2018Gohap690,1120(combined) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

(Indecent act by compulsion, indecent act by compulsion, obscenity, Aggravated Punishment Act

Prohibitions (Bodily Injury) and Violation of the Road Traffic Act (Non-accidents)

A

Kim Papn, Compensation (prosecutions), and Mancheon-wons (Court Decision)

Attorney Kim Jong-hwan (Korean)

January 22, 2019

A defendant shall be punished by imprisonment for not less than two years and six months.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

The defendant shall be ordered to place an employment restriction on institutions, etc. related to children and juveniles for five years.

Criminal facts

【Criminal Power】

On May 8, 2015, the Defendant was sentenced to one year from Seoul High Court to be sentenced to imprisonment for habitual and night intrusion larceny, and the execution of the sentence was terminated on December 18, 2015. On July 19, 2017, the Defendant was sentenced to one year from imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thth th th th th th th th th th th th th th th th th th th th

【Criminal Facts】

"2018 Gohap690"

1. Indecent acts by compulsion;

A. On June 29, 2018, around 15:20 on June 29, 2018, the Defendant walked a path before C Association in front of Dongjak-gu Seoul Metropolitan Government, and her left chests of the victim D (the age of 35) that passed around the 20th century, followed by the Defendant’s hand, and led the said victim to indecent act by compulsion.

B. On June 29, 2018, around 15:30 on June 29, 2018, the Defendant walked along the way in front of the F Child Care Center located in Dongjak-gu Seoul Metropolitan Government, and her left chest of the Victim G (A, 31 years of age) was sent back to the Defendant’s hand, thereby committing indecent act by compulsion.

2. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

On June 29, 2018, at around 15:25, the Defendant walked a path in the vicinity of the village bus stops in front of a middle school located in the Dongjak-gu Seoul Metropolitan Government H on June 29, 2018, and her left chests of the victim J (the age of 14) who was a juvenile who was living in the middle school located in the vicinity of the village bus stops in Dongjak-gu Seoul Metropolitan Government, was forced by indecent act by force.

3. Public performance and obscenity;

On June 29, 2018, around 15:35, the Defendant was in high school located in the Dongjak-gu Seoul Metropolitan Government H, and was in the public obscenity by putting off the boom and clothes in front of the majority of citizens, women, and women, and exposing her sexually and her part of body and her part of body.

"2018 Gohap1120"

The defendant is a person who is engaged in driving a K5-car.

1. Crimes against victims L (the first accident);

On June 6, 2018, the Defendant driven the above car at around 14:45, and proceeded along four-lanes in front of the Dongjak-gu Seoul Metropolitan Government Mtel, according to the city interest of four-lanes in front of the Dongjak-gu Seoul Metropolitan Government Mtel, according to four-lanes from the direction of the Gro Digital Authority.

At the same time, vehicles are driven slowly due to a large volume of traffic at the time, and the defendant was followed by the Nchier taxi driven by the victim L(65 years old). In such a case, the driver of the motor vehicle has a duty of care to ensure that the driver of the motor vehicle has a duty of care to prevent the accident by reporting well the left and right of the front side and driving the motor vehicle, and to prevent the accident by driving the motor vehicle properly.

Nevertheless, the Defendant neglected to stop at the front time while neglecting this, and did not see the stopping of the said taxi, and led to the shocking part of the front part of the Defendant’s driver’s vehicle in front of the said taxi, which led to the shocking part of the lower part of the Defendant’s driver’s vehicle. Even after the shocking, the Defendant’s failure to operate the brake at time, caused the lower part of the Defendant’s driver’s vehicle more than twice.

The Defendant, by negligence in the course of performing the above duties, sustained injury to the victim, such as salt ties and tensions, which requires treatment for about two weeks, and at the same time, destroyed the above taxi to cover KRW 304,378 (excluding value-added tax) for repair expenses, such as the exchange of back pan-cirs, and escaped without taking necessary measures, such as immediately stopping the taxi and providing relief to the victim.

2. Crimes against victims (the second accident);

The Defendant, while flying away as it is while causing a traffic accident set forth in paragraph (1), was driving at around June 29, 2018, around 14:47, the road of four lanes in front of the Seoul Dongjak-gu Seoul Metropolitan Government P from the border Tri-distance to the intersection.

At the same time, a number of vehicles have stopped in order to ensure the signal atmosphere, so in such a case, the driver of the vehicle has a duty of care to see the right and the right of the front door well, and to safely drive the vehicle's steering system, brakes and other devices in a correct manner, and to prevent the accident by driving it safely.

