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

Violation (Indecent Act by indecent act in relation of relatives)

[Defendant-Appellant]

Judgment

The punishment of the accused shall be four years of imprisonment.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

For the accused, an employment restriction shall be issued to the child and juvenile-related institutions, etc. and the child-related institutions and welfare facilities for the disabled for three years.

A. Error of mistake

Although the Defendant committed an indecent act committed against the victim’s her mbuck, bucks, chests, or the Defendant’s sexual organ by drinking the victim’s muck, or by leaving the victim’s sexual organ, the Defendant committed an indecent act committed against the victim’s muck, the Defendant was guilty of all facts charged on the basis of the victim’s police statement without credibility, and thus, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (five years of imprisonment, 80 hours of order to complete a sexual assault treatment program) is too unreasonable.

2. Ex officio determination

Article 29-3(1) of the Child Welfare Act (amended by Act No. 15889, Dec. 11, 2018; Act No. 15889, Dec. 11, 2018) stipulates that a person, who was sentenced to punishment or medical treatment and custody for committing a crime related to child abuse, is unable to operate a child-related institution or provide employment or actual labor to a child-related institution, and uniformly stipulates that the period during which it is not possible to provide its operation, employment or actual labor (hereinafter referred to as

However, Article 29-3(1) of the Child Welfare Act (amended by Act No. 1589, Dec. 11, 2018; effective June 12, 2019; hereinafter referred to as the "Child Welfare Act") provides that where a court declares a sentence of imprisonment or medical treatment and custody for a child abuse-related crime, it shall order a child-related institution to operate the child-related institution during the employment restriction period or to provide employment or actual labor to the child-related institution (hereinafter referred to as the "order for employment restriction") at the same time as the judgment of the case related to the child abuse-related crime: Provided, That where the risk of recidivism is considerably low or any special circumstance that does not restrict employment exists, the employment restriction period may not exceed 10 years. Article 29-3 of the Child Welfare Act (amended by the Child Welfare Act, Dec. 11, 2018) provides that the amended provisions of Article 29-3 of the Child Welfare Act provide that the person related to the child abuse-related crime shall also be applied before this Act enters into force.

The facts charged in the instant case constitute a child abuse-related crime (Article 3 subparag. 7-2(a) of the Child Welfare Act and Article 2 subparag. 4(m) and (f) of the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes) and sentenced to a guilty sentence, it is necessary to deliberate and decide whether to issue an employment restriction order at the same time with the judgment on the period of employment restriction pursuant to Article 29-3(1) of the Child Welfare Act, and thus, the lower judgment cannot be maintained.

Although there is a ground for ex officio reversal, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court.

3. Judgment on the defendant's assertion of mistake of facts

The court below rejected the defendant's assertion in detail under the title "a judgment on the defendant's assertion" as stated in this part of the grounds for appeal, and rejected the above assertion in detail.

In light of the following circumstances acknowledged by the lower court’s duly admitted and investigated evidence, the victim was present at the court, namely, that is, there was no fact that the victim took her hand over at the time of this case’s lawful adoption or investigation. The victim was aware that he/she entered the victim’s 4th anniversary of the victim’s testimony at the time of his/her testimony and that he/she did not have his/her body at the time of his/her oral statement, and that the victim’s statement was not entered into the victim’s 4th anniversary of the victim’s 6th anniversary of the fact that he/she did not appear to have been aware of the victim’s 4th anniversary of the fact that he/she did not appear to have his/her hand over the victim’s testimony at the time of his/her testimony. However, the victim’s statement to the effect that the victim’s 5th anniversary of this case’s 6th anniversary of the fact that he/she was not a witness at the time of his/her initial testimony.

This part of the defendant's assertion is without merit.

