2018Gohap182 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Compulsion)

2018. Before maturity16 (Joint Attachment Orders)

A

The amount of personal injury (prosecutions, requests for attachment orders), the hand-time (public trial)

Attorney Noh Sung-jin

May 17, 2019

1. The defendant shall be punished by imprisonment for two years;

2. The defendant shall be ordered to complete a program for treating sexual assault for 40 hours.

3. The Defendant’s employment restriction shall be ordered to a child or juvenile-related institution, etc. for seven years. 4. The Defendant’s request for the instant attachment order is dismissed.

Criminal facts

The defendant is a teacher teaching sports, autopsyology and Japanese language in ○○ High School located in the Dong-gu Busan Metropolitan City, and the victim B (n, 17 years of age), C (n, 18 years of age), D (n, 18 years of age), E (n, 18 years of age), F (n, 18 years of age) is a student of the above high school.

1. Crimes against the victim B;

A. At around 11:00 on March 2016, the Defendant was forced to leave the Defendant’s body by doping that the victim (at that time, 15 years of age) would take the oral course and take the way to correct the attitude of the party in which the victim (at that time, she would take the oral course of the party, and she would correct the attitude.

B. On August 24, 2017, around 09:30 on August 24, 2017, the Defendant listened to the phrase “I will attend the above school” from the victim (at that time 17 years of age) who was aware of, and “I will attend the school well,” and “I will in the future, I will use the victim’s her her her her her her her her her her her her her her her her her her her her her sher

2. Crimes against victims C;

A. On July 11, 2016, the Defendant: (a) around 11:00 in the class of the high school; (b) on a flat to explain the body of a person during the class, caused the victim (at that time, 16 years of age) to be placed on the wall; (c) made the victim’s dead interest in hand; and (d) placed the victim on his/her gate, and (e) took the victim on his/her gate, and became part of the part of the victim’s son.

B. On April 11, 2017, the Defendant: (a) around 11:00 on the lower-class high school corridor; (b) on the part of the victim (at that time, 17 years of age) reported the personnel management to himself; and (c) entered the victim’s arms by hand.

Accordingly, the defendant committed an indecent act on the part of the victim who is a child or juvenile on two occasions.

3. Crimes against victims D;

A. On September 14, 2016, around 14:00, the Defendant got off the victim’s doping, shoulder, and saliva by doping that the Defendant would allow the victim who talks with her natives (at that time, 17 years of age) in the class of the high school.

B. On March 1, 2017, around 08:30, the Defendant: (a) led the victim, who was aware of, in his/her right by hand, pushed the victim into his/her body and pushed the victim into his/her body, and her fingers, with his/her fingers; and (b) called the victim’s fingers. The Defendant reported the victim (the age of 17 at that time) in the above high school class on March 3, 2017, at around 09:00, when the locks were less, at around 09:0, the victim (the age of 17 at that time), who was under the condition of less locking (the age of 17 at that time), was “hy,” and the victim’s right-hand west, was frighted by putting his/her fingers into his/her body and her breasts.

D. At around 16:30 on March 2017, the Defendant completed a course of study before the high school office, and completed a course of study, and reported the victim (the age of 17 years at that time) who passed before the school office to go to the office, and carried the victim’s body toward his own body by making the victim’s blance.

마. 피고인은 2017. 4. 초순 16:30경 위 고등학교 교실에서, 교내 환경미화를 위해 교실에 남아 있는 피해자(당시 17세)에게 "준비물을 사 오라"고 말하며 손바닥으로 피해자의 엉덩이를 치고, "빨리 갔다 온나"라고 말하며 피해자의 허리를 감싸 안았다. 바. 피고인은 2017. 4. 중순 12:00경 위 고등학교 교무실에서, 음악을 틀기 위해 교무실에 온 피해자(당시 17세)의 목을 일명 헤드락 자세로 감싸 피해자의 몸이 숙여지게 하였고, 이에 피해자가 "하지 마세요"라며 몸을 뒤로 빼자, "어디서 빠져 나오냐"라며 손가락으로 피해자의 배를 쿡쿡 찔렀다.

사. 피고인은 2017. 7. 중순 10:00경 위 고등학교 교실 앞 복도에서, 책상과 의자를 옮기고 있는 피해자(당시 17세)에게 다가가 피해자가 입고 있는 하복의 가슴 쪽에 부착된 주머니 속에 자신의 손가락을 집어넣어 비볐다.

