2019Gohap155 Similar Rape and Violation of the Medical Service Act

A

In the order of post-prosecution (prosecution) and the case of prosecution;

Attorney O Jong-min (National Assembly)

May 29, 2019

A defendant shall be punished by imprisonment for not less than one year and six months.

To order the defendant to complete the sexual assault treatment program for 40 hours.

For three years, an employment restriction shall be ordered to a child or juvenile-related institution, etc. for the defendant.

Punishment of the crime

1. Similar rape;

At around 21:00 on June 13, 2018, the Defendant: (a) taken charge of the body of the victim D (W, 37 years old) who was found to be a customer at the 'C' business place located on the Gangnam-gu Seoul and the second floor of the building, and had the victim take charge of the body of the victim D (W, and 37 years old), and had the victim take care of the victim's fingers into the sound book of the victim, and had the victim take the part of the victim as soon as possible, and had the victim take the part of the victim, thereby committing similar rape.

2. Violation of the Medical Service Act;

No person shall establish a massage treatment establishment without obtaining the recognition of qualification for the massage operator.

Nevertheless, the Defendant did not obtain the recognition of a Marine’s qualification, but did not receive certain expenses from November 2016 to around that time, and operated a massage business by receiving certain expenses from many unspecified customers and receiving them as above, by using the said D’s shoulder, elbs, etc., 200,000 won for the 10-time use of the said D’s 10-time use by hand and elbs, etc.

As a result, the Defendant established a massage treatment facility without obtaining the recognition of the qualification of the massage operator.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of witness D;

1. A protocol concerning the examination of partially the defendant's prosecution;

1. A protocol concerning the examination of partial police officers of the accused;

1. Statement of each police statement regarding D;

1. Details of accusation and text messages;

Application of Statutes

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

Article 297-2 of the Criminal Act (the point of similar rape), Article 88 subparag. 3, and Article 82(1) of the Medical Service Act (the point of inside, inclusive, the point of inside, and inclusive, the purpose of non-qualified profit-making)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Concurrent Crimes to the extent that the punishment is aggregated with the long-term punishment of two crimes prescribed in the former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Rape) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing):

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

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or notify information; Article 49(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 50(1) proviso of the Act on the Protection of Children and Juveniles against Sexual Abuse (Article 49(1) has no record of being punished once by a sexual crime; however, there is no record of exceeding a fine; the defendant’s sentence is sentenced against the defendant; personal information registration; and orders to complete a sexual assault treatment program would have the effect of preventing recidivism; and the defendant’s age, environment, social ties, family relationship, anticipated side effects that the defendant suffers due to the defendant’s order to disclose or notify his/her personal information; and in full view of all other circumstances such as the defendant’s age, environment, anticipated side effects

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); the main text 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 assertion of the accused and the defense counsel concerning criminal facts

1. Summary of the assertion

Although there is a fact that the defendant committed an act listed in paragraph (1) of the crime committed against the victim, such act was conducted with the victim's explicit and implied consent, so the crime of similar rape is not established against the

2. Determination

In light of the following circumstances acknowledged by the evidence duly adopted and examined by this court, the victim cannot be deemed to have consented to the act of similarity with the defendant, and the defendant also seems to have been aware of the same, so the fact that the defendant has committed a similar rape can be sufficiently recognized. The defendant and the defense counsel's assertion is not acceptable.

A. 1) The Defendant and the victim are identical, and the Defendant stated that “I will see the victim’s sound side before the Defendant committed a similar act,” and that the victim respondeded to “I panty” and made a statement that I panty by themselves. In addition, the Defendant stated that the victim consented to the act of similarity and the victim stated that I see that I would see the Defendant’s hump., and that I see this.

