Minor indecent act by compulsion)

2013. Written order to attach (Joint) 46

Masan (the 89-years, South) and North,

Residential Suwon-si District:

Suwon-si District of Original domicile

Provided, That the execution of the above sentence shall be suspended for three years from the date this judgment became final.

Disclosure of information on the accused shall be made public through an information and communications network for three years.

The notice information to the defendant shall be notified for three years.

The request for the attachment order of this case is dismissed.

The Defendant, in the state of lack of ability to discern things or make decisions due to intellectual disorder, was willing to commit an indecent act by force against other students of elementary schools attending school with sexual resistance, and on March 28, 2013: around 00, the Defendant was waiting for victims by boarding an elevator in the Suwon-si Syundongdongdongdong-gu Seoul Metropolitan City.

1. The crime against the victim ○○;

On March 28, 2013: around 20: Around 20: Around 20, the Defendant committed an indecent act against a victim of mental disorder in a state of mental disorder by forcing him/her to put him/her into his/her inner part by taking the hand of the victim Lee-○ (the remaining and the age of 10 at the time) who boarded in the elevator to walk in the elevator.

2. Crimes against victims and △△△△;

The Defendant, at around 29:29, committed an indecent act by force against a victim in a state of mental disorder, in a state of mental disorder, in such a way that the victim, who was on board an elevator, was able to take the hand of the victim △△△△ ( South, 9 years old at that time), brought the victim into the outside of her inner part.

Summary of Evidence

Criminal facts

1. Police suspect interrogation protocol of the accused;

1. The point of a mental or physical disability judgment with respect to an investigation report related to child indecent act, each CCTV camera image photograph, stenographic record, investigation report (the victim's ○○ specific purpose and the victim's right to refuse to make a statement about damage to ○○○○), a written statement, a copy of a medical record, a certificate, and a professional opinion in a child abuse case (Evidence List 2, 3, 5, 7, 8, 8, 9, 13, and 20);

According to the evidence mentioned above and the investigation before the claim against the defendant, ① the defendant showed a late increase in the development after birth, and the case where the family of the married person was missing several times since the fourth year of age, and the parent's prompt arrival protection was made thereafter, and the defendant graduated from the middle and high school of the disabled after having gone through an elementary school with special classes, and the mother of the defendant was living together with the defendant at the time of departure from the middle and high school of the disabled, and ② the defendant was examined as a disability in the Dongwon Hospital around August 2010, and the clinical psychology of the defendant was examined as a result of the above psychological evaluation report on the examination. As a result of the above examination, the clinical psychology of the defendant was found to fall considerably below the whole intelligent FSI Q20 (Presumption), language intelligence of less than 20 (Presumption), the defendant was found to have been unable to communicate with the public prosecutor's ability at the time of communication as appropriate.

Therefore, considering the current level of recognition function rather than the actual level measured, it seems evident that the restriction on fundamental recognition function would be apparent when considering the overall social records and the level of pictures," "S Q Q Q is 69 (491 years old on April 91) with respect to the defendant's social well-being," and "it is possible to use 12 or more words by themselves, but it is possible to use 12 or more words in basic sanitation and personal treatment." Thus, it is evaluated that the defendant was in a state of less than 35 years old, which falls under the mental body of the city, and that the defendant was in a state of weak recognition of his ability to recognize the defendant's mental disorder in light of the circumstances of the crime of this case and the circumstances of the defendant's intellectual disability before and after the examination of this case.

Application of Statutes

1. Article applicable to criminal facts;

Article 7(3) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11556, Dec. 18, 2012); Article 298 of the Criminal Act (Appointment of Imprisonment)

1. Statutory mitigation;

Articles 10(2) and (1) and 55(1)3 of each Criminal Code.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravated Punishment on the Violation of Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Victims ○○○ with a heavier penalty (a minor's indecent act under thirteen years of age)]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act. Article 55 (1) 3 of the Criminal Act (Considerations in Sentencing)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Taking into account favorable circumstances, etc. among the following reasons for sentencing)

1. An order for disclosure;

Article 38(1)1 and (3) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11572, Dec. 18, 2012; hereinafter the same shall apply)

1. An order to notify;

Article 38-2 (1) 1 and (3) of the former Act on the Protection of Children and Juveniles against Sexual Abuse

Grounds for sentencing

1. The scope of punishment by law;

From March to March 11, 200

2. Scope of sentence by the sentencing criteria; and

A. As to each of the crimes listed in the holding, each of the following:

[Determination of Type] A sex crime group, general standards, sex crimes subject to the age of less than 13, type 3 (Special Indecent Act by Indecent Act by Force): Mitigation elements of a person with mental disability (no person is responsible for him/her)

[Scope of Recommendations] Imprisonment of 2 years and 6 months to 5 years (the area of mitigation)

【General Exemplarys : No record of criminal punishment;

(b) Criteria for handling multiple crimes;

Imprisonment between June and June 7 years [five years + (five years X 1/2)]

3. The instant crime committed by the sentence decision was committed by force by force of the victims, who are only nine years old and ten years old in the elevator in which the Defendant was sealed, in view of the following: (a) the degree of indecent act is not somewhat weak; and (b) the victims and their families, whose sexual values have not yet been established in the instant case, have suffered considerable mental impulse and mental impulses; and (c) the Defendant may not be subject to strict punishment.