H. On August 1, 2017, the Defendant: (a) around 08:40, around the lower order of 08:40, sent the victim’s body back to the Defendant a letter message that the victim was unable to enter a school due to the same school-friendly offer G, thereby leading the victim to the body of the victim by hand.

Accordingly, the defendant committed an indecent act against the victim who is a child or juvenile at least eight times.

4. Crimes against victim F;

At around 14:00 on August 25, 2017, the Defendant committed an indecent act against the victim, who is a child or juvenile, by forcing him/her to put his/her head on a bend and lying-in, on the ground of a victim (the age of 18 years at that time) who is headed above high school health classes.

5. Crimes against victims E;

The Defendant, at around 14:30 on the same day as Paragraph 4, committed an indecent act by force against the victim, who is a child or juvenile, such as lying her head on the her flock, on the string of 17 years old at the time), at the same place as Paragraph 4.

Summary of Evidence

1. The defendant's partial statement in the first protocol of trial;

1. Each legal statement of witness E, F, C, and D;

1. The statements made by each police officer in relation to E, F, C and D contained in the video CD;

1. A report on internal investigation (Attachment of photographs), and a report on internal investigation (2. Specific time limit for damage inflicted on the victim B);

1. Application of the Acts and subordinate statutes of photograph (record No. 38 of investigation record);

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act (the occupation of indecent acts by children and juveniles, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of all the circumstances, such as the Defendant’s age, family environment, social relationship, criminal history, and situation before and after the crime, it is difficult to conclude that the Defendant committed a sexual assault against many victims due to the instant crime, but there is no same criminal record prior to the instant crime, and thus, the Defendant’s risk of recidivism is difficult to readily conclude that the Defendant has a criminal record of sexual assault, and the Defendant’s execution of imprisonment with prison labor, personal information registration, and sexual assault treatment program can have an effect on the prevention of recidivism. In addition, considering the following: (a) the Defendant’s age, family environment, social relationship, criminal history, and the disclosure order or notification order appears to have relatively less social benefits and effects that can be achieved by the Defendant compared to the anticipated side effects of the Defendant’s personal information disclosure or notification order, it is determined that there is a special reason for not to disclose or notify the Defendant’s personal information. Therefore, the Defendant is not subject to the disclosure order or notification order).

1. Determination on whether the crime of indecent act by compulsion under the main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse is established

1. Summary of the defendant and his defense counsel

The Defendant does not have committed the same act as that stated in paragraphs (1), (2), and (3) of the facts constituting an offense against the victim B, C, and D. It is true that the Defendant committed an act identical to that stated in paragraphs (4) and (5) of the facts constituting an offense against the victim F and E. However, it does not constitute an indecent act under the circumstance that the Defendant was not aware of it (the first protocol of trial).

Even if there were physical contacts, such as the facts stated in some of the facts constituting the crime, it does not have sexual intent or purpose due to physical contacts that occurred in the process of inducing or guiding the victims in light of the fact that the defendant maintained a friendly relationship with the students including the victims.

2. Review:

A. In a case where an indecent act causes sexual humiliation or aversion to the general public and infringes on the victim’s sexual freedom. Whether an act constitutes an indecent act ought to be carefully determined by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim, circumstances leading to the act, specific form of act, objective situation surrounding the crime, and the sexual moral sense in the age thereof. Moreover, it does not require any subjective motive or objective to satisfy the sexual desire to bring about a sexual humiliation (see, e.g., Supreme Court Decision 2013Do5856, Sept. 26, 2013). In addition, in determining the credibility of the victim’s statement supporting the facts charged, the court may reject the victim’s statement from being made in compliance with the rationality, logic, appearance, or rule of experience, or whether it conforms with the victim’s sexual moral sense, as well as whether the victim’s statement was made in front of the judge, and whether it conforms with the witness’s testimony or testimony that is open to the public court after being taken an oath, and whether it is objectively 2 of credibility or credibility.

B. In full view of all the following circumstances acknowledged by the evidence examined by the court in light of the above legal principles, the defendant can sufficiently recognize the fact that he takes charge of or she was her body part against his will, such as her mare, chest, shot, and shot, against his will, as stated in the facts constituting the crime in the judgment of the court. Furthermore, the defendant's physical contact with the victims is objectively against the general public and is against good morals and thus infringing upon the victim's sexual freedom and thus, it is sufficiently recognized that the victim's intentional act is also sufficiently recognized.

