2012Gohap502 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Maternity (Partially Recognized Maternity, Maternity, Part of the Crime)

(A) Violation of the Special Act on the Punishment, etc. of Sexual Crimes

(Ma) Quasi-rape, etc. for the disabled (a person with mental disability recognized as such);

Sexual Intercourse, Violation of the Special Act on the Punishment, etc. of Sexual Crimes

A crime of indecent act by indecent act by indecent act by indecent act by indecent act by indecent act, sexual assault

Violation of the Act on the Punishment of Offenses and Protection of Victims (disabled Persons)

Article 10 (Quasi-rape, etc.)

Song 00, Operation of Disabled Persons 000

Residential Suwon-gu

Head of the reference domicile

On-road (prosecutions) and Kimdok (trials)

Attorney White-chul

December 7, 2012

A defendant shall be punished by imprisonment for five years.

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

The registered information on the defendant shall be disclosed through an information and communications network for five years, and the notified information shall be notified to the local residents of the Eup/Myeon/Dong in which the defendant resides for five years.

Criminal History Office

The defendant registered 000's "00 with disabilities" in Suwon-gu, Busan in 0000, the defendant is a person who operates 13 "00 with disabilities" by being provided with the second floor in the factory under the terms of a year contract with 00000, Busan in 000, and one year contract with 13 persons with disabilities. The victim pregnant ○○(n, 29 years old) is a person who was employed by the defendant as Grade 3 with intellectual disability and worked at ○○○.

The Defendant had been engaged in affairs related to persons with disabilities, such as the Disabled Association and the Disabled 000, for more than 10 years, and was well aware of the characteristics of persons with disabilities, so it is practically difficult for the victim to seek a new workplace due to the characteristics of persons with disabilities, and the victim in the relationship between the employer and the employee is practically difficult to seek a new workplace. In comparison with the Defendant’s demand, the Defendant did not actively oppose the demand of the Defendant, who is an employer of the work that made difficult efforts to make it difficult, or threatened the victim’s father to have sexual intercourse, thereby inducing the victim to engage in indecent conduct and sexual intercourse.

1. Indecent acts by compulsion on May 2009;

Around May 2009, the Defendant reported that the victim would go to the toilet in Busan Dong-gu ○○○○○○○○○○○○, and followed by the victim, thereby making the chest fast by getting the victim to walk. The Defendant her finger by inserting his hand into the part of the victim, and forced the victim to commit an indecent act.

2. Lanely sound;

A. On October 201, the Defendant: (a) ○○○○○○○○ located adjacent to the ○○○○○○○○○○, a Saturday, called the victim’s “the cleaning agent first laying the body of water”; and (b) entered the victim’s bath room, thereby making the victim’s chest prompts of the victim; (c) booming the victim’s chest; and (d) inserted the victim’s sexual organ into the drinking room, thereby making the victim’s sexual intercourse once with the victim, who is a mentally disabled person, by force.

B. From October 201 to December 12 of the same year, the Defendant, around Sundays 11:00 to 12:00 of the same year, at the ○○○○○○○○○○○ located in the Geum-gu, Busan around 11:0 to 12:00 of the same year, inserted the victim’s sexual organ into the part of the victim’s sexual organ by force, thereby having sexual intercourse once with the victim, who is a mentally disabled

3. Indecent acts by compulsion on or around 2011;

A. On January 201, 201, the Defendant: (a) displayed the victim’s sexual organ from the elevator side of the elevator for cargo at the “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○,” located on the day-to-day day-to-day day-to-day day-to-day (hereinafter “○○○○○○”); (b) displayed the victim’s amblock; (c) reported the victim’s entry into the toilet; and (d) led the victim

B. On January 201, 201, the Defendant: (a) opened a string of the instant ○○○○ School near the Geumdong-gu, Busan; and (b) forced the victim to use a string, following the victim’s string; and (c) forced the victim to commit an indecent act by force.

4. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (compreting of disabled persons);

On January 2012, the Defendant: (a) had sexual intercourse with the victim who was disabled on one occasion by inserting sexual instruments into the victim’s negative part, and by force, by inserting the sexual instruments into the victim’s negative part in accordance with paragraph 2(a).

