Attorney C

A defendant shall be punished by imprisonment for one year.

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

The prosecutor's appeal regarding the inducement of sexual intercourse on January 18, 2016 among the acquitted portion of the lower judgment is dismissed.

(a) The defendant (e.g., unfair form)

The court below's punishment against the defendant is too unreasonable (eight months of imprisonment).

(b) A prosecutor;

1) misunderstanding of facts and misapprehension of legal principles

Since the defendant brought the victim into the house of Felher and E for the purpose of having the victim engage in sexual intercourse with D and E, the crime of inducing sexual intercourse is established.

2) Unreasonable sentencing

The lower court’s sentence against the Defendant is too uneasible and unreasonable.

2. Determination

First of all, the prosecutor's argument of mistake and unreasonable sentencing is examined.

A. Facts charged of inducing sexual intercourse

The defendant is between the victim G (n, 20 years of age) who is a disabled person of Grade III with intellectual disability and the victim's birth.

1) On January 18, 2016, the Defendant: (a) had the victim drinkd with D in mind that he would have sexual intercourse with the victim; (b) had the victim drinkd with D; (c) had the victim’s house located in Gangwon-do, Gangwon-do, the Defendant left the victim to 207 FMoMoel 207 (No. 307 of the official hall appears to be a clerical error) located in Switzerland-si, Chuncheon-si.

Accordingly, the defendant enticed the victim for the purpose of inducing D to have sexual intercourse with the victim.

2) On January 21, 2016, at around 16:00 on January 21, 2016, the Defendant got the victim to drink as E in a manner that would cause the victim to have sexual intercourse with the victim. On the part of the Defendant, at K located in Gangwon-gu, Yangyang-gu, Yangyang-gu, JJ, the victim was taken to the victim, or the victim was taken to 204, Chuncheon-si, the E’s residence.

As a result, the defendant induced the victim to have the victim sexual intercourse with E.

(b) Facts of recognition;

The following facts are acknowledged according to the evidence adopted and examined by the court below and the trial court:

1) The victim is the fourth son between M and N, who is the birth of the second son, and the birth of the dead woman is P.

2) A victim’s intellectual ability;

A) Psychological evaluation report

The total IP measured by K-WAS is less than 45. The social age is less than 14 years, and the sociality index is 78 years, and the victim's intelligence index is less than the victim's ability to adapt to society significantly.

B) Statement of opinion regarding the preparation of the R Hospital S

In the psychological examination, intelligence 51, 6 years of age 2, 6 months of age 2, 11 years of age, S Q 67 of social age in the inspection room.

C) In light of the situation and attitude of the victim’s statement in this court, the victim appears to be unable to properly understand and respond to the complicated or difficult questions, but it is not easy to find out that there is a disability in light of the appearance (e.g., external appearance, and sound) or speech and behavior, such as responding to a simple question.

3) On January 9, 2016, the Defendant came to know P through mobile phone hold while hospitalized in the Seocho Hospital. On January 9, 2016, the Defendant went to the House of P in Gangwon-gun H, Gangwon-do, Gangwon-do, on January 9, 2016.

4) The Defendant: (a) carried the victim and P on the Defendant’s car, carried the victim and P on the Defendant’s car with Hongcheon-gun, carried the victim and P on the house again; and (b) met friendly districts in the Gangwon Man-gun of Gangwon.

5) On January 10, 2016, around 08:30 on January 10, 2016, the Defendant discussed the victim and P on the game movables located in the river where the Defendant was on board the Defendant’s boarding vehicle, and contacted with the Defendant-friendly job offers D.

6) On January 12, 2016, the Defendant drank the victim’s house at the time of ice, and drinks alcohol with the victim, and drinking alcohol by combining D with the victim’s house at the middle. The Defendant d d d d d d d d d d d d d d d f d d d d d d d d d d d d d d d d d d d d d d d d d d e on the floor of the Defendant’s room.

7) On January 21, 2016, the Defendant took the victim and P in his house around October 21, 2016.

