A defendant shall be punished by imprisonment for four years.

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

For each five years, an employment restriction shall be issued to the accused in institutions, etc. related to children and juveniles and welfare facilities for persons with disabilities.

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

The prosecutor's appeal on the part not guilty of the defendant's case is dismissed.

(a) Defendant and the respondent for an attachment order;

1) misunderstanding of facts or misunderstanding of legal principles as to the guilty portion among the defendant case

Defendant and the person subject to the request for attachment order (hereinafter “Defendant”) are merely 18 years old at the time of committing the crime as set forth in Articles 1 and 17 of the Child Welfare Act with respect to Nonindicted Party 1 as indicated in the lower judgment, and do not constitute a condition under which “an abuse” prohibited under each subparagraph of Article 17 of the Child Welfare Act may be committed. Nevertheless, the lower court erred by misapprehending the relevant legal doctrine, such as the mistake of the fact that the lower court found the Defendant guilty of the crime

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment, etc.) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts as to the acquittal portion among the defendant's case

The lower court erred by misapprehending the fact that the lower court rejected the victim Nonindicted 2’s reliable statement, etc. and acquitted the Defendant of the facts charged against the victim Nonindicted 2, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The above-mentioned sentence sentenced by the court below is too uneasible and unfair.

(iii)the dismissal of an attachment order;

The judgment of the court below which dismissed the defendant's request for attachment order even if the risk of recidivism is recognized is unfair.

2. Determination on the part of the defendant's case

A. Ex officio determination

1) According to Article 29-3 of the Child Welfare Act (Act No. 15889) that was amended on December 11, 2018 and enforced on June 12, 2019, where a sentence is imposed as “child abuse-related crime,” the court shall simultaneously issue an employment restriction order to prevent the operation of a child-related institution or the employment or actual labor to a child-related institution for a certain period not exceeding 10 years, simultaneously with a judgment in a child abuse-related crime case.

In addition, “child abuse-related crime” under Article 3 subparag. 7-2 of the same Act refers to a child abuse crime under Article 2 subparag. 4 of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes, or a crime falling under any of Articles 250 through 255 of the Criminal Act among crimes of murder under Part II, Chapter XXIV of the Criminal Act with regard to a child abuse crime or a child under Article 2 subparag. 4 of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes, a child abuse crime under Article 2 subparag. 4 of the Act on

However, according to evidence and records, even though it is clear that the defendant is not the guardian of the victim non-indicted 1, the lower court erred by ordering a child-related institution to put an employment restriction order against the defendant, who cannot be deemed to have committed a crime related to child abuse. Furthermore, an employment restriction order under the above amended provisions is an incidental disposition that declares simultaneously with a conviction of a sex offense case, and the judgment of the lower court did not err in the remaining part of the conviction portion, and the entire conviction portion of the judgment of the lower court has to be reversed (see Supreme Court Decision 2016Do1822, Jan.

2) Meanwhile, according to the indictment, the prosecutor stated in the applicable provisions of law “Article 71(1)1-2 and Article 17 subparag. 2 of the Child Welfare Act” and stated in the facts charged and the facts constituting the cause of the request for attachment order, thereby clearly prosecuted the Defendant as having committed sexual abuse prohibited under Article 17 subparag. 2 of the Child Welfare Act.

Nevertheless, the court below applied Article 17 subparag. 5 of the Child Welfare Act (Article 17 subparag. 5 of the Child Welfare Act) in the "Application of the Act and its subordinate statutes", and applied Article 17 subparag. 5 of the same Act (Article 17 subparag. 5 of the same Act). The court below erred in the misapprehension of law and its judgment.

