Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A defendant shall be punished by imprisonment for three years.

except that the execution of the above sentence shall be suspended for four years from the date this judgment became final and conclusive.

Probation shall be ordered to the accused, to attend the sexual assault therapy for 40 hours, and to provide community service for 200 hours.

The defendant shall be ordered to place employment restrictions (including the prohibition of operation and actual labor provision) in institutions, etc. related to children and juveniles and welfare facilities for persons with disabilities for three years.

The punishment of the lower court (three years of imprisonment, etc.) is too unreasonable.

2. Ex officio determination

On February 5, 2020, the Defendant, at the Incheon District Court, sentenced 10 months of imprisonment with prison labor for a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse and appealed the above judgment. However, on September 18, 2020, the Defendant was sentenced to dismissal of appeal by the same court, and the above judgment became final and conclusive around that time.

Since each crime in the holding of the court below is a concurrent crime between the above crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse and the latter part of Article 37 of the Criminal Act, the judgment below cannot be maintained as it is.

3. Conclusion

The judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of the above ex officio reversal.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of the facts charged by this court and the evidence related thereto are as follows: "The defendant was sentenced to 10 months of imprisonment on February 5, 2020 by the Incheon District Court for the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Coercive Conduct, etc.). However, on September 18, 2020, the above judgment became final and conclusive at that time" was added to all the facts constituting the crime of the judgment of the court below, with the exception of adding "the text of the judgment (Seoul District Court 2019Da7067)," "the summary of the evidence" as stated in the corresponding column of the judgment of the court below, and it is also cited as it is 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(6), (5), and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the attempted crime of sexual intercourse by force and the choice of limited imprisonment), Article 5-9(2) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 257(1) of the Criminal Act (the crime of inflicting bodily injury upon the purpose of return)

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed by the Act on the Protection of Children and Juveniles against Sexual Abuse, which is heavier in penalty]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act ( considered as favorable circumstances as seen earlier)

1. Suspension of execution;

The main sentence of Article 62(1) of the Criminal Act (As mentioned above, repeated normal consideration)

1. The main sentence of Article 21 (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse and Article 21 (4) of the said Act;

1. Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or notify, and the proviso to Article 49(1) and the proviso to Article 50(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 16622, Nov. 26, 2019) (limited to the criminal records of the accused, it is difficult to readily conclude that the accused has a risk of sexual assault and recidivism, solely on the basis of the criminal records of the accused, the effect of preventing recidivism can be limited to the following:

In addition, in full view of the overall circumstances such as the disadvantages and expected side effects of the defendant's inflows due to the disclosure order and notification order, the defendant's age, occupation, family environment, social relationship, and motive, means, and results of the crime in this case, there is a special circumstance that the defendant's personal information shall not be disclosed or notified.

1. An employment restriction order;

Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 17338, Jun. 2, 2020); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 1738, Nov. 26, 2019);

The main text of Article 59-3(1) of the Welfare of Disabled Persons Act

Reasons for sentencing

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

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

Article 37 of the Criminal Code does not apply to the sentencing criteria because they fall under latter concurrent crimes

3. Determination of sentence;

In light of the relationship between the Defendant and the victim, the degree and part of the assault, and the motive for the instant crime, etc., the victim seems to have suffered considerable mental pain due to the instant crime. Furthermore, even though the instant court rendered a ruling on release on bail to protect the honor of the Defendant, the Defendant’s attitude at the trial is not good, as it was up to the prosecution of the crime of bodily injury and property damage without being convicted during the period of release on bail. Considering the above circumstances, there is room to deem that the lower court’s punishment against the Defendant is excessive.

However, the defendant confessions the crime of this case and is in depth, in particular, the victim expresses his intention not to be punished for the defendant in the trial. This should be considered as an important reason for sentencing, while the defendant has a history of being punished for a sex offense under the Act on the Protection of Children and Juveniles against Sexual Abuse, which is recently finalized, the crime committed by the defendant during the period of release on bail is a minor crime compared to the crime of this case in terms of contents and nature of the crime. The crime of this case is separate from the crime of this case and its criminal trial is currently underway, and the crime of this case is separate from the crime of this case. Thus, the criminal punishment against it is judged to be committed in the procedure concerned, taking into account all the factors of sentencing as shown in the records and arguments of this case, such as age, character and behavior, environment, relationship with the victim, motive, means and result of the crime, etc., and the circumstances after the crime, the punishment shall be determined as ordered by the text of this case.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, 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 of the same

On the other hand, the period of registration of personal information of the defendant is 15 years pursuant to Article 45 (1) 3 and (2) of the same Act. In full view of the above crime and the other crime that causes the registration of personal information, the nature of the crime and severity of the crime, etc., it is judged that the period of registration of personal information of the defendant is no longer necessary to be specified as a short-term period than that according to Article 45 (4) of the same Act. Thus, the period of registration of personal information should not be shortened.

Judge Roster

Judges Song Jae-Gyeong