Nevertheless, the Defendant neglected this and did not discover the fact that Q e-sports cargo vehicles driven by the victim due to neglecting it in front of the Defendant’s front line, and did not run without discovering the fact that the sports vehicle driven by the victim was stopped in front of the Defendant’s front line, and caused the impact on the front part of the Defendant’s driver’s vehicle, and caused the impact on the front part of the Defendant’s driver’s vehicle by negligence that did not timely operate the brake system even after the shock, and caused the impact on two more times on the front part of the Defendant’s driver’s vehicle.

The Defendant, by negligence in the course of performing such duties, tried to immediately stop the relevant cargo vehicle without taking necessary measures, such as providing relief to the victim, while destroying the repair cost of KRW 1,186,364, such as painting, etc.

3. Crimes against R (the third accident).

On June 29, 2018, the Defendant, who caused a traffic accident as described in Paragraph 2, escaped and proceeded with, but around 14:50 on June 29, 2018, the road of one-lane 46-lane in the direction direction from the right edge to the S Elementary School.

At the time, the defendant is a narrow side, and at the time, the defendant is behind the Trocketing taxi driven by the victim. In such a case, the driver of the motor vehicle has a duty of care to overtake the motor vehicle at a safe speed and in a safe manner, such as using the direction indicator, light or horn, depending on the speed and route of the motor vehicle in front and other road conditions.

Nevertheless, the Defendant neglected this and neglected to overtake the above taxi and caused the gap between the left side of the cab and the left side of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string.

The Defendant, due to the above occupational negligence, destroyed the above taxi to take repair costs of 245,160 won, such as wheel chairs exchange with the front wheels, but failed to immediately stop and take necessary measures, such as aiding the victim.

4. Crimes against U.S. (the fourth accident);

On June 29, 2018, the Defendant was running in the direction of W Building on the side road without the separation of the front line of the Dongjak-gu Seoul Metropolitan Government Vlle on June 29, 2018.

At the time, there was a motor vehicle running along one-way road as a narrow one-way traffic road. In such a case, the driver of the motor vehicle has a duty of care to properly observe safety signs, and to safely drive the motor vehicle's steering gear, brakes and other devices and prevent accidents by driving the motor vehicle in a safe manner.

Nevertheless, the defendant neglected to do so and proceeds from the direction of the progress of the vehicle in which it was due to negligence, disregarding and proceeding the sign of prohibition of entry, and conflict with the front part of the victim U.S. (50 years old)'s U.S. drive which stopped at the time of diving with the front part of the driver's car.

The Defendant, by occupational negligence, sustained injury to the victim, such as salt, tensions, etc., which requires approximately two weeks of medical treatment, and at the same time, escaped without immediately stopping the said car, even though it damages KRW 3,210,920 to the repair cost, without taking necessary measures, such as providing relief to the victim.

Summary of Evidence

[2018Gohap690]

1. Defendant's legal statement;

1. Each police statement made to D, J and G;

1. Investigation report (safety of CCTV children - 43,90 in the vicinity of the accident site), investigation report (in the vicinity of the crime scene), investigation report (in the presence of the suspect), investigation report (in the case of reproduction of CCTV data related to the incident), investigation report (in the case ofCCTV video CDs reporting);

[2018Gohap1120]

1. Defendant's legal statement;

1. Each police statement of the R, L, orO;

1. A report on internal investigation (victim U telephone communications), investigation report (report attached to a victim L or U damage estimate), investigation report (report attached to a record and a report on the confirmation of a CD);

1. On-site photographs (to omit the entry of the evidence list Nos. 2, 3, 4, hereinafter referred to as "the evidence list"), traffic accident reports (the fact-finding report), diagnostic reports (the order 20, 21), black images, CDs, vehicle photographs, damaged vehicles (X damaged parts photographs), photographs of damaged vehicles (N), damaged parts of damaged vehicles, CDs, CDs, written estimates (the order 35,36);

【Prior Records at the Time of Sales】

1. References to criminal records (A) and investigation reports (verification of the fact that a repeated crime of a suspect is true) (the sequence 40,42 of the cases);

Application of Statutes

1. Article applicable to criminal facts;

Article 298 of the Criminal Act (the point of each indecent act by compulsion against victim D and G), Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act, Article 245 of the Criminal Act, Article 5-3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 268 of the Criminal Act, Article 148 and Article 54(1) of the Road Traffic Act (the point of each indecent act by compulsion against victim L and U), Articles 148 and 54(1) of the Road Traffic Act (the point of each indecent act by compulsion against victim L,O, R and U)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the Act on the Aggravated Punishment, etc. of Specific Crimes against Victims L and the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes) and the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes against Victims).

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That the proviso of Article 42 of the Criminal Act shall apply to the crimes of violating the Act on the Protection of Children and Juveniles against Sexual Abuse and the crimes of violation of the Act on the Aggravated Punishment, etc.