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness ○○○, Ma-○, and Ma-○;

1. Each legal statement made by the witness ○○○ and the last ○○○;

1. Some of the suspect interrogation records of the defendant by prosecution;

1. Records of statements made in relation to 00;

1. Each police investigation report (including cases related to body photographs, site photographs, etc. of victims stored in the cell phone of a suspect - ① photographs of 000 disabled persons and inside places of work, ② the attendance register, ③ the call records of the suspect's cell phone ○○○○○, and the details of counseling △△△△△, etc.);

Application of Statutes

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

Article 298 of the Criminal Code, Article 302 of the Criminal Code, Article 6 (5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of abuse by force of the disabled)

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes with punishment prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with the largest punishment)

1. Order to complete programs;

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

1. An order for disclosure;

Article 37 (1) 1 and (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An order to notify;

Judgment on the assertion by the defendant and his/her defense counsel under Article 41(1)1 and (3) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11162, Jan. 17, 2012)

1. Summary of the assertion

Although the Defendant had sexual intercourses with the victim at the time and time stated in Section 2-A(4) of the judgment, the Defendant only had sexual intercourses under agreement with the victim and did not have sexual intercourses with the victim by force, and did not have any indecent act or sexual intercourses with the victim as stated in the other judgment (as stated in Paragraph 1 at the time of sale, there is no fact between the victim and the toilet, and there is no fact between the victim and the toilet on Sundays No. 2-B of the judgment on Sundays, and there is no fact of each indecent act against the victim as stated in Paragraph 3 of the judgment).

2. Determination

A. Relevant legal principles

The term "compactivity" in the crime of sexual intercourse by force means the ability sufficient to suppress the will of the victim's free will. Since the tangible or intangible is not open, it is possible to use the social, economic, and political status or authority of the offender as well as assault and intimidation. The issue of whether a person has sexual intercourse with another person by force shall be determined by comprehensively taking into account all the circumstances, including the content and degree of the tangible power exercised, the type of the offender's status or competence, the age of the victim, the relationship between the offender and the victim before the offender, the circumstances leading to the act, the specific form of the act, and the circumstances at the time of the crime (see, e.g., Supreme Court Decisions 2007Do4818, Aug. 23, 2007; 2008Do4069, Jul. 24, 2008); the characteristics or degree of disability of the victim in the case of intellectual disabled persons; the victim's perception or surrounding environment; and the content of the victim's reaction and its contents (see, etc.).

B. Determination

The Defendant consistently stated from the investigative agency to the court that there was no indecent act or sexual intercourse with the victim. However, in full view of the following circumstances acknowledged by the evidence, the Defendant may sufficiently recognize the fact of sexual intercourse with the victim by compulsion and force. Accordingly, the Defendant’s and the defense counsel’s assertion is rejected.

1) The credibility of the victim’s statement

① On February 24, 2012, the victim stated that ○○○○○○○ (the father of the victim) did not accurately memory the date and time of damage at the time of the police investigation, but specifically stated and stated the victim’s place of damage and the situation at the time of damage. Inasmuch as the victim’s statement is consistent, it is difficult to evaluate the victim as false, and ○○○○○ (the disabled)’s advice on participation in the statement investigation is deemed to have made a statement to the extent that the victim could be relatively reliable in the actual experienced case (Article 145 of the evidence record). (2) The circumstance of the complaint of this case was that the victim did not appear to have reached an agreement between the victim and the victim at the time of ○○○○○ (the father of the victim)’s complaint and the victim’s statement did not appear to have been made more than 00 days before the victim’s complaint was made on January 24, 2012 through the Internet.

(ii) circumstantial facts and testimony of witnesses;

① 피고인의 2011. 10. 1.부터 2012. 4. 10.까지의 휴대전화 발신내역에 의하면(증거기록 제319~357쪽), 피고인은 2012. 2. 14.까지 거의 매일 수차례 피해자에게 전화하였는바, 출근 시간 이전인 06:00경, 07:00경 및 퇴근 무렵인 17:00경, 퇴근 시간 이후인 19:00경, 20:00경 이후에 전화한 내역이 다수 있으며, 특히 공휴일 및 일요일인 ① 2011. 10. 3. 11:10, ㉡ 2011. 10. 9. 14:27, Ⓒ 2011. 11. 6. 12:28, 12:43, 14:45, 18:06, 18:40 5회, ㉣ 2011. 12. 18. 09:58, 10:26, 10:27, 10:33 4회(피해자의 주거지 근처인 ○○○에서 발신), ① 같은 날 14:00, 14:14 2회(수영구 ○○○에서 발신), 9 2011. 12. 31.(회사 휴무일) 19:24, (ㅅ) 2012. 1. 1. 16:35, (ㅇ) 2012. 1. 8. 10:32, 10:33, 13:07, 13:11, 13:27, 17:12 6회, (ㅈ) 2012. 2. 5. 11:28, 11:35 2회 전화한 내역이 있는바, 증인 박○○가 이 법정에서 피고인은 피해자를 포함한 다른 직원들이 집에 갔는지 확인전화를 하고(아이들이 안 들어 왔다고 하면 전화하고, 문제 있는 아이들에게도 전화한다), 피고인과 함께 퇴근하면서 피해자가 한 번씩 다른 곳으로 가기 때문에 집에 들어갔는지 확인전화를 했었다고 진술한 것에 비추어 보더라도 피고인이 피해자에게 퇴근시간 대가 아닌 새벽 경, 20:00경 이후 및 회사에 출근하지 않는 주말 · 공휴일 등에 집에 잘 들어갔는지 확인 전화를 할 이유는 없어 보이고, 오히려 위와 같은 사실은 회사가 끝난 후에도 피고인이 계속 전화하여 불러냈었다는 피해자의 진술에 부합한다.

