Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age);

Adult Rape, Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Bans (a minor similar act under the age of 13) and the sexual crime offender

Violation of the Act on Special Cases concerning Punishment, etc. (Rape within Relatives), sexual boms

Violation of the Act on Special Cases concerning the Punishment, etc. of Meritorious Crimes

(Indecent Act by Compulsion)

2017. Consolidated order to attach 2017.

To order the defendant to complete a sexual assault treatment program for 200 hours.

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

The victim D is the natural father of the defendant and the person to whom the attachment order is requested (hereinafter referred to as the "defendants") who have produced between the defendant's wife F.

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

The Defendant: (a) around the day when the date of B/L cannot be known, at the inside of the residence of the Defendant of the first floor of the building located in Seoul Jung-gu G, Jung-gu, Seoul; (b) reported that the victim (the victim (the victim at the time 10 years of age) was locked for himself/herself at the inside of the residence of the Defendant of the first floor of the building located in Jung-gu, Seoul; and (c) took advantage of any gaps other than the victim inside the house, carried out the part of the victim's back to the victim's side by using the cres without any reason other than the victim; and (d) took off the victim's back to the part of the victim's back by his/her hand; and

As a result, the defendant raped a minor victim under the age of 13 who is a blood relative due to the assault, and led the victim not to know the number of days of treatment.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (referring to the act of similar nature to the aged under thirteen years) and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

At around 17:00 on the day when it is impossible to know the day of winter, the Defendant made a statement at the above 17:00, to the effect that the victim (the age of 10 at that time) covers and takes a fluence for him, and that the victim is "I will ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever ever?

Accordingly, the defendant committed an indecent act against a minor victim under 13 years of age due to assault, and at the same time, placed a sexual organ inside the mouth of the victim and similar act.

3. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Minors under thirteen years of age) and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

On April 17, 2017, at around 17:00, the Defendant: (a) taken a victim (at the time, 12 years of age) who was holding the Defendant’s bridge on the Defendant’s bridge at the above-mentioned 1 location; (b) taken a part of the victim’s chest and the part of the victim’s chest and the part; (c) taken off the victim’s chest and the part of the part; and (d) prevented the victim from resisting the victim’s body on the part of the victim’s vessel; and (d) put the victim’s sound into the part of the victim’s body.

Accordingly, the defendant raped a minor victim under 13 years of age who is a blood relative due to assault.

Summary of Evidence

1. Defendant's legal statement;

1. The statement made by the victim D in four copies of a video CD (one time, two times) containing the victim's statement;

1. The police statement concerning F;

1. The counseling record book for the Gu, and the data protection structure map prepared by the victim;

1.Investigation Report, - With respect to the diagnosis and childbirth of the victim, medical opinion

1. Family Register;

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The Defendant, at the time of each of the crimes in this case, was drunk and came to commit each of the above crimes in a state of mental disability.

2. Determination

According to the evidence duly adopted and examined by the court, the fact that the defendant had drinking at the time of the crime under paragraph (1) of the judgment of the court can be recognized. However, even if the defendant had drinking at the time of each of the crimes in this case, Article 10 of the Criminal Act on the Punishment, etc. of Sexual Crimes may not apply to a sexual crime under the mental disorder caused by drinking (Article 20 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes), and in light of the motive and background leading up to each of the crimes in this case, the means and method of the crime, the defendant's speech before and after the crime committed in the victim's statement, and the circumstances after the crime, etc., it is difficult to deem that the defendant lacks the ability to discern things or make decisions due to drinking. Meanwhile, the witness F's testimony at court is about the state of mental and physical disorder at the time of the crime in this case, and concerns about the dispute between the defendant and the witness due to excessive drinking, and about the situation or apprehension of the above witness's defendant.

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

Application of Statutes

1. Article applicable to criminal facts;

Articles 8(1) and 7(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 of the Criminal Act (a point of causing rapes against minors under the age of 13), Articles 8(2) and 5(1) of the Criminal Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 7(2)1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of causing rapes by relatives in relation to relatives), Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of any similarity of minors under the age of 13), Article 7(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297(1) of the Criminal Act (a) of the Criminal Act), Article 5(1) of the Act on Special Cases concerning the Punishment,

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

(a) Punishment provided for in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against minors under the age of 13 who are more severe in punishment, and punishment provided for in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against minors under the age of 13;

(b) Punishment provided for in a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (referring to a similar act to a minor under thirteen years of age) and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with heavy punishment;

(c) Any person who violates the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape of Minors under thirteen years of age) and any violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape between rapes by blood relation, and any violation of the Act on Special Cases concerning the Punishment, etc. of

1. Selection of punishment;

A minor under the age of 13 shall be punished by imprisonment with prison labor for a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.)