2) The defendant made a statement to the effect that he had no conversation with the victim about 30 minutes of sexual intercourse with regard to sexual conduct that will be made before putting the victim's fingers into the sound book, such as 'the defect of sexual intercourse and 'the escape to be made', and that he had been asked about 30 minutes of sexual intercourse like ordinary times (Evidence records 97, 102, 156 pages). In addition, there is considerable doubt as to whether there was a circumstance that the act of similarity was done at the time even according to the defendant's above statement. In addition, 'C' is a place where 'C' is a face bid and 'carfic', so it is not a place where it can be expected that sexual contact can be generally made, ② the victim first visited the defendant as a customer on June 4, 2018, which was about 10 days prior to the date on which the crime was recorded, and 'the victim received the defendant's inquiry from the defendant's first to the extent that it was ‘the victim'.

3) In addition, the Defendant made a statement to the effect that at the time, the victim’s left top part of the bridge was mashed, and the victim and the victim met the above Section A.1., and that he left the mags and returned to the head of the mags (Evidence Record 97 pages). The part where the Defendant was magsing the mags is close to the mags, and the victim was in a place near the mags and experienced the mags by taking the fegs with his clothes away from the mags in the past, and after the mags and dialogues with the victim, the victim’s statement that the Defendant received the Defendant’s inquiry to the effect that he would flag the mags of the mags.

4) Furthermore, the Defendant made a statement to the effect that the victim was knee and knee in a clearly exposed state (Evidence No. 157 pages). If the Defendant and the victim wished to engage in a similar act under mutual agreement, then the victim’s behavior seems to have been extremely rarely followed by avoiding kne and clearly taking advantage of knee, and waiting the Defendant. In addition, the Defendant also recognized that the Defendant suspended the similarity of the victim’s sexual intercourse by putting the victim’s hand on knee and knee in the victim’s sexual intercourse (Evidence No. 99). In full view of the above circumstances, if the Defendant and the victim were to have engaged in a similar act under mutual agreement, all of the above circumstances cannot be interpreted as having consented to the act of similarity between the Defendant and the victim.

B. 1) On the other hand, the victim did not immediately express his intention of refusal at the time of the defendant's interview, and was scheduled to me after the act of similarity was interrupted. However, the victim did not know whether he was sexual assault at that time, and the defendant's act was found to be fright upon the house. At the latest time, "C" had only the defendant and the victim at the business establishment, and the above business establishment stated to the effect that "it was difficult for the victim to fright because the second end of the building in question and the second end of the building in question, and the second end of the building in question were cut off (Evidence evidence 28, 34, 113 pages), and the defendant also stated to the effect that "the victim's marina was 9 hours at that time, the office of the victim was 00 p.m., and 100 p.m., the victim was operated as a pre-contract, and 50 p.m., the victim did not have any evidence for each corridor.

2) The victim previously received approximately three times a normal marina from the Defendant. At the time of the instant case, the Defendant was her her m, her part, and her part, and the Defendant was her her m, and the Defendant was faced with her her part, and the Defendant was forced to have any physical contact about the surrounding part, so it seems difficult for the victim to be aware of whether her indecent act was committed immediately. Therefore, the victim’s behavior that did not immediately refuse her marbling can be sufficiently understood, taking into account the time when the Defendant and the victim stated, the time when the Defendant was her mar, the 'C' business location, and the psychological condition of the victim who suffered from a sudden sexual assault, it cannot be readily concluded that the victim was unable to answer or allow the act of similarity. According to the Defendant’s statement, according to the Defendant’s statement, the victim also stated that “after the end of the marina on the day of the instant case, the victim was aware of such fact.”

C. 1) The Defendant asserted that “the victim, who entered a test color string, suffered sexual impulses on the day of the instant case. The Defendant proposed the similarity act that the victim voluntarily panty, was taking the Defendant’s sexual organ, and was doing so too naturally and naturally (Evidence Records 94, 157 pages). However, even according to the Defendant’s statement, the Defendant’s act stated in the facts of the crime was not particularly made by the victim while carrying out a statement, and the part that the victim did not obtain the victim’s explicit consent on the act of similarity and was merely made by the Defendant 158 pages by her hand (Evidence Records 158 pages). Other circumstances (the victim’s clothes and natural behavior) asserted that the victim consented to the act of similarity are generally difficult to be seen as the grounds for the Defendant’s consent.