② At around 20:31 on September 23, 201, the victim sent one copy of the body body photograph of the victim sent by the victim to the defendant as a mobile phone (the victim asserts that he/she was sent out). Among them, the victim stated that the victim was removed from his/her office with his/her cell phone. On the other hand, on April 13, 2012, the victim sent the victim's house at the sexual assault counseling center office with his/her cell phone and sent the victim's cell phone with his/her cell phone and then sent it to the investigation agency with his/her cell phone, and the victim did not appear to have been removed from his/her cell phone because he/she did not appear to have been removed from the victim's cell phone because he/she did not appear to have been removed from the victim's cell phone because he/she did not appear to have been removed from the victim's cell phone because he/she did not appear to have been removed from the victim's body photograph by 20.

③ Around 209, 000 ○○○○○○○○○○○○○○○○○○○△△△△△△△△△△ was an indecent act against the Defendant. Although it was difficult for the Defendant to find out the fact that it was an indecent act against the Defendant, it was difficult for the Defendant to view that it was an indecent act against the Defendant at the time of the Defendant’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△’s testimony, and thus, it was difficult for the Defendant to report the Defendant’s testimony to the Defendant at the same time and to make it difficult for the Defendant to know that it was an indecent act against the Defendant.

① Also, according to the testimony of the witness 00 and Park OO, if the victim was no longer to work at 000 disabled persons, the defendant and Park ○○○○ together found the victim's her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her with the victim's her her her her her her her her her her her her her her her

⑤ On the other hand, in this court, Park○-○ stated that he was the victim's knee in the Defendant's knee room around 201 and that she only reported that she was the victim's feng and drinking the Defendant's mobile phone in the workplace. On the other hand, she stated that she was the victim because she was asked her "Iging and drinking the Defendant's feas," because she was the victim's feas, "Iging and drinking the Defendant's feas". However, from around 2003 to 00, she is difficult to entirely believe the statement because it is difficult to eliminate the possibility of the Defendant's feasing the Defendant's feasing the Defendant's knee, even if the victim took the above action, it is difficult to readily conclude that she had a sexual intercourse with the Defendant, even if she had a feasing the Defendant and had a sexual relationship with the Defendant.

(6) In addition, from this court to this court on 2011, ○○○ was the fact that it was between the Defendant and the victim at the singing room near the ○○ school (Article 3-2 (b) at the time of printing). However, immediately when the victim went to the singing toilet, the Defendant was sent to the toilet, and there was no difference of time between the Defendant and the victim when the victim went to the male toilet, and when the victim went to the toilet, 2-3 minutes at the time of coming to the female toilet. However, the presiding judge asked the defendant whether the victim was sing down at the time of coming to the toilet, and asked the defendant whether the victim was sing down to the toilet, and it was difficult for the defendant to have the above 0-day witness's testimony as the employee at the time of entering the bar.

