2019Gohap183 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Compulsion)

A

Kim Jong-ju (Public Prosecution), Lee Jong-soo (Public trial)

Law Firm LLC, Attorneys Lee Chang-hun, et al.

January 9, 2020

A defendant shall be punished by imprisonment for one year.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to attend a sexual assault treatment program for 40 hours.

The defendant shall be subject to the restriction on employment for five years in institutions, etc. related to children and juveniles and welfare facilities for persons with disabilities.

Criminal facts

The Defendant is a person operating a restaurant in the name of “C” in Jeju-si B, and the victim D (the 16-year age), who is a child or youth, worked as an employee in the above restaurant from April 2019. On May 27, 2019, the Defendant: (a) around 17:30, the Defendant: (b) placed the victim on the GWz car driven by the Defendant before the FF High School located in Jeju-si; and (c) placed the victim into the above restaurant, and (d) placed the H apartment at Jeju-si. The Defendant committed an indecent act on the part of the victim’s left hand by putting the victim into the said restaurant.

2. On May 27, 2019, the Defendant, at around 22:30 on May 27, 2019, committed an indecent act on the victim’s hand by putting the victim’s left hand on the top of benz car operated by the Defendant, while putting the victim’s house at the victim’s seat, and putting the victim’s hand on the victim’s hand, and putting the victim’s hand alone on the victim’s hand.

Summary of Evidence

1. Defendant's legal statement;

1. Legal statement of a witness I;

1. Statement made to D by the police;

1. Written statements prepared by the D and J;

1. Investigation report (as regards vehicles that are used for committing a crime), investigation report (as to the confirmation of the details of the vehicle employed by the victim);

Application of Statutes

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 (Appointment of Imprisonment)

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the penalty for concurrent crimes prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse due to a crime with heavier criminal facts in the judgment of the court below)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Order to attend lectures;

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

1. The main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 2 of the Addenda to the Welfare of Disabled Persons Act (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3(1) of the Welfare of Disabled Persons Act;

1. Exemption from an order to disclose or notify information;

In full view of 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 fact that the defendant has no record of punishment for sexual assault crime in the past and it is difficult to readily conclude that the defendant is in danger of recidivism, and the defendant's personal information registration and lecture attendance order, etc. alone appears to have a certain degree of effect on the prevention of recidivism; the defendant's age, the type and motive of the crime in this case, the process of the crime in this case, the seriousness of the crime, the severity of the crime, the degree of disadvantage the defendant entered as a result of the order to disclose and notify the defendant's personal information, and the preventive effect of the sexual crime subject to registration that can be achieved therefrom, the registration of personal information with

1. Reasons for sentencing under Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a defendant is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act because he/she is a person subject to registration of personal information under Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes after his/her conviction becomes final and conclusive for each crime subject to registration as indicated in the judgment that is a sex offense subject to registration.)

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

(a) First offense (violation of the Act on the Protection of Children and Juveniles against Sexual Abuse);

[Determination of Type] Sex Offenses, Type 2 (Indecent Acts by Juveniles)

[Special Emotionals] Reductions: In cases where the exercise of tangible power is considerably weak, if the degree of indecent act is weak, it is not punishable.

Aggravations: Victims vulnerable to crimes;

[Scope of Recommendation] From 6 months to 2 years (Special Mitigation Zone) (including indecent acts by deceptive means and force against juveniles) shall be included in two types, but the upper and lower limit of the scope of sentence shall be mitigated to 2/3)

(b) Second crime (violation of the Act on the Protection of Children and Juveniles against Sexual Abuse);

[Determination of Type] Sex Offenses, Type 2 (Indecent Acts by Juveniles)

[Special Emotionals] Reductions: In cases where the exercise of tangible power is considerably weak, if the degree of indecent act is weak, it is not punishable.

Aggravations: Victims vulnerable to crimes;

[Scope of Recommendation] From 6 months to 2 years (including special mitigation areas) (including indecent acts by deceptive means and force against juveniles) shall be included in the category 2, but the upper and lower limits of the scope of punishment shall be mitigated to 2/3). The scope of Recommendation according to the standards for handling multiple crimes: the upper and lower limits of punishment for not less than 6 months but not more than 3 years (the upper limit of crimes 1 + the upper limit of crimes 2).

(d) Scope of the recommended sentences that are modified by the applicable sentencing guidelines: Imprisonment with prison labor for not less than one year but not more than three years (in cases where the lower limit of the range of sentence recommended by the sentencing guidelines is inconsistent with the statutory lower limit of the applicable sentencing guidelines, it shall be in accordance with the statutory lower limit of the applicable sentencing);

3. Determination of sentence: One year of imprisonment and two years of suspended sentence are the case in which the defendant committed an indecent act on the part of the defendant against the juvenile who works as an employee in the restaurant operated by him. Since the case, the victim thereafter complained of considerable mental suffering, such as the defendant's statement that he was unable to properly sleep on his elbow, etc., the responsibility is not less weak. On the other hand, the defendant is recognized as substitute for the crime of this case, there was no record of punishment for the same kind of crime, and the victim did not want the punishment of the defendant, and the wife of the defendant's wife is taking into account the circumstances favorable to the defendant.

In addition, the sentencing conditions of the defendant, such as the age, occupation, character and conduct, family relationship, circumstances after the crime, etc. of this case and the circumstances after the crime, and the above sentencing guidelines shall be determined within the scope of the sentencing guidelines, comprehensively taking into account the following factors:

Results of the mediation of judges by the presiding judge, fixed-term judge

Judges Kim Gin-han