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(영문) 서울고등법원 2019.9.19.선고 2019노1262 판결

아동·청소년의성보호에관한법률위반(위계등간음)[인정된죄명성폭력범죄의처벌등에관한특례법위반(장애인위계등간음)]

Cases

2019No1262 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (compact, etc.)

[Special Cases Concerning the Punishment, etc. of Sexual Crimes under Recognized Crime]

【Violation of the Act on the Protection of Persons with Disabilities】

Defendant

A

Appellant

Both parties

Prosecutor

Bags (prosecutions) and public trials (public trials)

Defense Counsel

Attorneys Kim Tae-tae (Korean)

The judgment below

Seoul Central District Court Decision 2018Gohap1123 Decided May 17, 2019

Imposition of Judgment

September 19, 2019

Text

The judgment of the court below is reversed.

Defendant shall be punished by imprisonment for a term of four years and six months.

The defendant shall be ordered to complete a sexual assault treatment program for 80 hours. The defendant shall be ordered to place employment restrictions (including the prohibition of operating and providing actual labor) for five years in institutions, etc. related to children and juveniles and welfare facilities for disabled persons.

Reasons

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

피해자를 가까이에서 상당한 기간 관찰하거나 깊이 있는 이야기를 나눌 기회가 없었던 피고인으로서는 피해자에게 정신적인 장애가 있다는 사실을 알 수 없었다. 원심에서 조사한 증거들만으로는 이를 인정하기에 부족하다. 피고인이 위력을 행사하여 피해자를 간음하였다고 볼 증거가 부족하다. 피고인은 피해자가 피고인을 찾아와 피고인의 신체를 애무하자 엉겁결에 피해자의 가슴과 음부를 만졌을 뿐이다. 피해자의 진술은 전반적으로 신빙성이 떨어진다. 피해자의 음부 등에서 피고인의 DNA가 검출되지 아니하였고, 달리 피해자 진술을 뒷받침할 수 있는 객관적인 증거도 없다. 신빙성에 의문이 있는 피해자의 진술만으로 범죄사실을 인정한 원심은 부당하다.

Therefore, the judgment of the court below which recognized that the defendant had sexual intercourse with the victim by force knowing that the victim was mentally disabled.

2) Unreasonable sentencing

The punishment of the lower court (one year and six months of imprisonment, etc.) is too unreasonable.

(b) An inspection;

The sentence of the court below is too unhued and unfair.

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

The Defendant also asserted the same purport as the grounds for appeal in the lower judgment. On this basis, the lower court determined that the victim’s statement was credibility on the grounds of the circumstances stated in Articles 4 through 12 of the lower judgment, and that the Defendant could sufficiently recognize the fact of sexual intercourse with the victim by force when he knows that the victim has a mental disability. Examining the evidence duly employed by the lower court in light of the evidence, the lower court’s determination is sufficiently acceptable. In so doing, it did not err

The defendant argues that "the injured party planned 0 in a way that he / she was the wife of the defendant, and then cancelled the promise, and the defendant found her to be mixed." Thus, this paper also examines this point.

The defendant's wife 0 stated that "at 10:0 on June 23, 2018, the defendant's wife was present as a witness at the trial, "at 10:00 on June 23, 2018, the victim was able to attend the meeting at her house on the day before the day when the preceding day is authorized." The victim responded to the counsel's answer "I am febb where there is a timely promise to do so?" "I am feb." The victim asked that "I am difficult to do so, and I am like to do so." The victim asked that "at 185:0 on June 23, 2018, the victim was able to attend the meeting from 30:0 on June 27, 2018 to 31:0 on June 20, 200 on the day before the day when the meeting was held, and that the victim did not attend the meeting at 3:0 on June 18, 201018.

However, solely based on the foregoing circumstances, it is not easy for the victim of Grade II, who is merely an intelligence index (I Q) 46 and a social lodging index (S Q) 48, to have the purpose of sexual intercourse with the Defendant and have access to the Defendant. According to the results of the inquiry into L by the lower court, the victim did not discover the fact that the victim contacted the Defendant first on the day of the call between the Defendant’s house and that of the preceding day, and it is confirmed only that the Defendant had contacted the victim by text messages and telephone from June 23, 2018 to November 32, 2018.