3) Whether there was "the defendant's sexual intercourse" at the time of each sexual intercourse

① 피해자는 고등학교 졸업 후 직장을 구하지 못하던 중 부산 장애인고용촉진공단에서 취업을 알선하여 2008. 10. 20.부터 피고인이 운영하는 장애인 ○○○(○○소재)에서 근무하게 되었는바, 피고인과 피해자는 고용자와 피고용자의 관계에 있었던 점, ② 피해자는 수사기관에서 성관계 당시 피고인에게 '하지 마라'는 말을 못했었는데 그 이유에 대해 "나중에 회사 가면 보복할 것 같아서, 뭐라 하실 것 같아서요"라고 진술하였고, 그전에도 회사에서 뭐라고 하거나 보복한 게 있었냐고 묻자 "아빠한테 계속 말하겠다고 그러고 회사 맨날 빠지고 하면 아빠한테 맨날 말한다고 협박했던 것 같긴 해 요"라고 대답하면서 피고인이 '이제 말하겠다, 회사 안 나오면 이제 아빠한테 말하겠다, 전화하겠다, 찾아가겠다, 회사에서 자르겠다, 한 번만 더 말 안 들으면 회사에서 이제 자르겠다'는 말을 수시로 해 왔었다고 진술하였으며, 피고인이 성관계를 요구할 때 피해자가 응하지 않으면 피고인이 어떻게 할 것 같았느냐고 묻자 "회사 자를 것 같았 어요, 다른 사람들과 막 비교하고 이랬어요, 누구는 일 잘하는데 누구는 일 못 한다는 식으로 비교를 많이 했어요."라고 대답하였고, 피고인을 남자로서 좋아했던 마음이 없으면서 계속 모텔에 따라간 이유에 대해서는 "회사 상사니까 어쩔 수 없었어요, 자를까 봐 겁도 났었고, 회사 가서도 너하고 말 안 한다 말하기 싫다, 너 보기 싫다고 보복할 것 같아서요." 라고 진술하였으며, 피고인은 자주 전화해서 자신을 불러냈었는데 전화를 받기 싫었지만, 전화를 안 받으면 '왜 전화 꺼놨냐, 뭐 때문에 안 받았느냐, 회장님 무시하냐, 회장님 미워하냐'는 식으로 말해서 안 받을 수가 없었고, 거짓말로 둘러대고 못 나가겠다고 하자 계속 전화 오고 밤 9시에 전화 온 적도 있었다고 진술하였던 점, ③ 또한, 피해자는 이 사건 각 피해내용에 대해 진술하면서 울먹거리기도 하였고 일관되게 피고인의 행동이 싫었다는 취지로 진술하였으며, 피고인에 대해 '무섭기도 하고 두렵기도 하고 다시는 안 봤으면 좋겠다, 치가 떨린다, 강제로 어디 데리고 들어가려고 그러고 가기 싫은데 막 손으로 치고 잡아당겼던 행동이 나쁜 것 같다'고 진술한 점 등을 종합하여 볼 때, 성관계 당시 피고인이 피해자에게 물리적 유형력을 행사한 사실은 없다 하더라도 평소 피고인의 언행 및 피고인과 피해자의 관계로 인해 심신미약자 내지 지적 장애인인 피해자는 이 사건 각 간음행위 당시 피고인에게 두려움을 느끼고 있었고, 이는 피해자의 자유의사를 제압하기에 충분한 위력에 해당한다고 봄이 상당하다.

1. The grounds for sentencing: Imprisonment with prison labor for not less than five years but not more than 45 years;

2. Scope of recommendations;

(a) Basic crime: the crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Sexual Intercourse, such as deception of disabled persons);

[Determination of Punishment] A sex offender group, general standards, sex offenses against persons with disabilities (the age of 13 or more), rapes (the type 4): A person who uses deceptive schemes and force other than assault and intimidation

○Aggravated factor: Crimes by persons responsible for filing reports or employees, such as protective facilities, etc.

【General Convicts】

○ Aggravations: Use of Personal Trust Relationship

[Scope of Recommendation] Reduction Area: Imprisonment for 4 years to 7 years;

(b) Concurrent crimes: Each indecent act by compulsion in judgment;

[Determination of Punishment] A crime group, general standards, and the crime of indecent act by compulsion (subject to 13 years of age or older) general indecent act (type 1): A person who uses deceptive means or force other than assault and intimidation (type 2).

○Aggravations: Crimes committed by victims, persons obligated to report, or persons engaged in protective facilities, etc. who are vulnerable to crimes.

【General Convicts】

○ Aggravations: Use of Personal Trust Relationship

[Scope of Recommendation] Aggravation: Imprisonment with prison labor for a year and six months to three years. Many criminal treatment standards: Imprisonment for a period of not less than five years (in the absence of any adjustment according to the applicable applicable sentences under the law, and the sentencing guidelines for persons with mental disability, considering only the lowest limit of the recommended punishment).