Selection of penalty

1. Aggravation for concurrent crimes;

The first sentence of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act, and Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (or Injury resulting from Rape, etc.) shall be applicable to a minor under the age of 13 who is the largest judgment on the punishment of sexual crimes

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for 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. Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes Exempted from the Disclosure Order and Notification Order; 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 criminal punishment previously committed and thus, is difficult to readily conclude that there is a risk of sexual assault or recidivism; the Defendant’s registration of personal information against the Defendant and the completion of sexual assault treatment program can only be said to a certain extent to prevent recidivism; the victim’s child can not be ruled out the possibility that another damage may occur to the victim due to the disclosure and notification of personal information against the Defendant; the effect of the prevention of sexual crimes that can be achieved by the disclosure order and notification order is relatively low compared to the disadvantage and anticipated side effects that the Defendant suffers; and the Defendant’s age, character and behavior, family environment, etc. should not be disclosed and notified.)

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for a period from five years to June 22;

2. Application of the sentencing criteria;

Each criminal facts in the judgment are in a mutually competitive relationship, and the sentencing criteria do not provide a separate processing method for the mutually competitive crimes.

3. Determination of sentence: Seven years of imprisonment;

Although the Defendant is the father who is in a position to educate the victims so that they may have a proper sexual value and protect the victims, the Defendant committed an anti-human sexual assault crime that leads children to the satisfaction of sexual desire by rapeing the victims who are relatives of 10 to 12 years of age, and by forcing them to have a similar act. As a result, the victims seem to have a very great mental and physical suffering. Despite their age, the victims are expected to have a great degree of suffering that is difficult to cure the victims for a considerable period in the future, and it seems that there is a significant negative impact on the formation of the sexual identity and values of the victims. In this regard, the Defendant requires strict punishment corresponding to the relevant criminal liability against the victims.

However, considering the circumstances favorable to the defendant, such as the defendant's age, character and conduct, environment, motive and background of the crime in this case, means and consequence of the crime, the circumstances before and after the crime, etc., as well as various sentencing conditions shown in the arguments in this case, such as the defendant's age, character and conduct, environment, motive and circumstance of the crime in this case, the means and consequence, etc., were comprehensively taken into account, and the intent of the crime in both the victim and his family members was expressed in depth, and there was no history of criminal punishment for the same crime.

Registration of Personal Information

Where a conviction becomes final and conclusive on each crime subject to registration of a sex crime, 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 the defendant is obligated to submit personal information to the competent agency pursuant to Article 43

Judgment on the request for attachment order

1. Summary of request;

As the Defendant committed a sexual crime against a minor under the age of 19 as stated in the judgment, and in full view of the criminal law, the status and career of the Defendant, etc., it is very high risk of recommitting a sexual crime, and thus, it is necessary to issue an order to attach an electronic tracking device to the Defendant.

2. Determination

"Risk of recidivism of a sexual crime" under Article 5 (1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter referred to as the "Act on the Attachment of Electronic Devices") means that the possibility of recidivism is insufficient solely with the possibility of repeating the crime, and it is highly probable that the person subject to an application for an attachment order may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the application for an attachment order, the conduct before and after the crime, the motive, means, circumstances after the crime, and the situation after the crime, etc. (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010).

In light of the above legal principles, it is difficult to readily conclude that the Defendant committed a sexual crime against many and unspecified third parties because it was difficult to view that the Defendant committed a sexual crime against the victim who is her father and wife, and that it is likely to commit a sexual crime again. ③ If the judgment of this case becomes final and conclusive, the Defendant has certain effects on the prevention of recidivism, distorted sexual impulses and personality and behavior edification through life, completion of sexual violence therapy program, personal information registration, etc. ④ In addition, considering the Defendant’s occupation and environment, frequency of the crime, period, means and method of the crime, circumstances, etc., as well as the following circumstances revealed by evidence duly adopted and investigated by this court: (i) the Defendant did not have any history of criminal punishment prior to the crime of this case; (ii) the Defendant’s act of committing a sexual crime against the victim who is her father and wife; and (iii) the Defendant has considerable probability to acknowledge that the Defendant again committed a sexual crime of this case, and there is no evidence to acknowledge it differently.

3. Conclusion

Thus, the request for the attachment order of this case is dismissed in accordance with Article 9 (4) 1 of the Electronic Device Attachment Act on the ground that it is without merit.

It is so decided as per Disposition for the above reasons.

Judges Tae-young

Judicial Chief Judge;