3) In addition, comprehensively taking account of the applicable provisions of the indictment and the facts charged, the public prosecutor is clear that he/she has been prosecuted for the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by force in relation to relatives) in relation to each of the violations of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (in relation to relatives), but the court below applied the special Act on the Punishment, etc. of Sexual Crimes (in relation to minor under thirteen years of age) as an ordinary concurrence only for the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (in relation to minor under thirteen years of age) as stated in the judgment of the court below. In addition, the court below erred in the misapprehension of the law,

4) However, even if the judgment of the court below has the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles and the prosecutor's assertion of misunderstanding of facts is still subject to the judgment

B. Judgment on the Defendant’s misunderstanding of facts or misapprehension of legal principles

The defendant's defense counsel asserts that "child abuse" in subparagraph 7 of Article 3 of the Child Welfare Act means doing harm to the health or welfare of an adult child, or physical, mental, or sexual violence or cruel acts that may impede the normal development of a child, including his/her guardian, and abandoning or neglecting the child by his/her protector," which is defined as "the act of abuse" as prohibited under each subparagraph of Article 17 of the Child Welfare Act, is premised on the premise that the perpetrator is an adult.

However, it is difficult to find a grammatic, logical, and historical basis to interpret “child abuse” prohibited under each subparagraph of Article 17 of the Child Welfare Act as “child abuse” defined in Article 3 subparag. 7 of the same Act. Rather, Article 17 of the same Act provides that no person shall commit any prohibited act under each subparagraph of the same Act, and it can be said that the offender is not limited to adults.

Therefore, the Defendant’s ground of appeal on this part is difficult to accept.

C. Judgment on the prosecutor's assertion of mistake of facts (not guilty part)

1) Summary of the facts charged

The defendant is the victim non-indicted 2 (Taking part, 8 years old at that time) and the defendant was in a private village.

On January 2018, the Defendant was able to write down the sound of the victim's clothes in the front side of the victim who was living in the inside room in the Gyeonggi-si, which is the domicile of the first patrolman.

Accordingly, the Defendant committed sexual abuse, which, at the same time, led the victim under the age of 13 who was in a state of failing to resist due to sleep, and at the same time led the child to feel sexual humiliation.

2) The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly adopted and examined: (a) the victim’s statement on the before and after the indecent act was committed and the offender’s criminal conduct, etc. at the time of the indecent act; (b) the possibility that other criminals exist cannot be ruled out; (c) the statement made by Nonindicted Party 1’s investigative agency (the victim’s statement on the victim’s statement) as the criminal offender is unclear; and (iv) the statement analysis of Nonindicted Party 3’s statement also cannot be deemed as supporting the victim’s indecent act, on the ground that the evidence submitted by the prosecutor alone cannot be deemed as proven to the extent that there is no reasonable doubt as to the fact that the Defendant committed indecent act by force, the lower court acquitted the Defendant of this part of the facts charged (guilty of the order).

3) Determination of the immediate deliberation

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value that leads a judge to have no reasonable doubt. As such, in a case where the prosecutor’s proof does not sufficiently reach the extent of having the aforementioned conviction, even if there is a doubt of guilt, such as the defendant’s assertion or defense contradictoryly or unfortunately unfortunately unfortunateed suspicion (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 2011).

Examining the above circumstances in light of the above legal principles in comparison with the evidence and records duly adopted and examined by the court below, the court below’s determination of not guilty of this part of the facts charged is just and acceptable, and it cannot be said that there were errors by misapprehending the facts alleged by the prosecutor.

This part of the appeal by the prosecutor is without merit.

3. Determination as to the prosecutor’s assertion on the part of the claim for attachment order

A. Relevant legal principles

The risk of repeating a sexual crime as prescribed by Article 5(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that there is a lack of possibility of repeating the crime. The risk of recidivism of a sexual crime means that there is a considerable probability that the person subject to a request to attach an order to an electronic device would injure the legal peace by committing a sexual crime again in the future. The existence of the risk of repeating a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to a request to attach an electronic device, the criminal conduct before the crime is committed, the motive, means, circumstances after the crime is committed, the situation after the crime is committed, and the determination shall be based on the time of the judgment (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9,

B. The judgment of the court below

The lower court determined that it is difficult to readily conclude that the materials submitted by the prosecutor alone are likely to recommit the Defendant again commit a sex crime in the future, taking account of the following: (a) the Defendant has no history of punishment for a sex crime; (b) the Defendant has no history of criminal punishment; (c) the Defendant has a somewhat distorted sexual belief through the instant crime; and (d) the Defendant has character and conduct verified; (c) the Defendant is likely to have been sentenced to imprisonment, 40 hours’ program completion; and (d) the Defendant’s employment restriction order and family relationship for the five years.

