2016Gohap52(Joint), Gong300,00,00

2016 early 258 Orders for compensation

To order the defendant to complete the sexual assault treatment program for 40 hours.

The public information of the accused shall be disclosed through the information and communications network for two years, and the accused shall be notified of the information for two years.

Of the facts charged of this case, the prosecution against assault is dismissed.

An applicant for compensation shall be dismissed.

【Criminal Power】

On April 4, 2014, the Defendant was sentenced to imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (joint conflict) at the Seoul Central District Court, and completed the execution of the sentence on November 6, 2014.

【Criminal Facts】

"2016 Gohap14"

On November 15, 2015, around 15:30 on November 7, 2015, the Defendant accumulated the victim’s c (the age of 62) who takes the floor above the e-mail or the surface of the water located in Geumcheon-gu Seoul Metropolitan Government D, and stored the fingers in the victim’s resistance.

Accordingly, the Defendant committed indecent act against the victim by assault.

"2016, 52"

1. Fraud;

On February 24, 2015, the Defendant: (a) on February 24, 2015, the Defendant was an employee in charge of the loan from the victim mountain loan and loan Co.,, Ltd. (hereinafter “victim Co., Ltd.”) located in Yeongdeungpo-gu Seoul Yeongdeungpo-gu 19-ro 19-ro 18 (hereinafter “Co., Ltd.”); and (b) on the part of the employee in charge of the loan at the Young-gu branch, etc., the Defendant himself is attending the “G located in the area F of Seongdong-gu, Sungnam-gu.” (hereinafter “Co., Ltd.) and said, “The annual income is 15 million won and the salary is 10,000 won and 3 million won are borrowed at the cost of living.” However, the Defendant did not have any property or income and the Defendant did not have any intent or ability to complete the loan even

Accordingly, the defendant deceivings employees in charge of lending the victim company to receive the property of the victim company.

2. Suppression;

(a) Collaboration with victims H;

1) 피고인은 2015년 3월 초순경 서울 영등포구 I에 있는 피해자 H(38세)가 운영하는 피시방에서 게임이 잘 안 된다는 이유로 "씨발. 게임이 왜 이 지랄이야."라고 욕설을 하면서 컴퓨터 본체와 마우스를 집어 던지는 등 행패를 부리고, 피해자가 이를 제지하자 "야 씨발 새끼야. 네가 무슨 상관이야. 내가 돈 꼴았는데 내가 잃은 돈 다 내 놔. 안 그러면 내가 계속 신고해서 여기 문 닫게 할 거야. 우리 식구들 데려와서 진상 부려서 여기 문 닫게 할 거야."라고 말하여 피해자에게 겁을 주었다. 피고인은 그 무렵 이에 겁을 먹은 피해자에게서 시가 40만 원 상당 게임머니(속칭 '뽀찌')를 충전받고 피해자가 피시방 이용료를 받는 것을 포기하게 하였다.

Accordingly, the defendant acquired property benefits by threatening the victim.

2) In March 2015, the Defendant: (a) carried the victim fright at the place specified in the preceding paragraph in the preceding paragraph at the place; and (b) around that time, the victim frighted with 300,000 won at the market price and waived the charge for the use of the fright at the time.

Accordingly, the defendant acquired property benefits by threatening the victim.

(b) Collaboration with the victim J;

Around 02:00 on June 19, 2015, the Defendant her J (Woo, 53 years of age) expressed an desire to control L, an employee, while playing a game in the place of other customers at the skin operated by Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, (hereinafter “the Defendant”) and her cryp, “I am hyp. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h. h.).

Accordingly, the defendant was given property by threatening the victim.

(c) Assaulting victims M;

피고인은 2015. 6. 23. 22:00경 ~ 24:00경 서울 영등포구 N에 있는 피해자 M(55세)이 운영하는 피시방에서 피해자에게 "야. 알 넣어라."라고 반말을 하면서 시비를 걸다가 갑자기 마우스를 집어 던지고 주먹으로 키보드를 내리치는 등 행패를 부렸다. 피고인은 피해자로부터 나가달라는 요구를 받자 "내가 잃은 게 있는데 그냥은 못 간다. 내가 잃은 돈을 다 내놔라.", "지금 당장 뽀찌를 넣어라. 안 그러면 여기 장사 못 하게 하겠다. 내가 매일 신고할 거다. 세 번 이상 신고되면 질서계에서 단속하는 것 알지. 가게 문 닫을 줄 알아라."라고 말하여 피해자에게 겁을 주었다. 피고인은 그 무렵 이에 겁을 먹은 피해자에게서 2회에 걸쳐 시가 35만 원 상당 게임머니를 충전받고 피해자가 피시방 이용료를 받는 것을 포기하게 하였다.