8) 그 후 피해자는 자신의 휴대전화에 D의 휴대전화번호(T)를 "울오빠 ♥♥"라는 이름으로 저장한 다음 D과 U 문자메시지를 주고받았다. 피해자와 D이 2016, 1. 17, U 문자메시지로 대화한 내용은 아래 표 기재와 같다.

A person shall be appointed.

9) On January 18, 2016, the Defendant and D sent U text messages with the following dialogues:

A person shall be appointed.

10) On January 18, 2016, the victim and D sent U text messages with the following dialogues:

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

11) On January 18, 2016, the victim called "D or D. B" to the victim who thought that the victim would have been deep enough to D. The victim called "D or D. The victim's home was the victim's house, and the victim called "D," and the victim called "D," as it was the victim's home, while leaving the victim's car at the victim's house, and called "D," and the victim went to the victim. D had the victim drink the alcohol at the victim's home, and entered the FMoel 207 in I in Yacheon-si, Sacheon. The defendant and the victim 19:30 on the same day, and 21:2:2:30 on the same day, the defendant she drinking alcohol with D, and she had a sexual intercourse with D, and the victim had a sexual intercourse between D and D. on the following day.

12 ) 피고인은 2016. 1. 19. 00:37 E에게 "골뱅이 노쳤네", "장애가 있으니 / 안되네 ㅠ / 흑흑" 이라는 각 U 문자메시지를 보냈는데, 경찰에서 피의자신문을 받으면서 위 문자메시지의 의미에 관해 전자는 "모텔에 D과 피해자를 단둘이 두고 나오면서 보낸 것이다. 그때 피해자가 술에 취해 있었는데 D에게 양보하고 나왔다는 의미로 말한 것 이다. "라고, 후자는 "제가 다리가 아파서 목발을 짚고 다니니까 피해자가 저를 좋아하 지 않고 친구인 D을 좋아한다고 느껴서 말한 것이다."라고 각 진술하였다 .

13) On January 19, 2016, the Defendant sent the victim to K with the statement that he had sexual intercourse with D with the victim while moving the victim to K.

14) On January 21, 2016, the victim sent a U.S. text message to the defendant around 9:00 a.m., stating that he/she will salute the Defendant.

15) Accordingly, on January 21, 2016, the Defendant and E made a conversation with U text messages as listed below.

A person shall be appointed.

16) The Defendant, upon being examined by the police, proposed “the meaning of the instant text message,” “the victim had sexual intercourses with D,” and recommended “the victim’s sexual intercourses with D, and the victim was unable to drink if drinking, and sexual intercourses.”

17) The Defendant called the victim to go on the bus to the Yang-gu-gun of the Gangwon-gu. At around 15:30 on January 21, 2016, the Defendant: (a) called the victim to go on the bus of the victim; (b) and (c) moved the victim to Chuncheon-si; and (c) went on the victim’s house to Chuncheon-si; and (d) the Defendant and the victim wished to go on the victim’s house. In this regard, the Defendant was examined by the police when he was under interrogation, and the Defendant stated that E was aware that it was the victim to go on the vehicle of his own house, and that E was to go on the victim’s drinking to drink in order to make the victim drink.

18) On January 21, 2016, the Defendant, the victim, and the E arrive at Switzerland, and the Defendant went to the hospital to receive physical care, and the victim and the E went to the house of E in Switzerland L apartment 204. After that, the Defendant, the victim, and the E went to the house of E in Chuncheon City L apartment 204, and E went to the Defendant, the Defendant, the victim, and the victim, and the E came to the house of E in Chuncheon City. The Defendant: (a) called the Defendant, who called the Defendant, was to find a low-level computer; and (b) the Defendant started to find a computer around 18:00 p.m. on the same day; and (c) the Defendant, upon being examined by the police, the Defendant was asked to find a computer on the same day; and (c) the Defendant called the “child to find a computer” at the police station, but it was called a me to do so.

19) After 30 to 40 minutes, the Defendant sent alcohol to E with the victim, E, and 20 to 21 hours, followed again. In this regard, the Defendant was under interrogation by the police, and the Defendant attempted to flickly flickly flick flick flick flick flick flick flick flick flick E or flick flick flick flick flick flick flick flick flick flick flick flick flick fl, and flick flick flick fl, E was expected to have sexual intercourse with the victim.

