(영문) 서울고등법원 2013. 10. 11. 선고 2013노2254,2013전노250(병합) 판결[강간치상·성폭력범죄의처벌및피해자보호등에관한법률위반(카메라등이용촬영)·부착명령][미간행]
Defendant
Defendant and the respondent for attachment order and the prosecutor
The highest leapscopes and stuffs (public trial)
Law Firm Jeongam, Attorney Lee Jin-hun
Jung-gu District Court Decision 2013Gohap86, 2013 Jeon high-ranking6 decided June 14, 2013
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for three years.
To order the defendant to complete the sexual assault treatment program for 40 hours.
The information on the accused shall be disclosed and notified through an information and communications network for five years.
The prosecution against the defendant regarding rape among the facts charged in the instant case is dismissed.
The request for the attachment order of this case is dismissed.
1. Summary of grounds for appeal;
A. Part of the defendant's case
1) Defendant and the respondent for an attachment order
A) misunderstanding of facts or misapprehension of legal principles
Inasmuch as there is not sufficient evidence to acknowledge that the victim’s wife was caused by rape of the defendant and the person against whom the attachment order was requested (hereinafter “the defendant”), or because it does not constitute injury to the crime of causing rape, the defendant cannot be punished as the crime of causing rape, and only the crime of causing rape may be established. However, since the victim revoked the complaint against the defendant on May 13, 2013, the prosecution against rape among the charges of this case should be dismissed.
B) Unreasonable sentencing
The sentence of the court below is too unreasonable.
(ii)a prosecutor;
The sentence of the court below is too unhued and unfair.
B. Part of the attachment order case
The defendant appealed to the defendant on the ground that the period of attachment order is too short and unfair.
2. Determination
A. Part of the defendant's case
1) Summary of the charge of the instant case’s injury resulting from rape
At around 19:00 on August 6, 2007, the Defendant: (a) reported the victim Nonindicted Party 1 (Woo, 15 years of age) returned home in Dongducheon-si (hereinafter omitted); and (b) took a shoulder with the victim; (c) met the victim as if he was a deadly weapon, and (d) took the victim’s knife on the side gate of the victim as if he was a deadly weapon, and (d) took the victim into a toilet at Dongducheon-si ( Address omitted).
At the above time and place, the Defendant met the part of the victim, and made the victim prompt to see her sexual organ, made the victim report the wall back, inserted her sexual organ into the part of the victim's sexual organ in order of the victim's sexual organ behind the victim's back, and her act of self-confising the victim's sound and resistance with the victim's defect that she is standing off. After that, the Defendant tried to re-Rape the victim after sitting the victim on the part of the defendant, but the victim was only the victim's sound and resistance against the defect that she was standing.
Accordingly, the defendant raped the victim, thereby resulting in the victim's non-competence in the number of days of treatment.
2) Determination as to whether the victim was injured by the Defendant’s rape crime
In full view of the following circumstances, i.e., the evidence duly adopted and examined by the court below and the trial court: ① the victim did not have sexual experience at the time of the case; ② the victim made a statement that he was 15 years of age as a result of the police investigation on the day of the case; ③ the victim was given medical examination at the hospital immediately after the case, ③ the victim was found to have been 3 times of the opening (5 times, 7cc, 9cc). ④ The above examination and examination correspond to the Defendant’s rape crime; ④ there is no circumstance to deem that the victim suffered the above situation due to other reasons than the Defendant’s crime; ⑤ The medical record of the victim of sexual assault stated the above examination results, ⑤ The victim of sexual assault could not have mentioned about the possibility of suffering from the above situation due to the Defendant’s rape, and thus, this part of the Defendant’s assertion is without merit.
