom; etc., there are special circumstances where disclosure and notification of the defendant’s personal information may not be made).

Reasons for sentencing

The punishment as ordered shall be determined by taking into account all the elements of sentencing in accordance with paragraph (2).

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 subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Judges Kim Jong-won

Judges Lee Dong-young