20) On January 21, 2016, at E’s office around 21 to 22: (a) the Defendant took part in the victim’s home and carried the victim’s car in the Defendant’s home; and (b) took part in the victim’s house. The victim told the Defendant that he had sexual intercourse with E within the Defendant’s passenger car.

C. Determination

1) The term "induction" as referred to in Article 288 of the Criminal Act means the act of inducing a person by deceiving him/herself or a third party from his/her free living relationship or protection relationship in accordance with his/her defective intent and moving him/her to another person under the factual control of him/herself or a third party. The term "induction" here refers to an act of inducing sexual intercourse, although it does not reach the degree of deception, but it does not necessarily lead to a cruel interpretation that makes a decision by treating the other party harshly. As such, the factual control does not necessarily require that its contents be false. The term "induction" refers to a physical and real control relationship (see, e.g., Supreme Court Decisions 195Do2980, Feb. 27, 1996; 2007Do2318, May 11, 207). Meanwhile, the purpose of sexual intercourse in the crime of inducing sexual intercourse is to have the offender or the third party.

2) As to the inducement of sexual intercourse on January 18, 2016

According to the above facts, at the defendant's house on January 10, 2016, the victim met with D, as the first drink, and met D, and on January 18, 2016, when communicating D with D, the victim and the two persons expressed a hosa, such as going to travel or going to stay outside, etc. On January 18, 2016. This means that D calls for a sexual intercourse while carrying out sex education with the victim. The victim made a speech to suggest a sexual relationship at all. The victim did not respond to the rejection at all, and the victim came to have a sexual relationship with D on January 19, 2016 with the Defendant's car 207 after drinking the Defendant's car.

Therefore, even if the defendant knew that D would have a sexual relationship with the victim and moved the victim to the above telecom, the victim could voluntarily go to the above telecom with the awareness that D would have a sexual relationship with D, so long as the defendant knew that D would have a good sexual relationship with D and the victim would have been aware that D would have a good sexual relationship, the defendant cannot be deemed to have had the victim had a free living relationship or protection relationship by deceiving or treating the victim (it cannot be deemed that there was an intentional deception or cruel intention to the victim, and the victim could have been a factual control of D would have come to the point of his own will).

Therefore, the prosecutor's allegation of mistake and misapprehension of legal principles is without merit.

3) As to the inducement of sexual intercourse on January 1, 2016

According to the above facts of recognition, the defendant was aware that it was easy for the victim to engage in sexual intercourse with D with the victim after hearing the statement that the victim would have sexual intercourse with D, and that it would be easy for the victim to engage in sexual intercourse with E, and that the victim would have sexual intercourse with E (the purpose of multi-time sexual intercourse) with the view that the victim would have sexual intercourse with E, and that the victim would have sexual intercourse with E (the purpose of multi-time sexual intercourse). It is reasonable to view that the victim was able to move the victim to E under the factual control of E, and that there was an awareness and intent of the factual control by such suspicion (see, e.g., Supreme Court Decision 90Da1788, Jan. 21, 2016). If the victim was aware of the victim's sexual intercourse with E, it can not be seen that the victim could have sexual intercourse with E, or that the victim could have sexual intercourse with E, from 200 first to 30 years prior to the victim's first.

Therefore, this part of the facts charged is established as a crime of inducing sexual intercourse, so the prosecutor's allegation of mistake and misapprehension of legal principles is justified.

3. Conclusion

Therefore, since the prosecutor's appeal against the inducement of sexual intercourse on January 21, 2016 is well-grounded, the part of the judgment below's conviction and the part of the acquittal as to the inducement of sexual intercourse on January 21, 2016 pursuant to Article 364 (6) of the Criminal Procedure Act without examining the claim against the sentencing department is reversed, and the following is again decided through pleading. The prosecutor's appeal against the inducement of sexual intercourse on January 18, 2016 among the acquittal portion of the judgment below is without merit, and it is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act.