C. Judgment of the court below

Examining the evidence legitimately adopted and examined by the court below in a thorough comparison with the various circumstances based on the judgment, the judgment of the court below on the risk of re-offending is justified.

Therefore, this part of the prosecutor's argument cannot be accepted.

4. Conclusion

Therefore, among the judgment below, the guilty part of the defendant's case is subject to an ex officio reversal, and under Article 9 (5) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the judgment of the court below on the request for attachment order must be sentenced simultaneously with the judgment of the defendant's case. Thus, in a case where the part of the defendant's case is reversed, the part of the case for the request for attachment order which should be tried and sentenced simultaneously with the judgment of the court below should also be reversed (see Supreme Court Decision 2011Do453, 2011Do12, April 14, 201, etc.). Thus, without examining the judgment on the grounds of unfair sentencing by the defendant and prosecutor, Article 364 (2) of the Criminal Procedure Act, Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the part of the judgment below's request for the guilty part of the defendant's case among the judgment below is reversed, and the judgment is dismissed as per Disposition under Article 364 (4) of the Criminal Procedure Act.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is identical to each corresponding column of the judgment of the court below, and thus, it is quoted 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 7 (4) and (2) 2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 299 (a quasi-similar act to minors under the age of 13) of the Criminal Act, Article 5 (3) and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 299 (a quasi-indecent act by quasi-indecent act by blood) of the Criminal Act, Article 7 (4) and (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 29 (a quasi-indecent act by blood against minors under the age of 13) of the Criminal Act, Article 71 (1) 1-2 and Article 17 subparagraph 2 (a) of the former Child Welfare Act (amended by Act No. 14925, Oct. 24, 2017); Article 71 (1) 1-2 and 17 (2) through (3) of the Child Welfare Act.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes under the age of 13) and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes) and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and the Violation of Child Welfare (the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes under the age of 13)

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (referring to the act of minor quasi-incompetent under thirteen years of age)]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

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. An employment restriction order;

(a) Institutions, etc. related to children and juveniles;

1) Paragraphs 1 and 2 of the holding

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); the main text of Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018)

2) Paragraphs 3 and 4 of the holding

The main sentence of Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

(b) Welfare facilities for disabled;

Article 2 of the Addenda to Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018); 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;

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’s age, occupation, risk of repeating a crime, motive, method, consequence and seriousness of the crime in this case, the degree and expected side effects of the Defendant’s disadvantage due to the disclosure order or notification order, the preventive effect and effect of sexual crime subject to registration which may be achieved therefrom, the protection effect of the victim, etc., shall be comprehensively considered, and the Defendant shall not be ordered to disclose or notify the personal information of the Defendant. Thus, the disclosure or notification order shall not be issued to the Defendant).

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for three years and six months to twenty-two years; and

2. The scope of the recommended sentencing criteria according to the sentencing criteria: The sentencing criteria do not apply to the ordinary concurrent crimes because they do not have the criteria for dealing with them, but they refer as appropriate to the sentencing criteria for the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor quasi-incompetent act under the age of 13) with the largest sentence:

(a) Crimes 1, 2 and 3: Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a minor, quasi-incompetent act under 13 years of age);

d. A sex offense subject to the age of less than 13 (Type 4).