Accordingly, the defendant acquired property benefits by threatening the victim.

3. Interference with business;

피고인은 2015. 6. 20, 19:30경 ~ 21:30경 피해자 O(여, 47세)가 근무하는 제2의 다.항 기재 피시방에서 "아 씨발. 뭐 이런 기계를 갖다 놓고 장사를 해."라면서 고함을 치고 마우스를 집어 던지는 등 소란을 피웠다. 피고인은 피해자로부터 나가달라는 요구를 받자 "씨발 년아. 내가 돈 주는데 네가 왜 나가라는 말을 하냐."라고 욕설을 하면서 손을 들어 피해자를 때리려고 하고 피해자가 이를 피하자 "이게 배짱이 좋구먼. 내가 여기 가게 문 닫아 버릴 거야. 매일 신고할 거야. 3번 이상 신고가 들어가면 단속당하는 것 알지. 계속 장사하나 두고 보자."라고 말하면서 계속하여 소리를 지르고 키보드와 모니터를 집어 던졌다.

Accordingly, the defendant interfered with the victim's management by force.

Summary of Evidence

【Criminal Facts in the Market】

"2016 Gohap14"

1. C’s legal statement;

1. On-site observation devices (CCTV) video screeners;

1. Investigation report (related to the statement ofCCTV and its staff members)

[The statement of the victim is consistent and concrete in relation to the defendant's act, content of damage, the fear and response of the victim, and the situation before and after the commission of the crime. The defendant's behavior is consistent with the victim's statement, and is consistent with the victim's behavior in line with the victim's statement. The defendant's behavior in line with the victim's statement does not seem to be the form of a person who commits an indecent act first committed an indecent act against the victim, after the crime was taken in the E-Sale or the entrance calculating room and the situation observation devices (CCTV). (1) The defendant's appearance (i) the defendant's appearance, e-mail or out of the new place where the defendant takes clothes from the new place, and puts the victim's body, and (ii) the victim's appearance is 10 minutes where the victim was knek for the victim's new appearance, and the victim's behavior in line with the victim's statement. There is no circumstance to regard the victim's statement as false and credibility in light of court attitude

"2016, 52"

1. Defendant's legal statement;

1. Each police record statement of J, L, M, P,O, and Q;

1. A H statement;

1. A complaint;

【Criminal Power at the Time of Sales】

1. Status of criminal records, etc. inquiry reports, investigation reports, and acceptance status of individual inmates;

Application of Statutes

1. Relevant laws and the choice of punishment for the crime;

Article 298 of the Criminal Act, Article 347(1) of the Criminal Act, Article 350(1) of the Criminal Act, Article 350(1) of the Criminal Act, Article 314(1) of the Criminal Act, Article 314(1) of the Criminal Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment of concurrent crimes against a victim H with the largest punishment and offense)

1. Order to complete programs;

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

1. An order for disclosure or notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Dismissal of application for compensation;

Articles 32(1)3 and 32(2) and 25(3)3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings ( inappropriate to issue an order for compensation as the scope of liability of the accused is unclear)

Reasons for sentencing

1. Scope of sentence sentenced by law: Imprisonment with prison labor for not less than one month but not more than 30 years;

2. Application of the sentencing criteria;

(a) First offence (each offence) 1;

[Determination of Punishment] Type 1 (less than 30 million won) for General Promises

[Special Convicts] Reductions: Non-Punishments

Aggravations: Where the Criminal Code is very poor, a repeated crime of the same kind;

[Determination of Recommendation Area] Aggravation

[Scope of Recommendation] Imprisonment with prison labor for not less than ten months but not more than two years and six months

(b) Second crime (Interference with business).