Criminal facts

1. Inducement of sexual intercourse;

The defendant is a space between the victim G (n, 20 years old) who is a disabled person in the third degree of intellectual disability and the victim's birth.

On January 21, 2016, the Defendant, at around 16:00, got the victim to drink as E in order to cause the victim to have sexual intercourse with the victim. On January 21, 2016, the Defendant got the victim from K located in Yangyang-gu, Yangwon-gun, Yangwon-gun, and went to 204 apartment house in Chuncheon-si, where E is the residence of E.

As a result, the defendant induced the victim to have the victim sexual intercourse with E.

2. Indecent acts by compulsion;

At around 21:00 on January 21, 2016, the Defendant, who was parked in the Y Elementary School X located in Yangyang-gu, Yangwon-gun, Seowon-gun, was able to write down buckbucks by putting the chest on hand with the clothes of the victim who was seated at the top of the Gap himself in the K5 car of the Defendant.

Accordingly, the Defendant committed an indecent act on the part of the victim.

Summary of Evidence

1. The defendant's oral statement in court;

1. Legal statement of G in the current trial;

1. Written complaint;

1. stenographic records of the victim's statement or a victim's statement video CD;

1. An expert opinion on sexual assault against the disabled women;

1. A medical certificate of the preparation of Z;

1. A psychological evaluation report;

1. A report on the results of analysis of digital evidence;

1. Records of the victim's currency;

1. Statement of opinion on the preparation of the proceedings;

1. Investigation report (Attachment of photographs taken from suspect E mobile phones);

1. Examination protocol of police suspect regarding D;

1. Investigation report (Attachment of photographic picture of suspect D's cell phone U.S. conversation);

Application of Statutes

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

Article 288(1) of the Criminal Act, Article 298 of the Criminal Act, and Article 298 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the penalty shall be more severe)

1. Order to complete programs;

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

1. Exemption from an order for disclosure and notification;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Sexual Protection of Children and Juveniles (the crime of this case is not against many unspecified victims). The defendant has no record of punishment before committing the crime of this case, and the defendant is likely to have the effect of preventing recidivism of the defendant to a slow degree through registration of personal information and completion of sexual assault treatment program. In addition, in light of all the circumstances, such as the defendant's age, character and conduct, family environment, social relationship, etc., compared to the disadvantage and anticipated side effects that the defendant suffers, the effect of preventing sexual crimes that the disclosure and notification order can achieve is relatively less likely to be achieved. Accordingly, it is judged that the defendant should not disclose and notify personal information to the defendant (the special circumstances that the defendant should not disclose and notify personal information).

Where a judgment of conviction becomes final and conclusive on the 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 the main sentence of Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Violence Crimes, and is obligated to submit his/her personal information to the head

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year to 15 years;

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

Part 1 Crimes (Kidnapping and Inducement human trafficking)

【Scope of Recommendation】

In the case of abduction and inducement human trafficking (including concealment, transfer to overseas, recruitment, transportation, and transfer), the basic area (1 to 3 years) of Chapter 2 (Indecent Conduct, Sexual Intercourse, Marriage, Marriage, Kidnapping for Profit-making Purposes).

[Special Mitigation (Aggravated Aggravation)]

Where he/she releases a victim to a safe place / Where the victim is under 13 years of age or is in a physical or mental disability condition.

Second Crimes (sexual crimes)

【Scope of Recommendation】

General Standard Indecent Act by Indecent Act (subject to the age of 13 or older) < Act No. 1 (general indecent act by indecent act)

【Special Convicted Persons】

None

* The scope of final sentence due to the aggravation of multiple offenses: one year to four years.

3. Determination of sentence;

It is an unfavorable circumstance that the Defendant was unable to take advantage of the victim, did not recover any damage, and that the Defendant had been punished three times by a fine due to the sexual purchase crime, and that the Defendant seems to have distorted sexual values in light of the form and circumstances of the instant crime.

However, the punishment shall be determined in consideration of all the sentencing conditions shown in the pleadings of this case, such as the fact that the defendant is against the defendant, the fact that there is no criminal record exceeding the fine, and the age, character and conduct, family environment, means and result of the crime, etc.

Park Sung-gu

Branch Counters