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Recommendation and Scope of Recommendations] Reduction Area, 4 years to 7 years

(b) Scope of recommendations according to the standards for handling multiple crimes: From 4 years to 12 years (the upper limit of crimes 7 years) + the upper limit of crimes 1/2 ( March 6) + the upper limit of crimes 1/3 ( February 4) of the upper limit of crimes 3];

3. Determination of sentence;

(a) favorable circumstances;

In the past, the defendant is recognized as a substitute for the crime and shows an attitude against the defendant.

The victim expresses his/her intention that he/she does not want to punish the accused.

The Defendant is an initial offender who had no criminal record prior to the instant case.

The parents and relatives of the defendant want to observe and guide the defendant so that they do not repeat the crime based on the relationship with the defendant in the future.

B. Unfavorable circumstances

However, the crime of this case was committed by the victim, who is only the first school student, who committed a quasi-similar act several times and commits an indecent act against the victim. It is not good that the criminal liability is heavy in light of the relationship between the defendant and the victim, the degree of indecent act and the part.

A victim who had been at the time to normally form a sound sexual identity and values seems to have suffered from mental impulses and pain that it is difficult to recover together with a sense of sexual humiliation due to the instant crime.

(c) the integration and connection;

In full view of the aforementioned factors of sentencing and the Defendant’s age, character and conduct, intelligence and environment, criminal records, motive and background leading to the instant crime, the means and consequence of the instant crime, various circumstances revealed in pleadings, such as the circumstances after the commission of the crime, etc., the statutory punishment for the crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with the most severe punishment (a prison term of not less than seven years), the scope of the statutory punishment (a term of imprisonment between June and June 22), the scope of the recommended punishment to be referred to in the sentencing guidelines (a term of four years to October) and the scope of the recommended punishment to be referred to in the sentencing guidelines (a term of four years to December).

Judgment on the Request for Attachment Orders

As seen in paragraph (3) above, the prosecutor's request for attachment order is dismissed in accordance with Article 9 (4) 1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders as it is difficult to recognize that the person subject to the request for attachment order has a risk of recidivism of sexual crimes to the extent that it is necessary to order the person subject to attachment order to attach an electronic

Registration and submission of personal information;

When a judgment of conviction is confirmed on the crime in the judgment, the defendant constitutes a person subject to registration of personal information pursuant to the main sentence of Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and is obliged to submit personal information to the competent agency pursuant to Article 43

A case name: Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor or quasi-sexual act under the age of 13), Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a quasi-indecent act in relation to relatives), Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

Judges Orn-si (Presiding Judge)

(1) According to the established rules on the name of the crime to be stated in the indictment and in the non-prosecution of indictment, the name of the crime in this part of the facts charged ought to be “Violation of the Child Welfare Act (voluntary coercion, intermediary, sexual harassment, etc. of a child).” However, pursuant to Article 19(3) of the Rules on the Handling of Court Trial Affairs, the case number and case name initially attached to the case shall be used to the subordinate country, and the case name may be corrected with the permission of the presiding judge until the subordinate country of the first instance, if it is obvious that the case name was erroneous. Thus, the case name cannot be corrected in the appellate trial, which is the appellate court, and thus, the original case name shall

2) In the first instance, the public prosecutor re-verificationed this purport (see, e.g., the second public trial protocol).

Note 3) The crime of violation of subparagraphs 2 and 5 of the same Article is different from the statutory punishment, and even though subparagraph 5 of the same Article prohibits not only physical abuse but also emotional abuse, the judgment of the court below erred.

4) In the first instance trial, the public prosecutor re-verificationed this purport (see the second public trial date protocol).

(5) The Defendant’s defense counsel stated to the effect that the facts alleged in the lower court were fully recognized in the trial (the second page of the Reasons for Appeal).

6) Notwithstanding the Defendant’s consent, the investigation report containing the Defendant’s response as a result of the examination of the false speech detection devices was denied the admissibility of evidence, and it can be evaluated as a justifiable judgment in light of the relevant legal principles and the relationship of evidence.