2018. Before maturity43 (Joint Attachment Orders)

The defendant shall be placed on employment in a child or juvenile-related institution, etc. and welfare facilities for persons with disabilities for five years. The order shall be issued to a person subject to probation for two years, and matters to be observed in the attached Form shall be imposed.

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

【Criminal Power】

On October 15, 2004, the defendant and the respondent for an attachment order (hereinafter referred to as the "defendant") were sentenced to a stay of execution of two-year imprisonment by force at the Seoul Northern District Court for the crime of indecent act by force. On October 10, 2018, the judgment on October 18, 2018 became final and conclusive after being sentenced to a stay of execution of two-year imprisonment by force for the crime of indecent act by force.

【Criminal Facts】

1. Attempted rape;

around August 12, 2018, the Defendant: (a) inducedd the victim D (nive, 54 years of age) and alcohol to the victim’s place of vision after drinking them; (b) was aware of the fact that the victim would go to coffee; (c) moved the victim to F at around 15:14 on the same day; (d) led the victim; (e) opened the victim; (e) opened the victim; (e) opened the victim by pushing the victim into the c restaurant located in Dongdaemun-gu Seoul Metropolitan Government; (e) forced kid the victim; and (e) forced the victim’s finger; and (e) laid down the victim’s panty and sticked the victim’s clothes; and (e) inserted the victim’s finger into the victim’s drinking part of the victim; and (e) attempted to put the victim’s finger into the victim’s finger and continuously inserted the victim’s finger into the victim’s drinking part; and (e) attempted to flee with the victim’s pushed and pushed the Defendant.

2. Larceny;

On August 12, 2018, at the same place as above, the Defendant, at around 15:36, at the same time and at the same time as the preceding paragraph, destroyed the Defendant’s property in total amount of KRW 254,00,00, by taking one Handphone, one Handphone, one transportation card, one wall, etc. among the victim’s possession.

[Fact of Grounds for Probation Orders]

The Defendant had the record of having been punished for a sexual crime as stated in the judgment of the lower court, and again commits the sexual crime of this case while being tried for a sexual crime, and in light of the content of the crime of this case, the character, character and environment of the Defendant, etc., the Defendant is likely to recommit the

Summary of Evidence

1. Defendant's legal statement;

1. Statement of each police statement of D;

1. Investigation report (to attach CCTV images inside the Enbnb and internal photographs of the Fhob);

1. Investigation report (related to a statement that the injured party has requested his/her assistance from the host employer);

1. Investigation report (verification of the position of the Enbror and building photographs);

1. One copy of CCTV CD in the hold of the telecom;

1. Previous convictions in judgment: Criminal records, investigation reports, and investigation reports (verification of the same criminal records as the suspect), and investigation reports (verification during the period of suspended sentence of a suspect);

1. The risk of recidivism of a sexual crime in the judgment: (a) the following circumstances acknowledged by the evidence as seen earlier and the written investigation before the claim are: (b) the Defendant committed the instant sexual crime despite having been convicted of having been committed by the Gwangju District Court due to a sexual crime such as indecent act by compulsion; (c) the Defendant committed the instant sexual crime on the Internet, etc.; (d) the above sexual crime and the instant sexual crime committed against the Defendant, which was under trial; (c) the assessment of the risk of recidivism against the Defendant at a point of 15 points in total; (d) the risk of recidivism at a point of 24 points in total as a result of the assessment of the risk of sexual offender against the Defendant, falls under the intermediate level; (d) the investigator who conducted an investigation before the Defendant’s claim against the Defendant, presented a final opinion that the risk of recidivism is high; and (e) the need for restriction on drinking and drinking treatment related to the Defendant’s environment and character; and (v) the Defendant’s circumstances and circumstances leading up to the instant sexual crime.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 300 and 297 of the Criminal Act (the attempted rape) and Article 329 of the Criminal Act (the occupation of larceny and the choice of imprisonment)

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (mutually between the crimes of the above and the crime of indecent act by compulsion, etc. on which judgment has

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Act (within the extent that the sum of the long-term punishments of both crimes is added to the punishment imposed for attempted rape with heavier punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from disclosure and notification orders, 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 (where a defendant has been subject to criminal punishment for the same kind of crime, there is no record of having been sentenced to criminal punishment, and the defendant's sentence, personal information registration, probation order, and employment restriction order can be seen as having the effect of preventing re-offending. In full view of the defendant's age, character and behavior, environment, motive and consequence of the crime, method and consequence of the disclosure and notification orders, the degree of disadvantage and anticipated side effects of the defendant's injury caused by the disclosure and notification, and the effect of preventing sexual crimes subject to registration and protecting the victim, it is deemed that there are special circumstances where the disclosure and notification of the