In light of these circumstances, it does not seem that the victim has planned 0 days out with the purpose of having sexual contact with the defendant and then found the defendant. The above argument by the defendant cannot be accepted.

3. Ex officio determination

Article 59-3 (1) of the former Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018) provides that "10 years shall be passed from the date on which the execution of all or part of the punishment or medical treatment and custody is completed or exempted, or the execution of such punishment or medical treatment and custody is suspended, by sexual crimes under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, or sex crimes against children and juveniles under the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as "sexual crimes").

However, unlike the previous provisions, Article 59-3(1) of the Act on Welfare of Persons with Disabilities, which was amended by Act No. 15904 on December 11, 2018 and enforced on June 12, 2019, provides, unlike the previous provisions, that where the court issues a sentence of imprisonment or medical treatment and custody for a sex offense, it shall issue an order to operate welfare facilities for persons with disabilities or to prohibit them from providing employment or actual labor to such facilities for a fixed period not exceeding ten years (hereinafter referred to as "order to restrict employment") at the same time, but the same provision provides that Article 2 of the Addenda of the Act (amended by Act No. 15904, Dec. 11, 2018) provides that the same shall not apply to persons who committed a sex offense before this Act enters into force and have not been finally determined.

However, since the crime of this case constitutes a sex offense, the amended Act on Welfare of Persons with Disabilities was enforced after the judgment of the court below, as a result of the application of the above amended provision, the sentence on the defendant's punishment is imposed, and at the same time, whether the employment restriction order is imposed on the welfare facilities for persons with disabilities as an employment-restricted institution, and the period of the employment restriction should be determined by further review. Furthermore, the above amended provision is an incidental disposition that simultaneously declares a sex offense case's conviction, and the judgment of the court below is reversed

4. Conclusion

The judgment of the court below is not erroneous in the misunderstanding of facts, but there is a ground for ex officio reversal. The judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant and the prosecutor's allegation of unfair sentencing.

【Discriminary Judgment】 Summary of Criminal Facts and Evidence

The summary of facts constituting an offense and evidence recognized by this court is the same as the written 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 applicable to criminal facts;

Article 6 (5) of the Act on Special Cases concerning the Punishment, etc. 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 3 of the Addenda to the 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 same Act (amended by Act No. 15452, Mar. 13, 2018); 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); Articles 2 and 59-3(1) main text of the Addenda to the Act on Welfare of Persons with Disabilities (amended by Act No. 15

1. Exemption from an order for disclosure and notification;

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

In addition, considering the defendant's age, environment, family relationship, social relationship, method and result of the crime, disclosure and notification order, the degree of disadvantage and anticipated side effects of the defendant's disadvantage caused by disclosure and notification order, prevention of sexual violence crime subject to registration, victim protection, etc., there are special circumstances that may not disclose the defendant's personal information.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to fifteen years;

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

(c) A sex offense subject to persons with disabilities (not less than 13 years of age) [No person who has been raped]

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment for 6 years to 9 years

3. Determination of sentence;

Although the Defendant was responsible for taking a higher moral standard and care of believers, he/she went to commit the instant crime by taking advantage of the victim’s trust and name, who is a intellectually disabled person. The victim appears to have suffered considerable mental impulse, creating a proper sense of values in the future, and doing a normal life. Nevertheless, the Defendant did not fully endeavor to compensate for the damage or receive a letter from the victim. The victim is trying to be punished against the Defendant by asserting the psychological and economic burden due to the Defendant’s act.

However, the degree of tangible power exercised by the defendant is not significant. When the defendant is detained for a long time.

It seems that the living of the defendant's family will be faced with great difficulties.

In full view of the above circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, circumstances after the crime, previous convictions, etc., the punishment lower than the minimum sentencing range shall be determined.

Where a conviction becomes final and conclusive against a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes in the judgment that is subject to registration and submission of personal information, the accused 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 accused is obligated to submit personal information to the competent agency under Article 43

Judges

The realization of the judge's judgment

Judge Roster

Judges Song Jae-Gyeong