1) With respect to the main part of the damage from the police investigation to the court, the victims have made a relatively detailed and consistent statement regarding not only information such as the Defendant’s speech and behavior, surrounding circumstances, and their response and appraisal about the Defendant’s behavior at the time of physical contact with the Defendant at the time of physical contact, but also on the three parts where it is difficult for the victims to easily take care of without direct experience. There is no inconsistency or unreasonable part in the content itself in the statement of the damage part. Furthermore, there is no conflict or unreasonable part in the statement of the damage part. Moreover, the victims statement that the victims suffered damage from the Defendant during school life, such as class hours, and there is no big difference in the content or form of the damage. It is difficult to find any special motive or circumstance to deem that the victims made a false statement against the Defendant in response to such damage. Accordingly, it is determined that there is credibility of the victims’ statement.

2) Although the entire statement of the victims, there are parts that are somewhat inconsistent or unsatisfy consistent with the exact time of damage or the detailed and incidental situations surrounding the time. However, this appears to be natural phenomenon according to the limits of memory at the time when several months have elapsed since the date of occurrence of the case, and all victims have clearly and consistently stated the damage damage itself. In light of the overall statement content and attitude of the victims, such parts alone are not enough to deny the credibility of the victims’ statement.

3) The victim B directly observed the facts of partial damage to the victim D (the part 3-C of the crime in the market) and the defendant stated that he met H's bucks which is a student transferred to Yangsan at present. This corresponds to the victim D's statement and the police investigation process (the victim's H's refusal to make statements) confirmed by H. The defendant and the defense counsel pointed out that the victims did not want to inform and help the victims of the damage by immediately making a report. However, in light of all circumstances such as the victim's age and gender, the personal relationship between the defendant and the student and the victim, the situation at the time of the damage, etc., the victims appeared to have been seriously deteriorated due to their physical contact, and that they did not talk about the victim's body immediately or his opinion in the trial, and that they did not talk about the victim's body, and that they did not have to talk about the victim's body and the victim's body, and that they did not talk to the police and the defendant's body.

5) In particular, regarding the criminal facts Nos. 1, 2, and 3 of the judgment, the Defendant and the defense counsel point out the following facts: (a) there was no witness even at a place where another student exists; (b) there was no frequent contact between the Defendant, the victim B, and D, such as a telephone call or text, as the victims claimed, and (c) the victim D had a malicious sentiment against the Defendant after the early retirement problem; and (d) it is suspected that the fact of damage was false or exaggerated.

However, in the above case, ① the physical contact of the defendant to the victims is deemed to have been done in such a way that it can not be seen or revealed to others during daily school life, such as class, living standard, and dialogue with students (the victim also stated to the effect that ‘other students' are not well-known, or he knows that the physical contact of the defendant, such as the crime in fact, is rare, with other students as stated in the judgment). The victim B and other witnesses, and the mother constantly talks about the defendant's physical contact with the victim; ② in the above case, it is not directly related to the crime in the above case; ② the defendant was called to the victim B on April 18, 201, about 20:35 minutes by phone call on April 18, 2017, and about 20:30 minutes by telephone call on March 13, 2017, and about 20:38:24 minutes by telephone call on March 20, 2017.

In light of the following circumstances: (a) it is difficult to view that the victim's statement is false because he/she is under the burden to make a legal testimony after undergoing an investigation; (b) he/she is under the risk of being punished for perjury; and (c) it is difficult to view that he/she has made a false statement on the fact of damage that he/she is eight or more times (in fact, D did not enter any damage in the survey on the Defendant's indecent act at a high school in the police investigation but did not respond to the investigation at the police's request that ascertains the content of damage through other victims' statements during the police investigation process; and (d) it is difficult to find any special reason or circumstance that D has made a false statement in the course of the cross-examination by the defense counsel conducted in this court; and (c) it is difficult to reject the credibility of the victim's statement solely on the grounds of the above ① or each of the above circumstances.