2) In addition, the defendant and the victim are merely between marina branch offices and customers, and the victim answer the question of 's simply 'N' and 'N', and the defendant was able to take over the defendant's hand during a cleaning agent, and the victim was aware that there was an agreement on the act of similarity between them, or that the victim was waiting for the act of similarity with the victim. It is difficult to understand the defendant's assertion that it was a common sense.

3) Furthermore, the Defendant made a statement to the effect that he was sentenced to a fine due to an indecent act committed by a customer while making a Mags as seen in the preceding case, and that agreement was reached at the time (Evidence Records 101 pages). In light of the circumstances seen earlier and the Defendant’s experience, it cannot be deemed that the Defendant was mistaken for the victim to have consented to the act of similarity.

라. 피해자는 이미 피고인으로부터 수차례 마사지를 받아 만족하였고, 피고인의 업소에 200만 원 상당의 회원권을 결제한 상태였다. 또한 이 사건으로부터 약 10일 후인 2018. 6. 25.경 녹음기를 켠 채 'C' 업소에 한차례 방문한 이후 더 이상 마사지를 받으러 가지 않았고, 2018. 7. 26.경 피고인에게 항의를 하고 이 사건을 고소하였다. 피해자에게 피고인을 허위로 고소할 동기가 있다고 보기 어렵고, 위와 같은 피해자의 고소 경위에 특별히 의심스러운 사정은 발견할 수 없다.

Registration of Personal Information

In a case where a conviction of a crime of similar rape in the judgment becomes final and conclusive, the defendant constitutes 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 defendant is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act. The period of registration of personal information of the defendant is 15 years pursuant to Article 45(1)3 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. In full view of the crime of similar rape which causes the registration of personal information, the punishment of the crime of similar rape which causes the registration of personal information, the severity of the crime, etc., the period of registration of personal information in this case is deemed unnecessary to determine the period of registration of personal information more short than

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment with prison labor for a period of one year to 16 months;

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

(a) A crime of similar rape;

[Determination of Punishment] A. Violation of the General Criteria for Sex Offenses (subject to at least 13 years of age)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 1 year and 8 months to 3 years and 4 months (sex similar rape shall be included in one category, but the upper limit and the lower limit of the range of sentence shall be reduced to 2/3).

(b) Violations of the Medical Service Act: No sentencing criteria;

(c) The scope of final sentence according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than one year and eight months (the crime for which the sentencing criteria are set and the crime for which no sentencing guidelines are set are concurrent crimes under the former part of Article 37 of the Criminal Act; therefore, only the lower limit of the scope of sentencing

3. Determination of sentence;

The crime of this case was committed in a state where the Defendant was not recognized as a Marine, and the victim was married to a Marine for profit from November 2016, and the crime was committed with similar rape. The victim is likely to have caused considerable shock and sense of shame by taking the body of the Defendant. Nevertheless, the Defendant refused the crime of similar rape in a consistent manner with the defense that the Defendant was unable to obtain, and was unable to obtain a letter from the victim, and thus, it is inevitable to punish the Defendant. The Defendant has the history of having been punished under the same law.

However, considering the fact that the defendant recognizes the violation of the Medical Service Act, the fact that the defendant has no record of exceeding the fine, etc., the defendant's age, character and behavior, environment, motive and background of the crime, means and consequence of the crime, and the circumstances after the crime, etc., all of the sentencing conditions shown in the argument of the case shall be taken into account, and the punishment as ordered shall be determined by the

The presiding judge, the Gimology judge

Judge Lee Sung-sung

Judges Lee private-young