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [the maximum penalty shall be applicable to concurrent crimes with the punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse]

1. Order to complete programs;

The main sentence of Article 16(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 21(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse [the order to complete a program under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is imposed on each of the crimes of indecent act, so no order to complete a program under the Act on the Protection of Children and Juveniles against Sexual

1. 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 (the defendant has no history of sex offense, and the sex offense of this case has been committed daily, and it is difficult to see that the defendant has a tendency to commit a sexual crime or high risk of repeating a crime. The defendant's age, the motive, means, and result of the crime of this case, the motive, and consequence of the crime of this case, the seriousness of the crime, the profits and preventive effect that can be achieved by the disclosure and notification order to the defendant, and the disadvantages and expected side effects therefrom, shall be comprehensively taken into account all the circumstances such as the defendant's age, the motive, means, and consequence of the crime of this case, the seriousness of the crime of this case, and the disclosure and notification of the

1. An employment restriction order;

The proviso to Article 2 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( March 13, 2018), the main sentence of 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)

Judgment on the argument of the defendant and defense counsel

The defendant and his defense counsel asserts to the effect that the defendant was in a state of mental suffering suffering from weak mental illness, which lacks the ability to discern things or make decisions.

A mental disorder stipulated in Article 10 of the Criminal Act is a biological factor, and needs to be deemed as lacking or reduced in the ability to distinguish things from one another and the ability to control action accordingly due to psychological disorder, as well as mental disorder, other than mental disorder such as mental illness or abnormal mental state. Thus, even if a person with mental disorder is a person with normal mental disorder at the time of committing the crime, such mental disorder cannot be deemed as a mental disorder if he/she had normal ability to distinguish things from one another or to control action (see, e.g., Supreme Court Decision 2006Do7900, Feb. 8

According to the evidence duly adopted and examined by the court, the defendant's symptoms of alcohol dependence prior to each of the crimes in this case and the fact that the defendant was prescribed. However, according to the mental evaluation result, the defendant did not appear to have caused the crime in each of the crimes in this case, and considering the circumstances leading to the crime in this case, the method and contents of the crime, the defendant's behavior before and after the crime, and the defendant's statement about the situation at the time, etc., it does not seem that the defendant did not have a weak state of ability to discern things or make decisions due to mental illness. [ though the defendant was engaged in abnormal behavior immediately after the arrest of the flagrant offender, he did not appear to have the defendant's defense counsel's assertion that "(the victim was out of the victim's mind and panty even after he was investigated on the day of the crime," " was too unsurted because there was a crime," and that " was hard to memory the defendant and defense counsel's attitude to avoid the defendant's past power.

Registration of Personal Information

In a case where a conviction of 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 is finalized, the Defendant is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act (in this case, a sex crime which causes the registration of personal information and other crimes are punished as concurrent crimes pursuant to the former part of Article 37 of the Criminal Act, and the entire sentence is deemed unreasonable. As such, Article 45(4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is not applicable).

Reasons for sentencing

1. Scope of applicable sentences under law: Two years to fifty years; and

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

○ Minority Crimes: Crimes of Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

[Determination of Kind] General Standard on the Crime of Indecent Act by Compulsion (subject to 13 or more years of age) Case 2 (Indecent act by force, such as by force or by force on residence, etc. according to relatives relation/special indecent act by force)

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment from August to April (* descriptive Criteria: Reduction of the lowest sentence by juvenile indecent act to 2/3, and the upper limit to 2/3)

○ Minority 2: Indecent act by compulsion against the victim G

[Determination of Type] Crimes of Indecent Act by Indecent Acts by Force (General Indecent Acts by Force) on the General Standards for Sexual Crimes

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment from 6 months to 2 years

○ The third concurrent crime: the crime of indecent act by compulsion against victim D

[Determination of Type] Crimes of Indecent Act by Indecent Acts by Force (General Indecent Acts by Force) on the General Standards for Sexual Crimes

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment from 6 months to 2 years

○ The scope of final sentence due to the aggravation of multiple offenses: Determination of imprisonment for a year and eight to five years;

The Defendant escaped without taking relief measures, etc., even during the period of repeated crime, without causing a traffic accident at least four times. Moreover, the Defendant committed an offense, such as committing an indecent act against victims or sexual intercourse in the vicinity of a school where many and unspecified persons have come to know, and the nature of the offense is not good. As such, the victims of an indecent act or persons who witness the Defendant appear to have caused considerable mental shock and sexual humiliation, and were not able to have been used by the victims of indecent act.

However, the defendant recognizes all of his mistakes and reflects them. The victims of traffic accidents agree with each other and received a letter of favor from the victims.

In addition, the defendant's age, occupation, character and conduct, family relationship, the circumstances and results of the crime of this case, and all of the sentencing conditions shown in the records and arguments, such as the circumstances after the crime, shall be comprehensively considered as ordered.

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young