6) Meanwhile, the Defendant stated to the effect that, as to the facts constituting the crime Nos. 4 and 5 of the judgment, “the Defendant did not recognize the fact that she had 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 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 her her her her her her her her her

7) The victims are female students aged 15 to 17 at the time of the instant case, and juveniles at the time when they are expected to be able to honor, have physical contact, and have sensitive to sexual expression. Even if the Defendant as a teacher was in a position to guide the victims who are students, it is reasonable to view that the Defendant’s act of spreading or contact the physical parts of the victims, such as chests, bucks, knicks, bucks, arms, etc., regardless of the students’ will, in the absence of sufficient consensus on the necessity of the guidance accompanied by physical contact with the victims, constitutes an act of causing sexual humiliation or aversion to the general public in the same place as the victims, and in itself, infringing upon the victims’ sexual freedom.

Even if the Defendant committed each act stated in the facts constituting the crime as stated in the judgment in the course of guiding or punishing students, it is difficult to view that the Defendant’s act of speaking and physical contact with the same degree as the above facts constituting the crime is within the permissible range by means of education or discipline.

1. Reasons for sentencing: Imprisonment with prison labor for a period from 2 years to 45 years;

2. Scope of recommendations based on the sentencing criteria: Imprisonment with prison labor for a period of two years and eight months from one hundred to ten months.

(a) The first crime (the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse concerning the third matters at the time of sale);

[Determination of Punishment] The general standard of the crime of indecent act by compulsion (subject to the age of 13 or more) on sexual crimes [Type 2] Indecent act by indecent act by indecent act by blood, etc. / Special indecent act by compulsion

[Special Aggravation] Aggravations: Crimes of continuous and repeated crimes against multiple victims, crimes committed by persons obligated to report or persons engaged in protective facilities, etc.

[Recommendation Area and Recommendation Scope] Special Priority Area, 2 years and 8 months to 7 years [including indecent act by force against juveniles (including deceptive and indecent act by force against juveniles) are included in two types, but the upper limit and lower limit of the scope of sentence shall be reduced to 2/3];

(b) Second crime (the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse, which is set forth in paragraph (3) at the time of sale);

[Determination of Punishment] General Standards for Sex Offenses / Crimes of Indecent Act by Compulsion (subject to 13 years of age or older) [Type 2] Indecent act by blood relatives / Indecent act by indecent act, such as personal intrusion/special indecent act by compulsion

[Special Aggravation] Aggravations: Crimes of continuous and repeated crimes against multiple victims, crimes committed by persons obligated to report or persons engaged in protective facilities, etc.

[Recommendation Area and Recommendation Scope] Special Priority Area, 2 years and 8 months to 7 years [including indecent act by force against juveniles (including deceptive and indecent act by force against juveniles) are included in two types, but the upper limit and lower limit of the scope of sentence shall be reduced to 2/3];

(c) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, falling under paragraph (1) 1 at the time of a third crime board;

[Determination of Punishment] The general standard of the crime of indecent act by compulsion (subject to the age of 13 or more) on sexual crimes [Type 2] Indecent act by indecent act by blood or by personal intrusion, etc. / Special indecent act by compulsion

[Special Aggravation] Aggravations: Crimes of continuous and repeated crimes against multiple victims, crimes committed by persons obligated to report or persons engaged in protective facilities, etc.

[Recommendation Area and Recommendation Scope] Special Priority Area, 2 years and 8 months to 7 years [including indecent act by force against juveniles (including deceptive and indecent act by force against juveniles) are included in two types, but the upper limit and lower limit of the scope of sentence shall be reduced to 2/3];

(d) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment for two years and eight months to 12 years (the upper limit of the first crime + the upper limit of the second crime + 1/2 of the upper limit of the second crime + 1/3 of the upper limit of the third crime);

3. Five years of imprisonment with prison labor for a ruling of sentence (public prosecutor's opinion); and

[Judgment] 2 years of imprisonment

Although the Defendant, as a teacher, was in a position to protect the victims who are juveniles from sexual crimes, etc., the Defendant committed an indecent act against the victims who were under his/her guidance by taking advantage of such position. The Defendant committed an indecent act against others by taking advantage of his/her opportunity to give lessons, life guidance, etc. In light of the specific methods and details of the crime, and the negative impacts of the crime, such as that her jum, chest, buckbucks, etc. were exposed to sexually revealed to others, and that such crimes were continued for a considerable period of time, and that her sexual identity and values may adversely affect the establishment of sexual identity and values of the victims who are juveniles. Most victims seem to have a close relationship with the Defendant, and that the Defendant, the victims of the instant sexual instrument and their family members received from the victims of the sexual instrument and their family members, were considered to have suffered significant emotional impulse, salutism, sexual humiliation, and sexual humiliation.