3) Determination as to whether the injured party's wife constitutes injury to the injured party in the crime of rape
A) In the crime of injury resulting from rape means that the physical condition of a victim is changed to a bad condition of the victim, and that a disability is caused to his/her living function. If the injured party’s wife is extremely minor and does not need treatment, and the injured party’s daily life is unable to be treated without treatment, and the injured party’s physical condition is naturally cured following the lapse of time, it cannot be deemed that the injured party’s physical condition was changed to a bad condition, or that a disability is caused to his/her living function (see Supreme Court Decision 2004Do483, Mar. 11, 2004, etc.).
B) Comprehensively taking account of the evidence duly adopted and examined by the lower court and the first instance court, the following facts and circumstances are recognized.
① The victim stated at the police on the day of the instant case that he was written as a negative part, but the victim respondeded to the item (No. 12) asking whether the medical record for the victim of sexual assault was physically damaged, and the written draft submitted at the lower court stated that “I did not have any special treatment at that time and did not feel any inconvenience in living.”
② immediately after the instant case, Nonindicted Party 2 diagnosed the victim as “no special opinion” and “the victim’s wife, but there are three parts of the victim’s wife and three parts of the victim’s wife, and the Ablasas Policy”, and prescribed the cefa(s) three times a day and three days a day.
③ A doctor Nonindicted 2 diagnosed that the injured party’s wife does not need to be treated separately and that the injured party’s wife can be naturally cured, but, in order to prevent future malfa from occurring in the future, determined as above.
C) Examining the above facts and circumstances in light of the legal principles as seen earlier, the above wife suffered by the victim does not need treatment, and does not interfere with daily life even without treatment, and is a minor body that can be naturally cured. Therefore, it is difficult to view that the Defendant’s assertion on this part constitutes injury to the crime of causing rape.
4) Sub-committee
Therefore, the judgment of the court below which judged that the above wife suffered injury from rape constituted injury to rape and found guilty of this part of the facts charged, which affected the conclusion of the judgment, shall not be maintained as there is any error of law by misunderstanding of facts or misunderstanding of legal principles.
B. Part of the attachment order case
1) Summary of the cause of the request for attachment order and the judgment of the court below
On May 12, 200, the Defendant was sentenced to a suspended sentence of three years for a crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Rape, etc. of Minors). The Defendant committed the instant sexual crime on at least two occasions on the grounds that he/she committed the instant crime, and the Defendant was found to have habited by committing the said crime on at least two occasions on the grounds that he/she committed the instant crime, and on the basis of the fact that he/she committed the instant sexual crime on the ground that he/she is likely to recommit the sexual crime, the Defendant filed a request to attach the instant attachment order pursuant to Article 5(1)3 and 4 of the former Act on the Electronic Monitoring, etc. of Location Monitoring, etc. of Specific Criminal Offenders (amended by Act No. 11558, Dec. 18, 2012; hereinafter the same) on the ground that he/she committed the instant crime, the lower court ordered the Defendant to attach the electronic tracking device for ten years.
2) Determination of the immediate deliberation
In this case, the judgment of the court below which ordered the attachment of an electronic tracking device to the defendant is unlawful, and thus, the request for attachment order of this case should be dismissed without further review as to the grounds for appeal, as follows. The crime of rape in this case is not a sexual crime provided for in Articles 5 and 2 of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. Thus, the request for attachment order of this case should be dismissed. Nevertheless, since the judgment of the court below which ordered the defendant to attach an electronic tracking device is unlawful, the part of the case of attachment order of this case is not reversed without further review as to the grounds for appeal.