4. Conclusion

The judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of ex officio reversal, and the judgment below is again ruled as follows.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

The summary of facts constituting an offense and evidence recognized by this court is the same as that of the judgment of the court below, and thus, 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;

Article 7(5) and (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 298 of the Criminal Act (a indecent act against a minor under the age of 13 by force), Article 7(5) and 7(2)2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a similar act to a minor under the age of 13 by force), Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a indecent act by force by blood relationship)

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Articles 38 (1) 2 and 50 (Aggravation of concurrent Crimes with Punishment and Punishment) of the Criminal Act (Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by Minor, etc. under thirteen years of age) around April 2017 with the largest penalty and penalty)

1. Discretionary mitigation (The following extenuating circumstances among the reasons for sentencing):

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

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. Exemption from an order for disclosure or notification;

In full view of the proviso of Article 49(1) and the proviso of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that the defendant has no same history for the defendant, the crime of this case is not against many unspecified persons; the sentence of the defendant, the registration of personal information, the order of the defendant, the order to complete sexual assault treatment programs, the restriction on employment, etc.; the defendant's personal information is likely to be disclosed if disclosed in light of the relation between the defendant and the victim; the defendant's age, family environment; the process and result of the crime of this case; the degree of disadvantage and anticipated side effects of the defendant's suffering due to disclosure and notification order; the prevention effect of sexual crimes subject to registration; and the effect of protecting the victim, it is deemed that there are special circumstances that the disclosure and notification of the defendant's personal information should not be disclosed or notified).

1. An employment restriction order;

Article 56(1) proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); Article 56(1) main sentence of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018); Article 2(1) of the Addenda to the Child Welfare Act (Amended by Act No. 15889, Dec. 11, 2018); Article 2 of the Child Welfare Act (excluding subparagraph 23); Article 59-3(1) main sentence of Article 59-3(1) of the Act on Welfare of Persons with Disabilities

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment with prison labor for a period of three years and six months to twenty-two years and six months;

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

(a) First offense (Indecent Act in Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes) ;

d. A sex offense subject to the age of less than 13 (Type 4).

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Recommendation and Scope of Recommendations] Reduction Area, 4 years to 7 years

(b) Second crime (Indecent Act such as Minor, Minor, etc. under thirteen years of age);

d. A sex offense subject to the age of less than 13 (Type 4).

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Recommendation and Scope of Recommendations] Reduction Area, 4 years to 7 years

(c) Third offense (Indecent Act such as Minor, Minor, etc. under thirteen years of age);

d. A sex offense subject to the age of 13 [Type 3] and indecent act by force.

[Special Convictd Persons] Reductions: Non-Mitigation of Punishment

[Recommendation and Scope of Recommendations] Reduction Area, 2 years and 6 months to 5 years

(d) Scope of recommendations according to the standards for handling multiple crimes: From 4 years to 12 years [the maximum limit of crimes in Type 1 + the maximum limit of crimes in Type 2 + 1/2 (3 years and 6 months) + 1/3 (1 year and 8 months) of the maximum limit of crimes in Type 3];

3. Determination of sentence: Four years of imprisonment; and

Although the defendant is responsible for raising and protecting the victim who is a shelshel's father in a sound manner, he/she committed similar rape or indecent act by force for several years by taking advantage of circumstances where it is difficult for the victim to cope with or resist the victim's sexual violence, and even during the trial proceedings of this case, the victim's act of indecent act by force was committed by force, and the crime was not very good in light of the circumstances, contents, method, etc. of the crime of this case, and the victim's age was already suffering from considerable physical and mental shock and pain due to each crime of this case, and there seems to be necessary considerable time and effort to overcome any confusion in sexual values and cure the situation. Nevertheless, even though the defendant denies part of the crime up to now, it cannot be deemed that the defendant has divided his/her own mistake with the victim's wife and the victim's shym S or the victim's financial dependence on himself/herself, and attempted to reverse the victim's statement during the trial proceedings of this case, etc.

However, the fact that the defendant has no criminal history and the victim expressed his/her intention not to punish the defendant in this court is favorable to the defendant.

The sentence shall be determined as per the Disposition, comprehensively taking into account the above circumstances and the various sentencing conditions shown in the trial process of the instant case.

Registration and submission of personal information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, 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

Judges in the appellate course

Judges Cho Jae-il