However, the defendant was found to have committed the crime of this case in a state of mental disorder due to intellectual disorder, and the defendant was found to have been developing from the time when the mother of the defendant was close to the time, and there was no record of criminal punishment, and the defendant did not have any record of criminal punishment. In addition, the defendant determined the punishment against the defendant by taking into account all the circumstances revealed in the arguments of this case, such as the background of the crime of this case, the situation before and after the crime of this case, the age, character and conduct of the defendant, family environment, but it is determined that the minimum of the sentencing range of the recommended sentence according to the sentencing guidelines (two years and six months) is somewhat high. Thus, the punishment against the defendant shall be set within the scope of the applicable sentencing range in law, and the execution of the above punishment shall be suspended only once.

Registration of Personal Information

Where a judgment of conviction becomes final and conclusive against the defendant, the defendant is a person subject to registration of personal information in accordance with Article 4(2) of the Addenda of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Act No. 11556, Dec. 18, 2012); Article 33(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse; Article 42(1) of the main sentence of Article 42(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; thus

Exemption from orders to attend lectures

It is examined whether the defendant will be ordered to attend the lecture for treatment of sexual assault pursuant to Article 4 and Article 21 (2) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse.

In light of the following, it is difficult to readily conclude that the defendant is in danger of recommitting a sexual crime as mentioned above, as well as the current intellectual ability of the defendant and the defendant's mother to commute to and from work, and the defendant's right to attend a school is under protection, etc., it is anticipated that the effect of preventing sexual crimes that can be achieved by imposing the above order to attend a school would not be significant, but the disadvantage and side effect of the defendant and his family members would be reasonable. In full view of these circumstances, there are special circumstances where the order to attend a school cannot be imposed on the defendant.

Since it is judged that an order to attend a lecture is not imposed.

Part requesting attachment of location tracking device

1. Summary of the request for attachment order;

A person who is requested to attach an attachment order has committed a sexual crime against a minor under the age of 19 and is likely to recommit a sexual crime in light of the circumstances, environment, character and conduct, intellectual ability, etc. of the crime.

2. Determination

A. Article 5(1)4 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders provides that "When a sexual crime is committed against a person under the age of 19," one of the requirements for the attachment of an electronic tracking device is deemed likely to recommit a sexual crime. Meanwhile, pursuant to Article 9(4)1 and 4 of the same Act, the court shall dismiss the request for the attachment order, as well as when the request for the attachment order is deemed groundless and when the court issues a suspended sentence for a sexual crime case, it shall dismiss the request for the attachment order: Provided, That even in such a case, when the court orders a person who committed a sexual crime to be put on probation while suspending the execution of punishment, it may order the person who committed the sexual crime to attach an electronic tracking device within the scope of the period of probation pursuant to Article 28(1)

B. Therefore, the risk of recidivism of a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders is insufficient to examine whether a person subject to an attachment order is likely to recommit a sexual crime. The risk of recidivism of a sexual crime refers to the job and environment of a person subject to the attachment order request, the motive and means of the crime, the circumstances after the crime, and the appearance of the person subject to the attachment order. The existence of the risk of recidivism of a sexual crime means that it is highly probable that the person subject to an attachment order would destroy the legal peace by committing a sexual crime again in the future. The determination should be made objectively by comprehensively assessing various circumstances, such as the job and environment

Since the judgment is a constructive judgment on the future, it shall be based on the time of the judgment (Supreme Court Decision 2010.

12.9 (see, e.g., Supreme Court Decision 2010Do7410, 2010Do444, etc.)

In this case, the following circumstances acknowledged by the evidence adopted by this Court, namely, ① there is no criminal record, including sexual assault, against the person who requested the attachment order, ② the assessment of the risk of recidivism against the person who requested the attachment order, ② the assessment of the risk of recidivism by the Korean sex offender according to the results of (K-SORAS) measurement, are 15; but this constitutes a high level (13-29), which constitutes a lower portion among the areas (13-29). ③ After the graduation of the disabled, the person who requested the attachment order has been living together with the mother and living together with the mother at the restaurant operated by the mother, and the mother of the person who requested the attachment order had more detailed protection of the person who requested the attachment order after this case, and it is difficult to readily conclude that the person who requested the attachment order had to commit a sexual crime again, comprehensively taking account of the following circumstances:

C. Meanwhile, the location tracking by an electronic device intends to prevent recidivism of a sexual crime and protect people from sexual crimes by tracking and monitoring the location of a person who has committed a sexual crime, among those who have committed a sexual crime, by real-time tracking and monitoring the location of the person who is in danger of recidivism. However, this does not mean that the location of the person subject to attachment can only identify the location of the person subject to attachment, but it is not possible to grasp the content of the act of the person subject to attachment or restrict the act of the person subject to attachment, and thus, if the person commits a sexual crime even though the person is installed with an electronic device, the crime itself cannot be prevented. However, it is not easy for the State to proceed to commit a crime with knowledge that the person is tracking and monitoring his/her location in real time, and it is practically impossible

However, in light of the intellectual ability of the person to whom the attachment order was requested, it is difficult to expect that the location tracking by an electronic device will bring about a psychological effect on the person to whom the attachment order was requested as above. The investigator in charge of the probation office who investigated the request of the person to whom the attachment order was requested cannot expect the effect of the attachment of an electronic device and treatment program as the person with disabilities of Grade I with regard to the attachment of the electronic device against the person to whom the attachment order was requested.

D. Therefore, the request for the attachment order of this case is groundless, and furthermore, given that the person to whom the attachment order of this case was requested is ordered to suspend the execution in consideration of various circumstances as seen earlier, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 and 4 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders.

Judges Jeon Soo-tae

The number of judges;