3. Conclusion
Therefore, the defendant's appeal against the part of the judgment below as to the defendant's case is with merit. Since the court below rendered a single sentence by treating the above part and the remaining part of the crime as concurrent crimes under the former part of Article 37 of the Criminal Act, the part concerning the defendant's case among the judgment below should be reversed in its entirety. Since the part concerning the attachment order among the judgment below is a ground for reversal ex officio, the part concerning the defendant's and the prosecutor's assertion of unfair sentencing is without examining each of the judgment on unfair sentencing, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act
On March 3, 2006, the Defendant was sentenced to imprisonment with prison labor of ten months with prison labor for larceny at the Seoul Southern District Court on September 24, 2006, and completed the execution of the sentence on September 24, 2006, and on February 12, 2009, the Seoul Central District Court was sentenced to imprisonment with prison labor of one year and six months for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the judgment became final and conclusive on February 20,
At around 19:00 on August 6, 2007, the Defendant: (a) reported the victim’s non-indicted 1 (n, 15 years of age) returned home, and (b) led the victim to a toilet at Dongbcheon-si (hereinafter omitted) by threatening the victim to “I am kn if I am knife because I am knife, I am knife I am knife I am knife I am. If I am knife I am. I am knife I am.”
The defendant took three times the body photographs of the victim using his cell phone camera at the above time and at the above location, and showed the same attitude to spread the body pictures when the victim reported sexual assault.
Accordingly, the defendant taken the body of the victim who could cause a sense of sexual shame using a mobile phone camera against his will.
1. Statement of the defendant in the original judgment and the court of original instance;
1. The police statement of Nonindicted Party 1
1. On-site photographs;
1. Previous records: Copies of written judgments, criminal records, etc., and current status of personal identification and acceptance of inquireers;
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 14-2 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 8852 of Feb. 29, 2008), Article 14-2 (1) (Article 14-2 (1) of the same Act
1. Aggravation for repeated crimes;
Article 35 of the Criminal Act
1. Handling concurrent crimes;
The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act
1. Order to complete programs;
Article 4 and the main sentence of Article 21 (2) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse
1. An order for disclosure and notification;
Articles 4(1), 47(1), and 49(1) of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 49 and 50 of the Act on the Protection of Children and Juveniles against Sexual Abuse
The crime of this case was committed against the will of the victim, who is a juvenile living together with the defendant's way, leading the victim's body to the toilet of the neighboring building by threatening the victim's fingers to face with the victim as if he were a deadly weapon. The crime of this case was committed against the victim's will. At the time of this case, the victim's age was 15 years of age. When the defendant reported sexual assault against the victim, the crime of this case was committed against the victim's sexual intercourse with the purpose of threatening the victim. The crime of this case was committed against the victim. The crime of this case was committed against the victim's severe mental impulse. The defendant was committed with the previous department, and the defendant committed the crime of this case during the repeated crime period. On the other hand, the defendant did not want the victim's punishment by agreement with the victim, the punishment should be determined in consideration of equity with the defendant's age, character and behavior, environment, motive and circumstance of the defendant, motive and method of the crime of this case, various conditions of the crime of this case, etc.
Where a conviction of the Defendant against the instant crime is finalized, the Defendant becomes 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.
Of the facts charged in this case, the summary of the injury resulting from rape is as described in the above 2. A. (1). As seen in the above 2. A. (3), since the victim's upper wife does not constitute injury to the crime of rape, the defendant cannot be punished as the crime of causing rape, and only the crime of rape can be established. The crime of rape falls under Article 297 of the former Criminal Act (amended by Act No. 11574, Feb. 18, 2012; hereinafter the same shall apply) and can be prosecuted only upon the victim's complaint pursuant to Article 306 of the former Criminal Act. However, according to the written application submitted by the court below by the victim non-indicted 1, the above victim's revocation of the complaint against the defendant on May 13, 2013 after the indictment in this case can be acknowledged. Accordingly, the prosecution against rape in this case is dismissed pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act.
The summary of the facts leading up to the request for the attachment order of this case is as shown in the above 2.b.1, and as seen in the above 2.2.2.2, the judgment dismissing the charge of rape among the facts charged of this case shall be sentenced, and the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, Etc. (Kamerra Use and Screening) is not a sexual crime subject to the request for the attachment order, and thus, the request for the attachment order of this case shall be dismissed pursuant to Article 9(4) of the former Act on the Electronic Monitoring, etc.
Judges Kim Jong-tae (Presiding Judge)