However, there is no special criminal record except that the defendant has been punished by a fine for a crime of different types, and the defendant shall support his/her wife and children who have not yet completed his/her studies.

In addition, taking into account the various sentencing conditions revealed in the course of the trial of this case, such as the age, character and conduct, intelligence, environment, career, family relationship, etc. of the defendant, the sentence against the defendant shall be determined beyond the lower limit of the sentence range recommended in the sentencing guidelines

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is 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 thus is obligated to submit personal information to the competent agency pursuant to Article

Judgment on the request for attachment order

1. Summary of request;

A person subject to a request for attachment order (hereinafter referred to as a "requester") committed by indecent act against a victim who is a child or juvenile, as indicated in the judgment, and committed a sexual crime more than twice, and has committed a sexual crime and committed a sexual crime against a person under the age of 19 years. In light of the background and method of the crime, the character and conduct of the respondent, etc., the respondent is likely to recommit a sexual crime. Therefore, it is necessary to attach an electronic tracking device to the respondent and impose matters to be observed.

2. Review:

The risk of recidivism of a sexual crime as prescribed in Article 5(1) of the Electronic Monitoring Act means the possibility of recidivism is insufficient solely with the possibility of recidivism, and there is a probable probability that the person subject to the request for an attachment order may injure the legal peace by committing a sexual crime again in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the request for attachment order, the criminal conduct prior to the crime, the motive, means, circumstances after the crime, and the outline of the crime. Such determination is based on the time of the judgment (see Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 2010).

In full view of the following circumstances revealed by the record, namely, ① there is no history of sexual crime against the respondent, ② the risk of a comprehensive recidivism as a result of the investigation conducted prior to the claim against the respondent is assessed as an intermediate level; ③ the fact that there is no discovery of sexual cognitive distortion that the respondent is exposed to the above investigation result; ④ the effect of recidivism is expected to be effective in the course of imprisonment with prison labor and sexual violence treatment programs; ④ the completion of the course alone is expected to a certain degree of recidivism; ⑤ the support environment for the respondent, such as the relative with his family members, etc., it is difficult to readily conclude that the evidence submitted by the prosecutor alone is a considerable probability for the respondent to destroy the legal reputation by committing a sexual crime again in the future.

Thus, the request for the attachment order of this case is dismissed in accordance with Article 9 (4) 1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

무죄부분 공소사실 제3의 바항 중 가슴을 스치듯이 만졌다』라는 부분1)은, 피해자 D의 진술에 의하더라도 '피고인이 피해자의 배를 쿡쿡 찌르니까 움츠리거나 피하면서 피해자의 가슴이 피고인의 손에 닿았다'라는 것(수사기록 제66쪽, 피해자 D의 증언 녹취서 제12쪽)으로서, 그러한 피해자의 진술만으로 피고인이 피해자를 추행하려는 의도로 피해자의 가슴을 만졌다는 점이 합리적인 의심의 여지없이 증명되었다고 보기 어렵고, 달리 이를 인정할 증거가 없다.

Therefore, the part of the facts charged that the above chest was delivered as if the defendant was found to be guilty under the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of a crime. However, as long as the facts charged in the crime No. 3 (B) of the Act on the Protection of Children and Juveniles against Sexual Abuse were found guilty of a crime against the Act on the Protection of Children and Juveniles against Sexual Abuse,

The presiding judge and the senior judge;

Judges Kim Jae-sung

Judges Kim Jong-hee

1) On April 12:00, the Defendant’s title at the pertinent high school teaching room around 12:0, in the middle of April 2017, of the victim (at that time, 17 years of age) who had worked in the teaching room for music molding.

The body of the victim was well aware of the body of the victim who was satisoned at the satisfy, and the victim was "mathy" and the body was satisfyd, "Isnish" and "Isnish."

라며 손가락으로 피해자의 배를 쿡쿡 찌르면서 가슴을 스치듯이 만졌다.』라는 공소사실의 마지막 부분인 '가슴을 스치듯이

It is the part of ‘the fact'.