[Determination of Types] 1 (Interference with Business) interference;

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Imprisonment with prison labor for not less than six months but not more than one year and six months

(c) A third crime;

[Determination of Type 1] Crimes of Indecent Act by Indecent Acts (the objects of 13 years of age or older) on the General Standards for Sexual Crimes

[Special Convicts] Reductions: Non-Punishments

[Determination of the Recommendation Area] Reduction Area

[Scope of Recommendation] Imprisonment with prison labor for not less than one month but not more than one year

(d) A 4-off crime;

[Determination of Punishment] General Fraud (less than KRW 100,00)

[Special Convicts] Reductions: Non-Punishments

[Determination of the Recommendation Area] Reduction Area

[Scope of Recommendation] Imprisonment with prison labor for not less than one month but not more than one year

(e) Results of the aggravation of multiple crimes (the maximum of crimes 1 + the maximum of crimes 1/2 + the maximum of crimes 1/3).

[Scope of Final Sentence] Imprisonment with prison labor of not less than 10 months but not more than 3 years and 7 months;

3. Determination of sentence: Imprisonment with prison labor for a year and six months;

The Defendant committed a fraud against the victim company within four months after the execution of punishment was completed due to the commission of the crime recorded in the records of the crime record in the judgment. The Defendant produced a bad character and behavior, and interfered with the victim’s duties. Although there is no economic loss to the victims of the crime of fraud and extortion, and the victim did not want punishment by mutual consent with the victims, the Defendant’s crime is very bad.

The defendant also agreed with the victim of the crime of indecent act by compulsion and thus, the victim does not want the punishment of the defendant. However, the defendant has caused severe sexual humiliation to the victim by inserting fingers in the victim's resistance.

The Defendant has been punished 17 times or more, and is currently suffering from hepatitis and liver cell cancer. The above circumstances and the Defendant’s age, character and conduct, environment, motive and circumstance of the crime, and the circumstances after the crime are considered. The punishment shall be determined as ordered by the order.

Registration of Personal Information

Where a conviction becomes final and conclusive with respect to a crime of indecent act by compulsion on a sex offense subject to registration, 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 shall submit personal information to the competent agency

The acquittal portion

1. Summary of the facts charged

The summary of the facts charged concerning similar rape among the facts charged in the instant case is as follows. Around November 15, 2015, around 15:30 on November 7, 2015, the Defendant: (a) accumulated in the side of the victim C, who was accumulated in the floor at Esa or the surface of the water in Geumcheon-gu Seoul Metropolitan Government D; (b) humping the victim, and humping the fingers into the victim’s resistance, and humping

2. Determination

(a) The degree of violence or intimidation in the crime of similar rape;

1) Article 297 of the Criminal Act provides that "a person who, through violence or intimidation, commits an indecent act on another person shall be punished by imprisonment for a limited term of not less than three years" and Article 298 of the Criminal Act provides that "a person who, through violence or intimidation, commits an indecent act on another person shall be punished by imprisonment for not more than ten years or by a fine not exceeding 15 million won." Under such provision, only the insertion between the sexual organs may be punished for the crime of rape, and any similar similar intercourse may not be punished only for the crime of indecent act.

In order to reflect the changed situation of the society and to effectively cope with diversification of sex crimes, the Criminal Code, amended by Act No. 11574 on Dec. 18, 2012, amended by Act No. 11574 on Dec. 18, 2012, newly established similar rape crimes under Article 297-2, stipulated that "any person who, by violence or intimidation, puts his/her sexual organ into the inside of his/her body (excluding sexual organ), such as mouth, anus, etc., or puts his/her finger body (excluding sexual organ), such as fingers, into a sexual organ or anus, was punished by imprisonment for a limited term

At this time, it is problematic how the degree of "Assault or intimidation", which is a constituent element of the crime of similar rape, is related to the crime of rape and the crime of indecent act.

2) The Supreme Court held that “in order to establish the crime of rape, the perpetrator’s assault and intimidation shall be such to make it impossible or considerably difficult to resist the victim’s resistance.” The crime of indecent act by compulsion is established by indecent act by assault or intimidation, and such assault or intimidation should be such an extent that it would be difficult to resist.” This means that the degree of assault or intimidation in the crime of indecent act by compulsion is lower than the degree of assault or intimidation in the crime of rape. This is not the same as the form of rape and indecent act by compulsion, but is considerably different from the degree of legal interest infringed by the victim’s resistance. In general, it can be deemed that the degree of assault or intimidation in the crime of rape and indecent act by compulsion differs from the degree of the victim’s resistance.

