Violation of the Protection Act (production and Distribution of obscenity)

(2) The Act on the Protection of Children and Juveniles against Sexual Abuse

Bans (obscenity possession)

(Korean) an order to attach 2015No9 (Joint)

A defendant shall be punished by imprisonment for three years.

except that the execution of the above punishment shall be suspended for five years from the date this judgment becomes final and conclusive.

The probation order shall be issued to the accused, to provide community service for 200 hours and to take lectures in sexual assault treatment for 80 hours.

Seized NAS sets (No. 1), cellular phone (No. 2), and camera (No. 5) shall be confiscated, respectively.

The prosecutor's appeal regarding the part of the judgment below for which attachment order is requested shall be dismissed.

(a) The defendant and the person to whom the attachment order is requested (hereinafter referred to as the "defendant");

The sentence of the lower court (two years of imprisonment, 80 hours of order to complete a sexual assault treatment program, confiscation) is too unreasonable.

(b) Prosecutors;

1) The part of the defendant case

It is unfair that the sentence of the court below is too unfluent, and it is improper to exempt the disclosure or notification order.

2) The part for which the attachment order is requested

It is improper for the court below to dismiss the request for attachment order against the defendant who is dangerous to repeat the crime.

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

A. Determination on the assertion of unreasonable sentencing

We also examine the defendant and prosecutor's allegation of unfair sentencing.

The Defendant’s crime of this case committed not only committed an indecent act against the victims of the ageed sexual self-determination right, but also taken the process by photographing them with pictures or videos, but also brought about risks that unspecified or many users may distort sexual consciousness by posting obscene materials used by children or juveniles in the camera bulletin board on the portal site. Considering the fact that the Defendant’s criminal conduct of this case is highly likely to seriously obstruct the development of sound sexual consciousness in the future, it is inevitable to punish the Defendant with strict liability.

On the other hand, it seems that the defendant's mistake is recognized by the defendant, the defendant's primary offender without the criminal records, the fact that the defendant's family members, relatives, and neighbors have treated the defendant while seeking the defendant's prior action, the circumstance that the defendant experienced the divorce of his parents and was exposed for a long time in an unsound family environment where he had experienced the divorce of his parents, and was exposed for a long time in an unsound like the defendant's criminal act in this case. The defendant voluntarily received psychological counseling due to his variable sexual oriented activity, the defendant deposited a certain amount of money (10 million won) to recover the victim's damage D, the defendant agreed with the victim for the first time more than nine months, the defendant's age, character and behavior, environment, motive or circumstance of the crime, the method and method of the crime, the contents of the crime, etc., and the circumstances after the crime, etc., are not reasonable, and the prosecutor's assertion that the defendant's sentencing was unfair.

B. Determination as to unjust grounds for exemption from disclosure and notification orders

The court below's determination that there are special circumstances that could not disclose or notify the personal information of the defendant, based on the circumstances stated in its holding, is justified.

Therefore, there is no reason to deny the prosecutor's exemption from disclosure and notification order.

3. Judgment on the part of the claim for attachment order

In light of the circumstances stated in its holding, the lower court dismissed the Defendant’s request to attach an attachment order against the Defendant on the ground that it is difficult to deem the Defendant

In light of the records, the above judgment of the court below is just, and there is no error in the prosecutor's assertion. This part of the prosecutor's assertion is without merit.

4. Conclusion

Therefore, the part of the judgment of the court below regarding the defendant's appeal regarding the part of the defendant's case is with merit. Accordingly, the part concerning the defendant's case among the judgment below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the prosecutor's appeal concerning the part concerning the request for attachment order is again decided as follows. Since the prosecutor's appeal concerning the part concerning the request for attachment order is without merit, it is dismissed pursuant to Article 35 of the Act

Criminal facts and summary of evidence

Since the criminal facts of the defendant recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, they are 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;

Articles 305 and 298 of the Criminal Act, Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (as a whole, production and use of obscene materials), Article 11(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse (as a matter of production and use of obscene materials), Article 11(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse (as a matter of display of obscene materials, choice of imprisonment), Article 11(5

1. Aggravation for concurrent crimes;

Articles 37 (former part) and 38 (1) 2 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity) with the largest punishment]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Probation, community service or order to attend lectures;

The main sentence of Article 16 (2) and (4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Registration of Personal Information

Where a conviction of the instant criminal facts is finalized, the Defendant constitutes 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 shall submit personal information to the competent agency pursuant to Article 43(1) of the same

Disclosure and Exemption of Notice Orders

It is difficult to readily conclude that the defendant's social relation is relatively clear and voluntary treatment guidance to the defendant, such as that the defendant's family, relatives, and neighbors who have no record of criminal punishment, is a primary offender with no risk of recommitting a sexual crime. It seems that the execution of punishment determined by the court of the first instance and the order to attend the sexual violence therapy and the registration of personal information against the defendant can have the effect of preventing recidivism of the defendant and protecting children and juveniles from sexual crimes. Furthermore, compared to the effect obtained by the disclosure order or notification order, there is a special circumstance that the defendant should not disclose and notify the defendant's personal information pursuant to the proviso of Articles 49 (1) and 50 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse.

Reasons for sentencing

1. Scope of recommended sentences according to the sentencing criteria;

Since there is no sentencing criteria for the most serious criminal and juvenile crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials), the explanation on the application of sentencing criteria is omitted.

2. Determination of sentence;

Three years of imprisonment, five years of suspended execution, etc.

The sentence against the defendant shall be determined as above in consideration of the various circumstances mentioned above.

Judges Gok-ju

Judges Kim Jong-Gyeong