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

The Defendant has repeatedly committed a sex offense against the victim of Grade III of intellectual disability who was employed in ○○○○ operated by himself/herself over three years, by compulsion, by force three times, etc., and repeatedly committed a sex offense, such as sexual intercourse, etc., the Defendant, who is in the position to protect and supervise the disabled, rather than in his/her position, committed the instant crime against the victim by taking advantage of his/her status, and the victim seems to have suffered heavy mental pain, and the victim is seeking the punishment of the Defendant, and even though the Defendant denies all of the instant crimes up to this Court, it is necessary to punish him/her more severe punishment.

However, the defendant is against the fact that he/she has sexual intercourse with a victim who is a disabled person in his/her position to be protected, the defendant also seems to have endeavored for disabled persons in his/her work related to disabled persons, such as the disabled disabled person association, disabled person association, ○○○○○, etc. for several years. The defendant has no record of criminal punishment except three times a fine, and has no record of the same criminal conduct, and the defendant's age, character, conduct, family relationship, environment, etc. shall be determined by taking into account various sentencing conditions shown in the arguments of this case such as the defendant's age

Where a conviction becomes final and conclusive on each of the crimes in the instant case involving the registration of personal information, the Defendant constitutes a person subject to registration of personal information pursuant to Article 32 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, is obligated to submit personal information to the competent agency

Chief Judge Park Jong-chul

Judge Maump

Judges Lee private-public;

1) The defense counsel has received a disability grade only after the defendant graduated from a high school, which is not a school for the disabled, but a high school for the disabled.

Until the school graduate, there was no anything else in the intellectual ability, and even if the current intellectual disability 3 level, if he/she does not do so, he/she does not refuse to do so.

Although it is alleged that it has age and ability to properly reflect, it is based on the reply to the inquiry of the fact about 00 higher schools.

At the time of high school, the victim was the lowest right of academic performance, and according to the fact-finding reply to the Dong-gu Office, the victim was the victim on April 20, 2006.

On April 28, 2006, the intellectual disability was registered as Grade 3 of the intellectual disability. At the time of the psychological evaluation report, the victim was 68 of the intelligence index and social lodging.

In the index 54 (in the event that the intelligence index and the social well-being index are between 50 and 70, persons who can receive education through society and vocational rehabilitation).

F. On the sole basis of the fact that the victim was late at the level of intellectual disability and did not attend the school for the disabled, the victim's intellectual status is normal.

It is difficult to see that the victim is a woman under 29 years of age, but the victim is a woman under 11 to 12 years of age, and the victim is somewhat unable to defend.

It seems that there was a lack of decision-making and decision-making ability as a person with disabilities (Evidence No. 139).

2) Even if examining whether the content of the victim’s statement was exaggerated or fabricated by Ma○○○, the victim’s statement is the victim’s ice.

If you did not talk about YOO by Switzerland, it is not known that YOO had falsely tending, and the victim is not the victim.

From February 16, 2012, he/she was living in ○○○○, away from his/her parents. On February 24, 2012, he/she appeared without accompanying of his/her parents at the time of police investigation.

In light of the fact that such investigation has been conducted, there is little possibility that the statements of the victim have been fabricated by ○○○.

3) The adviser evaluated that the victim is accurately aware of the essential day, and that the victim is unable to memory the accurate date, but on Sundays.

The statement that the defendant and the ○○ Telecom seems to be reliable.

4) A defense counsel has an enemy raised by Ma○○○ for a similar case against the victim by receiving an agreement from others. A victim around 2007 to 2008

In the case of sexual assault, the police station argued that the case was investigated by the police station, but the inquiry letter to the Busan Regional Police Agency was made.

According to this, sexual assault cases against victims have not been received.

5) The Kim○-○ calls from this Court to the Defendant on May 20, 2009, and in fact, deemed that the Defendant specifically talks with the existence of such things.

It stated that the Defendant did not have such a day, or that it would not have such a talk again, and at the time, the Defendant “I do not do so.”

In other words, I would like to see that the witness "I will not see this sound," and that "I will not see it."

The testimony was made that there was a fact that said testimony was made.

6) In addition, a woman with intellectual disability where ○○○○ Association Chairperson (Defendant) ○○○○○○ Association Chairperson ○○○○○○○○○ Association Chairperson ○○○○○ is working at a counseling center after 2005 in the category of the counselor

There were several cases that information about sexual harassment and wage exploitation was made against the victim, but it is stated that it is necessary to eradicate it (Evidence).

Records No. 372.