1. An employment restriction order;

The main sentence 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); Article 2 of the Addenda to the 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. Probation order and matters to be observed: Article 21-3 (2) and (1), Article 21-2 subparagraph 1, Article 21-4 (1), Article 9-2 (1) 3, 4, and 5 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders subject to probation order and matters to be observed (the probation order shall be issued ex officio, because it is recognized that the request for attachment order is dismissed and the probation is necessary);

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to a defendant on probation and completion of sexual assault treatment programs is imposed due to the matters to be observed, and

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year and six months to 18 years;

2. Scope of recommendations on the sentencing criteria: The sentencing criteria are attempted to commit rape, and thus, the sentencing criteria are not applied, and larceny is in the latter concurrent relationship of Article 37 of the Criminal Act with the crime of indecent act by compulsion, etc. on the judgment that became final.

3. Determination of sentence: Imprisonment for 2 years; and

The crime of this case is committed by the Defendant, who is leading the victim to rape, and the victim escaped with the body of the victim, and stolen property while the victim escaped, and in light of the circumstances and details of the crime, the nature of the crime is very bad. The victim is punished against the Defendant. The Defendant was indicted for sexual crimes, etc. and was tried to commit the crime of this case. Therefore, it is inevitable to punish the Defendant.

However, considering the circumstances favorable to the defendant, such as the fact that the defendant recognized his mistake and reflects, the fact that there is no record of having been sentenced to the defendant's punishment, and the fact that equity should be taken into account when the judgment is rendered simultaneously with the crime of indecent act by compulsion, etc., the punishment as ordered shall be determined by comprehensively taking into account the defendant's age, occupation, character and conduct, family relation, motive and circumstance of the crime, means and consequence, circumstances after the crime, etc.

Registration and submission of personal information

Where a conviction on a crime of attempted rape is finalized, 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 Act.

Meanwhile, the registration period of personal information of Defendant is 15 years in accordance with Article 45(1)3 and (2) of the same Act. In full view of the crime of attempted rape which causes the registration of personal information and the crime of larceny, the nature of the crime and seriousness of the criminal justice, etc., the registration period of personal information in this case is deemed unnecessary to be more short-term period than that according to the sentence pursuant to Article 45(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Thus, the registration period of personal information should not be shortened.

Judgment on the request for attachment order

1. Summary of request;

In light of the fact that the Defendant committed the instant crime even though he/she had the record of committing a sexual crime two or more times as stated in the record of the crime, and the content and circumstances of the instant crime, the character and conduct of the Defendant, environment, etc., the Defendant is highly likely to recommit a sexual crime as a person recognized as a sexual crime.

2. Determination

A. The risk of recidivism of a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is insufficient enough to repeat the crime. The risk of recidivism of a sexual crime refers to a probable probability that the person subject to the request to attach an electronic tracking device 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 request to attach an electronic tracking device, the motive, means, circumstances after the crime, and outline of the crime. Such determination shall be based on the time of the judgment inasmuch as it is a constructive determination in the future (see, e.g., Supreme Court Decision 2010Do7410, 2010Do4444, Dec. 9, 2010). Moreover, the risk of recidivism of an electronic tracking device, as well as the degree of physical freedom and privacy, need to be more strict than the case where the electronic tracking device is subject to probation order.

B. In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, Defendant’s age, background of crime, means and method of crime, etc., it is difficult to readily conclude that the evidence submitted by the prosecutor alone is likely to recommit sexual crimes again in the future to the extent that the attachment of an electronic tracking device is necessary, in addition to ordering the Defendant to be put on probation after

1) Although the Defendant had been punished twice due to the crime of bodily injury resulting from sexual assault, indecent act by compulsion, etc., there are somewhat differences in the crime of this case and the nature of the crime or the method of the crime, and the crime of bodily injury resulting from indecent act by compulsion is the crime committed 15 years prior

2) As a result of the evaluation of the degree of risk of sexual offenders in Korea (KSORAS) against the Defendant, the risk of recidivism was assessed at the level of 'high', but it belongs to the lower level in the relevant section (13-29 points), and as a result, the risk of recidivism due to the qualitative characteristics of mental illness was assessed at the level of 'interim'.

3) The sentence imposed on the Defendant, the registration of personal information, restrictions on employment, and probation order alone seems to have considerable effect on the prevention of recidivism and the correction of character and behavior of the Defendant.

4) The Defendant holds and lowers a large driver’s license, and maintains a normal occupation, such as providing a vehicle consignment engineer service at night, and performing a proxy driver service at night.

3. Conclusion

Therefore, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Judge Song In-bok

Judges Park Tae-soo