Furthermore, the Supreme Court held that “the crime of indecent act by indecent act by indecent act” includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of assault or intimidation, but also the case where the act of assault itself is recognized as an indecent act. In this case, the assault does not necessarily require to suppress the other party’s intent, and inasmuch as there is no need to force force against the other party’s will, the perpetrator’s exercise of force against the other party’s will, regardless of his force.” The purport is that the crime of indecent act by indecent act is established even in the case where the perpetrator makes it difficult to resist by means of assault or intimidation and makes it difficult for the victim to resist and commits indecent act, but also in the case where the so-called

In such an indecent act, due to the nature of the indecent act that happens in a timely manner, the victim’s resistance cannot be originally impossible and the victim’s intent is not threatened. However, in reality, the crime of indecent act by compulsion is established if the act of assault itself constitutes a certain form of exercise of force to such a degree that the victim may feel sexual humiliation or aversion against the victim’s will and feel sexual humiliation or aversion.

3) Based on the aforementioned legal principles, the assault or intimidation of a crime of similar rape prescribed in Article 297-2 of the Criminal Act should be such that it would be so as to make it impossible or considerably difficult to resist the victim due to the assault or intimidation of the crime of rape, and the so-called indecent rape similar to a damp indecent act cannot be punished as a crime of similar rape.

A) The crime of rape stipulated in Article 297 of the Criminal Act and the crime of similar rape stipulated in Article 297-2 of the Criminal Act is premised on the insertion of the act by force. The name of the crime of similar rape was derived from the act of similarity, and the location of the crime of similar rape was stipulated in Article 297-2 of the Criminal Act, the following provisions of the crime of rape.

B) The Criminal Act prescribes the statutory penalty for the crime of rape as imprisonment with prison labor for not less than three years, and the statutory penalty for the crime of indecent act by compulsion, as a fine not exceeding 15 million won. The statutory penalty for the crime of similar rape prescribed by imprisonment with prison labor for more than two years is far more than the statutory penalty for the crime of indecent act by compulsion than the statutory penalty for the crime of rape.

C) Considering the various aspects of the indecent act, there is a possibility that there may be a gap in the punishment if the indecent act is not punished as the crime of indecent act by compulsion. However, the so-called indecent act by compulsion may be punished as the crime of indecent act by compulsion, and there is little possibility that there is little appropriate punishment corresponding to the act of sentence by ten years in the case of punishment as the crime of indecent act by compulsion.

B. Whether the defendant committed violence or intimidation which makes it impossible or considerably difficult to resist the victim.

1) With respect to the Defendant’s act, the victim stated the following in this court:

A) The victim was faced by the body of the victim, and the Defendant was behind the victim’s body. The Defendant was aware of one hand, as rhyd with the victim’s body’s body. The Defendant, with other hand, her her block seems to her block and her block in the port.

B) The Defendant did not assault or threaten the victim before the victim met.

2) Even based on the evidence submitted by the prosecutor, including the statement of the victim, it is difficult to view that the Defendant committed assault or intimidation to the extent that the Defendant would make it impossible or considerably difficult to resist the victim. In this part of the facts charged, it is not revealed that the Defendant committed assault or intimidation to the extent that the Defendant would make it impossible or considerably difficult to resist the victim. The prosecutor appears to have instituted a prosecution for similar rape in relation to this part on the premise that the so-called indecent rape may be punished as a crime of similar rape.

C. Therefore, the charge of similar rape should be pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act, because it constitutes a case where there is no proof of criminal facts. However, inasmuch as the charge of similar rape includes the facts charged of the crime of indecent act by compulsion, and the conviction of indecent act by compulsion within the scope of the same facts charged is

Public Prosecution Rejection Parts

1. Summary of the facts charged

Of the facts charged in the instant case, the summary of the facts charged on assaulting the victim is as follows. On November 15 and 30, 2015, the Defendant received a claim from the victim C for indecent act by compulsion in Ea, Ea, located in Geumcheon-gu Seoul, Geumcheon-gu, Seoul, about November 7, 2015, followed the victim by taking the victim’s her own desire, taking the victim’s care of himself/herself, and committing assaulting the victim when the victim’s head is taken by drinking.

2. Determination

This is a crime falling under Article 260(1) of the Criminal Act, which cannot be prosecuted against the victim’s express intent under Article 260(3) of the Criminal Act. According to the letter of withdrawal of an accusation filed in the record, the victim may recognize the fact that he/she has withdrawn his/her wishing to punish the defendant on April 14, 2016, which is the date the instant indictment was instituted. This part of the prosecution is dismissed in accordance with Article 327(6) of the Criminal Procedure Act.

Judges Kim Byung-jin

Judges Cho Jae-won